HL Deb 04 May 1932 vol 84 cc305-20

LORD SANDERSON had the following Questions on the Paper—To ask His Majesty's Government whether, in view of the appointment of the Commission to undertake the inquiry into land questions in Kenya, the question of the additional appointment of one or more Europeans who are independent both of land tenure and of financial interests in Kenya, and who are not associated in any way with the Government, and who would represent on the Commission the point of view of the African population of Kenya, will be considered. Further, to ask His Majesty's Government whether the appointment of one or more Africans to the Commission will be considered; and whether the African population will be allowed full opportunities of meeting and discussing the land question during the sitting of the Commission.

The noble Lord said: My Lords, on March 23, the noble Earl, Lord Stanhope, speaking on behalf of the Government, announced to your Lordships that it was intended to appoint a Commission to undertake an inquiry into the question of the land in Kenya. That decision was, of course, in accordance with one of the recommendations of the Report of the Joint Select Committee on Closer Union in East Africa which appeared in November last. On April 12 the names of the Commissioners were published in the Press. The Commissioners are to be three in number, Sir William Morris Carter, Captain F. O'B. Wilson, and Mr. R. W. Hemsted. I wish to make it perfectly clear to your Lordships that I am not saying a word against those three gentlemen nor am I raising any objection to their appointment to the Commission. I am asking for an addition to the Commission. Sir Morris Carter is an ex-Chief Justice of the Tanganyika Territory and has done work in Rhodesia very similar to the kind of work he will have to do in connection with the land of Kenya. Mr. Hemsted is a distinguished ex-Colonial civil servant. I am quite sure that those gentlemen can be relied upon to enquire very conscientiously and very ably into, and to deal very well with, the difficult problems which will come before them.

Had the Commission consisted entirely of men in the position of ex-officials who could not be supposed to be taking the point of view of either the white settlers or the African population, I doubt whether I should have raised this question in your Lordships' House. But Captain F. O'B. Wilson is in quite a different category. He is a white settler and a landowner. It may be, for all I know, that he is actually occupying land which the African population, rightly or wrongly, regard as stolen from them and alienated by the Crown. He has been, I believe, rather closely identified with a section of the settlers who have advocated the alienation of more or of all land by the Crown. Of course, he may be able to keep perfectly impartial on the Commission; I dare say he will. But the African population will not regard him as an impartial member of the Commission, and I think it is not too much to say that some of the white settlers will not expect him to be altogether impartial. He will be looked upon, at any rate, as in the position of a judge who is also one of the litigants.

I am sure your Lordships will agree with me that it is of the utmost import- ance that this Commission should be entirely above suspicion, and that it should secure the complete confidence of the African population. As the Commission is at present constituted this state of things will not be assured. Captain Wilson will be regarded both by the white population and the black as representing the views of the 20,000 white people in Kenya. In those circumstances, as Captain Wilson is there in that position, I think it would be looked upon as an act of simple justice that some one should be appointed who should represent the point of view of the 2,500,000 African people. I therefore ask His Majesty's Government to appoint at least one European member and, if possible, two European members to the Commission, men who should have no connection with land tenure in Kenya, no financial interest in Kenya, who should not be in any way connected with the Government and who should be appointed for their sympathy with the native point of view.

It would also be a great advantage, I think, to the Commission if a man of that kind was appointed, that he should have a real knowledge of native land law and also that he should have an understanding of the technical economic questions connected with the use of land for agricultural and pastoral purposes. Such an appointment would go far, I think, to remove the suspicion of the black people and to give them a feeling of confidence. It would very greatly strengthen the hands of the Commission, because a man such as I have suggested who would be regarded as the friend of the natives, would be able to draw from the natives information of a kind which might be very valuable to the Commission but which might not and probably could not be drawn from them at all by people with whom they had not complete sympathy. I feel that such an appointment would add greatly to the value of the Commission and would help very largely towards the production of a really authoritative report.

I now come to my second Question. I think that it would greatly add to the strength of the Commission if one or two Africans could be added to it. That, again, would certainly increase confidence amongst the African people and remove suspicion. It would have the further advantage, I think, that it would be extremely useful in the handling of witnesses before the Commission. Your Lordships, I am sure, understand that natives coming before a Commission of that kind would be very shy and timid and awkward and would find it difficult to express themselves and give the evidence which they wished to give. If they had on the Commission one or two of their own people whom they would regard as their friends they would be much more at their ease, and the native members of the Commission would be able to put questions to them in a way which they would understand, perhaps, better than if the questions came from some of the European members, and would also be able to explain their answers. I feel sure that, with some natives on the Commission you would get a lot of evidence which you would not get otherwise, and which might be very essential for a proper solution of this question. It may be said, of course, that there are difficulties in putting natives on the Commission and making them full members of it. At any rate, if they cannot be made full members, might it not be possible to co-opt two native assessors?

