One occasionally meets people, even among those who have lived or served in Africa,2 who speak light-heartedly about the study of native law and native courts and seem to imply that it is an esoteric exercise of little more practical importance than, say, archaeology; but it is safe to say that these people cannot have had occasion to give much serious thought to the matter.

The Tswana peoples referred to in this paper inhabit the Bechuanaland Protectorate, where they number altogether about 270,000. In pre-European times they derived their subsistence mainly from animal husbandry and the cultivation of crops, each household producing its own food. Today they are still essentially small-scale subsistence farmers. But to satisfy the new wants developed by contact with Western civilisation over the past century, many persons also pursue new occupations, including above all temporary wage-labour for Europeans. In some areas more than half the able-bodied men are away every year working in the Union of South Africa. Their absence, often prolonged, has led to conspicuous changes in traditional customs and beliefs, and, as will be seen from some of the examples given below, has also given rise to new grounds for litigation.

Two recent judgments in Northern Nigeria have focussed attention on one of the many essential differences between the type of homicide for which the death penalty can properly be imposed under the Islamic law of the Maliki school and the crime of murder under the Criminal Code, and have thrown into bold relief the conflict of opinion which still prevails in that Region regarding the legislation which was intended to resolve some of these differences. These two judgments are of such intrinsic interest and importance that some discussion of their principles and implications seems appropriate to this Journal.

Throughout British Africa today the future of the native courts (otherwise called African, customary, or local courts) is in the melting-pot, and is the subject of much discussion and deep concern. Considerable legislative and administrative changes affecting these courts are already being made, especially in West Africa. What are to be the relations between the superior courts of a territory, predominantly administering English law, and the native courts whose primary law remains African customary law? How are the law, practice and procedure followed by native courts to be moulded and modified to adapt them to the conditions of today and tomorrow? In the study of these important questions a backward glance at history does not come amiss, and may indeed help to illumine the problems of the present.

The more the self-government of Nigeria becomes a reality, the more important is the question of the independence of the judiciary and the more relevant is the question of the law of contempt of court. The judiciary is mainly staffed by British and Nigerian judges and magistrates drawn from the different national groups and regions of the Federation. It is therefore not impossible that as more cases of political interest go before the courts, the judges and magistrates may be exposed to unnecessary suspicion or pressures because of their places of origin, whatever the colour of their skins. Let me illustrate this point.

Two recent decisions of the Court of Appeal for Eastern Africa, both concerned with Isma‘ili Khojas, have implications which extend far beyond the Khoja community. Both these cases seem to involve issues of such importance as to merit consideration and discussion in this Journal.

The legislative provisions necessary to grant independence to the Gold Coast under the name of Ghana with effect from the 6th March, 1957, followed in many respects the precedents established when independence was granted to Ceylon in 1948. As in that instance, the grant of independence to the Gold Coast was achieved by two separate legislative operations, namely, the passing of an Act of the United Kingdom Parliament followed by the making of an Order in Council, but there were some circumstances in the case of the Gold Coast that called for certain special provisions of interest. The purpose of this article is to mention briefly a few of these.

The law of England has been introduced into colonial territories to a varying extent and by various means3; as a consequence, whether adopted en bloc or piecemeal or borrowed by way of Indian law, the English law forms the major part of the law applicable in each territory, and is often the residual law which is called on in default of an express rule. But this reception of the law of England immediately raises a problem of some magnitude; to what extent, if at all, are the decisions of courts in England to be followed by colonial courts? It is somewhat surprising that, at this late hour, the problem should not apparently have been considered by legal writers, except in a useful article by Dr. T. O. Elias4.