SOUTHERN RHODESIA (CONTROL OF NATIVES). (Hansard, 20 December 1927)

§ Mr. PETHICK-LAWRENCE

I desire to draw the attention of the House to the question of the Native Control Bill which has been carried by the Southern Rhodesian Government. That Government is in a very special position, which is unlike that of any other of the self-governing Dominions. The constitution of Southern Rhodesia, while conferring self-government upon that area, has reserved questions of a certain kind relating to the natives. If a Bill be carried through that Legislature which deals equally with Europeans and natives, it receives the assent of the Governor in in the ordinary way, but if there is any Measure of the Southern Rhodesian Legislature which deals differentially with natives as distinct from Europeans, the assent of the Governor is not given to full acceptance of the Bill until it has been considered by the Imperial Government. Therefore, in this matter of native legislation, the Imperial Government have a very special place provided for them by the constitution of Southern Rhodesia. In regard to this Native Control Bill, I asked the Prime Minister on 6th December whether the Bill had been allowed, and his answer was that it had been reserved for further consideration of the Imperial Government, and that correspondence was actually proceeding between the Imperial and the Southern Rhodesian Governments on this question.

This Bill of the Southern Rhodesian Government contains provisions of a new 370 and a very special kind. It creates new offences hitherto unknown to British law, and gives new powers to certain individuals containing entirely fresh ideas with regard to justice which are unknown to British principles. I want to refer in particular to new offences created by Clauses 52 and 53, which lay down that either the chief headman in one case or any native in the other may be found guilty of insolence or contemptuous behaviour towards Government officials. The offence of contemptuous behaviour is a very novel offence and a very vague and loose offence, and there is a very great danger in allowing a man to be convicted of the crime that his behaviour was insolent or contemptuous. If you once allow loose words of that kind to form the basis of an offence, it is quite possible that men or women or young people may be convicted of a crime who have never intended a crime and whose action is very far from being deserving of criminal punishment. Another offence which is created by this Bill can be that of a native messenger. A native messenger is a kind of servant of the Native Commissioner, and under Clause 41, Subsection (4), any native messenger who shall commit any act or try to disseminate any false report or rumours calculated to cause unrest among the native inhabitants of the Colony shall be deemed to have contravened this Section. The words immediately following the word "or" are alternative. The Sub-section therefore makes it an offence to commit "any act calculated to cause unrest." We had a great deal of discussion when we were dealing with the Trade Disputes and Trade Unions Act on the word "calculated." We know from that discussion that "calculated" does not necessarily mean "designed," and, therefore, any unfortunate native messenger who does some act which can be reckoned as being responsible in some way for, or likely to cause native unrest, becomes liable for punishment under this Bill.

With regard to the character of the punishment, it is either fine or imprisonment. The amount of the maximum fine may seem small—£10 or £20, but I would remind the House, and I am sure the Prime Minister will realise, that a sum of £10 or £20 is a very large sum for a native in South Africa. It very likely 371 means at least half his year's wages and it is a big sum to call on him to pay. The alternative to the fine is imprisonment for six months. So you have the position that a man who can be charged with contemptuous behaviour, or a native messenger who has committed some act which may be considered as calculated to cause native unrest, can be fined £10 or £20, or may be sent to prison for six months. Finally, when we are dealing with penalties, boys of 16 may be subjected to whipping, which, I think, is a very dangerous practice to re-enter upon the Statute Books of the Dominions of this country.

But over and above that, there is a further provision contained in Section 17 which is very novel in British law. It is appointed that native commissioners can try offences committed against themselves; they can be prosecutors, jury and judge all at the same time, and I venture to think that that is a great departure from the principle of British justice. I have reason to believe that the present native commissioners are not only very able men, but are very high-minded, well-disposed men, and it may be said that those men will not abuse the powers this Bill entrusts to them. But I need not remind the House that we make laws not for the present occupants of official positions but for those who may succeed them, and the fact that the present commissioners may not abuse those powers is no reason for passing laws of this drastic and novel kind. Further, the provisions enacted for Southern Rhodesia may well become a copy for other parts of Africa, and it would be very dangerous to set a precedent of this kind. I would, therefore, ask the Prime Minister, who has already shown that he realises the importance of the issues that are involved in reserving this for further consideration and correspondence, to stand firm in this matter in upholding British tradition, and I ask him, further, whether he cannot now undertake to give us an opportunity of discussing this on the Colonial Vote before he comes to a final decision.

