Legal Thought and High Imperialism
During the last quarter of the nineteenth century, diplomats and statesmen in Europe developed a regulatory framework for overseas enterprise. Principally this was done to harmonise the European economy through the establishment of free trade abroad, motivations which overshadowed any Samaritan concern for African nations-in-the-making.
Lawyers helped. Trained in the arts of analÂogy, they envisaged an international community in which only some polities enjoyed full personalities akin to individuals as â€?civilised’, relegating other poliÂties, those geographically situated far from Europe, with only partial personaliÂties as â€?semi-civilised’ or â€?uncivilised’?4 Distinctions like this were crude, and their imposition could be irrational and arbitrary. But they made perfect sense to European academics consciously modelling their team-made enterprise upon the Roman private law of the civitas, the ius civile?5 And the results were catastrophic. By designating the political communities of sub-Saharan Africa with uncivilised status, a cohort of cosmopolitan international lawyers impartÂed defective public personalities upon a slew of polities in order to pre-empt and even to permit the mistreatment and subordination of African communiÂties by European powers after 1884. What the findings of this chapter emphaÂsise is the lasting valence of these distinctions into the new century. Arguments coloured with this language were brought into the Judicial Committee of the Privy Council, between 1914 and 1918, long after the damage, in Africa, had been done. In London, Lobengula was assessed to have been uncivilised all along. Their Lordships then delivered an adjudication of this kind so that it could be given retroactive application, to the disqualification, that is, of AfriÂcan sovereignty in the region for the period before 1893.While he was alive, Lobengula was noticed by many contemporaries to be making deals with anyone and everyone, â€?granting concessions holus-bolus’, ofÂten for the same thing, time and again.[1331] [1332] To the extent that this chapter conÂtributes to a characterisation like this, it does so with a few caveats. First, it may be doubted whether Lobengula understood his concessions to represent excluÂsive arrangements or if he regarded them as a new form of tribute for easily co-existing privileges and liberties. Second, more doubt follows as to whether Lobengula consented to part with the large regions in dispute, or was rather misled by sneaky amendments expanding the areas of operation and distortÂing his original intention. Third, his motivations for entering into new deals and turning his back on old ones were perfectly sensible in a pluralistic context in which contractual agency was one of the few freedoms he was left with. From at least 1888, Lobengula had been calling nonsense on the trustworthiÂness of the â€?white men' around him; from 1890, Lobengula had taken particular exception to concessions commissioned and acquired by Cecil Rhodes, feeling that the corporation was claiming far more than he had originally allowed them to claim. No wonder Lobengula granted more concessions. A very differÂent fate might have awaited the Ndebele king - and, one suspects, the British South Africa Company - if he and his concessionaires were given access to an impartial court with jurisdiction to hear claims of foul play. Of course, if Loben- gula really was the â€?independent Sovereign' described by Schreiner, who mainÂtained, as undersecretarial assistant in the Colonial Office Sidney Olivier sugÂgested, â€?at least some kind of kingly prerogative [...] to back up his new concessionaires', there would never have been any need for such a court.77 One quarter of a century later, Lord Sumner held that all of these concesÂsions had been of a strictly private character, in a nod to the English solicitors who had already filed them away like records of any other asset.