Finally, there is a widespread belief, I am told on very good authority, amongst the African people that very great restrictions are placed on their right of meeting and holding political meetings. Of course, the District Commissioners have very wide powers with regard to prohibiting meetings. I ask the Government to ensure that before the meeting of the Commission and during the sitting of the Commission these powers will not be used in such a way as to prevent meetings of the Africans, so that full and frank discussion of the land question can be carried on amongst them. Everything is to be gained and nothing would be lost by freedom in this matter. I am sure your Lordships are as anxious as I am that this Commission should be a success, and that it should be a means for settling once for all this very difficult land question, which is a constant cause for serious racial friction. I feel sure that the suggestions I have made will help to make the Commission a success, and will enhance the possibilities of getting a really satisfactory report and a satisfactory solution of this very important problem. I very much hope that the noble Lord who I understand is to reply for the Government will be able to give me a favourable answer.

LORD OLIVIER

My Lords, I do not wish to attempt to add anything to the cogency of the representations which my noble friend has made to the House. I think they cannot fail to impress your Lordships. I wish to deal rather more widely with some points on which I should like a clearer statement from the Government than we have yet had. I may say that I regard with great confidence the attitude which the Government have shown in appointing this Commission. I regard it with great confidence, in the first place because they have for the first time made a departure in the direction which noble friends of mine and myself have been urging for many years. We have pressed them to take cognisance of native claims, and never before this occasion have we succeeded in getting the Colonial Office to admit that they would do so. That has apparently been done now, no doubt owing to the representations made before the Joint Select Committee of Parliament. I also have full confidence in the Government because, on hearing the terms of reference given to the Commission, they struck me, as I think I said at the time, as not only satisfactory but as going even a little further than they necessarily were compelled to go by the expression of opinion given by the Joint Select Committee.

The position is that they have to enquire not only into the general accommodation of natives upon the land, but into the validity of claims made by natives to rights in lands which have been alienated, and to recommend how they are to be dealt with. For the purpose of dealing with that reference the Commission has two functions. First of all, it has a judicial function to enquire, and, secondly, it has a political function to make recommendations, With regard to the judicial aspects of the case, I again feel great confidence in the appointment which has been made by the Government of Sir Morris Carter as Chairman of this Commission. Sir Morris Carter is a Judge and a man of great Colonial experience and of special experience of the kind of work which has to be done in connection with this matter. So far as the terms of reference go, if they are clear, I do not think we can have a report that will be unsatisfactory within those terms of reference. You do not require a very large Commission to keep their report to the terms of reference, but you do require a man of judicial experience and judicial discrimination, and that is guaranteed by the appointment which has been made of the Chairman.

What is important in the judicial aspect of the matter is that the greatest possible care should be taken that proper evidence shall be laid, and that the circumstances shall be fully enquired into. That point has been dealt with by my noble friend. I feel great confidence, with a Commission constituted as it is, with a Judge as Chairman, with a former civil servant who was in the Native or Lands Department, and a settler, that they will succeed in eliciting the facts as to the claims of these natives, and more particularly because the subject matter of native claims in land has been very carefully and exhaustively enquired into so far as two principal sections of the Colony are concerned. These are all very able Commissioners, who no doubt will have brought before them a very large amount of evidence which will be relevant to the inquiry that has to be made. The ground has already been worked over, and I do not think we need have much fear that a Commissioner of Sir Morris Carter's antecedents and experience in similar inquiries would fail to go as profoundly as possible into all the evidence that can be obtained, or (I should hope) to take all due precaution to see that no native witness who might be required should be in any degree intimidated. Still, if by having native assessors the confidence of natives in giving evidence before the Commission would be increased, that would be to the good, and I should be glad to see any kind of assistance of that sort given. So much for the judicial inquiry.