§ The PRIME MINISTER (Mr. Baldwin)

I am afraid it will not be possible to discuss this matter at such length as I should like, because of the shortness of the time. I cannot say 372 when a decision will be come to, and I cannot undertake to keep the matter open, although it may be possible to take it on the Dominions Office Estimates. Any points that have been raised by the Anti-Slavery and Aborigines Protection Society have been communicated to the Government of Southern Rhodesia, and certainly no steps will be taken until we receive a reply. I will now reply to the points which the hon. Member has put. He referred to Clauses 41 (4), 52 and 53. These, I understand, reproduce similar Clauses in the Native Regulations of 1910. These regulations were embodied in a proclamation issued by Lord Gladstone when he was High Commissioner at that time in South Africa. Obviously, no British Government could go back on the action of the High Commissioner of a previous Government. The last Clause to which the hon. Member referred is the most important. Of course, there are one or two things in that that look curious to people in this country who are used to our forms of legislation; but I understand that arrangements similar to those embodied in Clause 17 have been in operation for the last 18 years in Natal, and, so far as I understand it, no question of abuse or injustices in that Province have ever occurred, and the law has worked perfectly smoothly.

With regard to the officer being prosecutor and judge at the same time, I think it is only fair to say that the safeguard provided that the cases have to be reported in full to the Chief Commissioner, and that the Native Commissioner has to read over the statement to the prisoner, who can make any observations he likes, and is informed that he has a right to appeal to the High Court. I should like to draw attention to circumstances which naturally would not be familiar to us unless we had studied this question? The great difficulty that the British people are up against in a country like Southern Rhodesia is that they are existing side by side with a native population which is changing very much owing to its contact with civilisation. That contact of a native race with our civilisation may be a good or a bad thing, but it leads to difficulties. The principal difficulty is this—that seeing our institutions and our people and their method of life, the 373 natives are very apt to lose the sense of discipline that they have had in their old family and tribal life, the family and tribe being the influences that have controlled them in the place of the law which has controlled us. That is a very real difficulty, and very often there is a tendency in these people's minds, when they first come in contact with civilisation, to believe that everything that is not forbidden by law they may do. There are things which they may do and which they do, and these things may be bad for them and bad for the country. It is these very things with which the Native Commissioners at present have no power to deal.

Let me tell the House exactly what is in my mind as showing the decay of tribal and parental control. There are cases where native women leave their homes in defiance of family and tribal custom and lead immoral lives at the mines and other centres. Parents often invoke the aid of the Native Commissioner, but the Native Commissioner has no power to send them back because there is no specific law at the moment to prevent them from going out and living the life they choose. If the Native Commissioner has power to give on order, and that order is enforced—an order that is not against morality but is in accordance with the custom of the tribe—that they must go back, they would have to go, because, as I understand it, that would come under Clause 17. There is another case. The Native Commissioner at the instance of a husband ordered a wife who was getting into bad habits in the mine compound to go home. She was convicted of disobeying the order, but the High Court held that the Native Commissioner's action was ultra vires. Again, the police are very often anxious that certain natives who have shown a tendency to grosser forms of immorality, especially acts of indecency against white women should be required to live in the neighbourhood of their own kraals, and they have at times sent them home with a request to the Native Commissioner not to allow them 374 to leave the district or go into a neighbourhood where there are white people, and everyone agrees that such restraint is very desirable. The Native Commissioner may order a native not to leave his own district, and if the order is disobeyed there is at present no remedy. That is a form of contempt of the Native Commissioner's authority, and that is the kind of thing that is implied in the word "Contempt." It would have no meaning at all to us here, of course.

I want the House to realise that the whole of this Act is passed after very careful examination by a committee of experienced officials of the Native Department, and their whole object has been to improve the native. It is extremely difficult to improve people in that primitive state of civilisation and to preserve them from the bad effects of contact with what we believe to be the superior civilisation. I do not believe that there is anything in the action of the Native Commissioners but what is designed to cope with this extraordinarily difficult task, in which I think we ought to show every sympathy. It is quite right that we should examine carefully everything of this kind to see that full justice is done, but at the same time we must not go on the assumption that our people when they find themselves doing this kind of thing in distant countries are lost to the same sense of responsibility and decency which we believe we have here. The House may be assured that, unless my right hon. Friend the Secretary of State in the meantime returns, I shall give the House the answer when it is received from the Southern Rhodesia Government, and that I am the last man in the House to wish to do anything in the nature of an injustice to the native population.