There is a further point on which I am rather doubtful whether the reference is quite clear. It ought to be clear and I want to have an assurance that it is so. The reference is: To determine the nature and extent of claims asserted by natives over land alienated to non-natives and to make recommendations for the adequate settlement of such claims, whether by legislation or otherwise. To examine claims asserted by natives over land not yet alienated and to make recommendations for the adequate settlement of such claims. That, of course, is a new element in the inquiry. Sir William Morris Carter some years ago made a somewhat similar inquiry as to the native lands in Southern Rhodesia, and I want to point out the great difference that there is between the subject that has to be enquired into here and the subject that was to be enquired into by Sir William Morris Carter on that occasion. Sir William Morris Carter on that occasion was enquiring into the policy that should be followed for satisfying the needs of natives in land. And here arises the question of policy. The situation with regard to the rights or claims of natives in lands in Southern Rhodesia was quite different from what the situation is, as we understand it, in regard to the claims of natives to land in Kenya.

The situation to be dealt with in Southern Rhodesia was legally the same as that in Kenya—that is to say, the natives had no rights at all, and they had no claims which a legal mind could recognise, because we had said we did not recognise equitable claims. But in Kenya we have definitely said—and I wish to know whether this is admitted—that we are going to recognise equitable claims founded upon law and custom—such native law and custom as Lord Sumner referred to in the judgment of the Privy Council on Rhodesian lands to which he said natives had no rights. But in this Kenya inquiry I take it—and I wish to have an assurance that it is so—the Commissioners are to take account of native rights according to native law and custom. The discrimination is very clear in the original Charter granted to British Southern Africa in which the British South Africa Company were required to have careful regard.… to the customs and laws of the class or tribe or nation, especially in this respect to the holding, possession, transfer and disposition of land and succession thereto. But when Southern Rhodesia was reconstituted by Order-in-Council, that policy was dropped and the policy which now legally exists in Kenya was substituted. That is to say, that there is no regard to legal customs or the native habit of succession but natives are put where it is most convenient for the Colony to put them.

I want an explicit assurance that the Commission will recognise that the situation in Kenya is different from the situation in Southern Rhodesia and that it is the purpose of the Commission really to enquire, as Sir William Morris Carter is eminently qualified to do, into the question of laws and customs of the natives upon which they found their claims to interests in these lands. It is a perfectly clear point which, on the face of the instruction, I take it was intended, but I should like to have that reassurance.

When I come to the second part of the Question, which is, whether the Commission, with the aid of the Kikuyu and other reports on native land tenure and with the aid of such natives as may be called to give evidence, will endeavour to ascertain the rights of these claims, I realise that it will be a rather lengthy investigation to ascertain who are the people who claim the land and what evidence there is to support their claims. How far they are going into these particulars I do not know, but they will have t o make a recommendation of what should be done, "whether by legislation or otherwise." There we enter the question of policy, and a very difficult question of policy, because we have actually alienated to a large number of Europeans the whole of this land over which many of these natives have these equitable claims. As soon as you come to that matter you reach a question of very great importance to the future of the relation of races in Africa. On that account I share my noble friend's feeling that a Commission which is to make a political representation of that sort is one upon which it would be better to have more representatives of the varying interests than at present. I do not press that point, however, because I see the difficulty, and I myself have rather an objection to the principle of setting up a Commission and putting one man on one side and one man on the other in order to have an apparent balancing of interests. Assuming that you can rely on the equity and common sense of the Commission and on the strong determination of the British Government to pursue a just and satisfactory policy, I would rather have a small committee of properly qualified persons than a large committee in which it might be difficult to obtain such unaniminity as was fortunately obtained by the Joint Select. Committee of Parliament under the guidance of the noble Earl, Lord Onslow.

Therefore, I wish to say that whatever report this Commission may make—and I express no distrust whatever of its character or its constitution—it should be a report for the consideration of His Majesty's Government and a report which will require full consideration by Parliament as to what policy shall be pursued in dealing with native land. On that account I am not disposed to regard this Commission as at present constituted as a final authoritative body which is to decide what legislation should be passed, but as a preparatory Commission for providing His Majesty's Government with full facts on which they may hereafter decide such questions as whether natives are to be allowed to own and occupy land in the highlands, or whether, in any case, natives should be allowed to reside on or rent the land of Europeans except on the very onerous and objectionable condition to which I referred the other day, that they should be bound to work for the owner of the land. It would be very difficult, I think, if we had a large Commission on which natives were represented, to get sufficient agreement to enable the Chairman to make a report. The work of the Commission should be confined, as far as possible, to judicial evaluation of the position and to recommendations as to what claims appear to be equitable. For that purpose it seems to me it would be more easy with a small rather than with a large Commission to present a case upon which His Majesty's Government can arrive at sound and equitable policy. I thoroughly support the caution which my noble friend expressed with regard to points which have to be carefully kept in view, as to the encouragement of natives to give evidence and the careful examination of all interests.

THE CHAIRMAN OF COMMITTEES (THE EARL OF ONSLOW)

My Lords, I want to mention only one or two points upon that part of the Question in which the noble Lord asked His Majesty's Government whether the appointment of one or more Africans to the Commission would be considered. In the Report of the Joint Select Committee on Closer Union in East Africa, the Committee said in paragraph 105 (ii): In view of the nervousness among the native population as regards the land question, a full and authoritative inquiry should be undertaken immediately into the needs of the native population, present and prospective, with respect to land within or without the reserves, held either on tribal or on individual tenure. If your Lordships who have copies of the Report will turn to page 45 you will see in paragraph 107 the Committee say "the multiplicity of languages is an obvious source of trouble." When you have a number of different languages it means that you have a number of different races. There are no fewer than five distinct language groups in Kenya alone. Each of those groups contains several languages and there are numerous dialects as well. Then in paragraph 108 the Committee say: It is not only in the matter of languages that difficulties arise. The many ethnical and tribal divisions carry in their train a great range of variation in customs and tribal laws. To take one instance, the tribal laws governing land tenure are often extremely intricate and are sometimes imperfectly understood. Those two points were borne out by the evidence before us. You have all over East Africa great differences in the various methods of holding land and great differences in language and race. I think therefore that it would be very difficult to appoint one African to represent all Africans of various races. He could only represent one group, or more probably only one race. He would only speak one language and perhaps only one dialect. He would be likely only to understand one system of land tenure and would be quite at sea in regard to the other difficult and intricate matters which would be brought before the Committee. From another point of view I do not think, on the evidence which the Joint Select Committee heard, that natives of East Africa are sufficiently solidified, if I may use that expression, to make it possible to find one, or even two or three or four representatives who would really give fair representation to native views. I do not think it would be possible at the moment—probably it would not be possible for a very long time ahead—to do that. In saying that I am not saying anything against the ability of the Africans who gave evidence before the Joint Select Committee. The Committee have put on record that they were very much impressed by the manner in which the Africans who were called before them gave their evidence, and the time may come when the most suitable representation of Africans on the Legislative Council would be by persons of African descent.

Therefore, my Lords, I agree with the noble Lord, Lord Olivier, and am not disposed to think that the witnesses before this Commission are likely to find much difficulty in expressing themselves. If they are the same as those that came to see us they would show no difficulty and no diffidence, and I should imagine that coming to London for the first time would be far more trying to the nerves than giving evidence in their own country. I think it would be wise to leave the Commission to consist entirely of those of European descent. We formed the opinion that one of the greatest difficulties, if you wanted to put Africans on the Legislative Council, would be to get suitable people. I think you would find the same thing if the question of numbers was overcome. It would be, I think, difficult to get exactly suitable people from other points of view to sit on this Commission. I think the criticism of the noble Lord was perhaps less that there should be persons of African descent on the Commission than that possibly the present constitution of the Commission was not exactly judicious.

I entirely agree with what fell from Lord Olivier as to the desirability of such a Commission as this being small and one that can deal with the subject in such a manner as to present a united report. I believe the Government is actuated by a desire to obtain an authoritative report on the state of affairs in regard to land tenure in East Africa, which was the object of the recommendations of the Commission, and therefore I am disposed to think that it would be undesirable to limit in any way the qualification of the members of the Commission, leaving it to the Government to make the best selection they can. It has been said that one of the members of the Commission, from his situation as a landowner, may be regarded, probably entirely unjustly, as in some way biased. I am content to leave that in the hands of the Government. I am sure they are actuated by a desire to obtain the full information which the Commission recom- mended, and if they have chosen members of the Commission I feel convinced they have done so with the view of obtaining the best information possible. I am entirely content to leave the matter in their hands.

LORD STRATHCONA AND MOUNT ROYAL

My Lords, I am sure the House will be ready to recognise the sympathetic understanding with which the noble Lord who asked this Question enunciated his case. The Commission to which his question referred was not intended to be a body representative of the various interests concerned, but rather in the nature of a judicial or quasi-judicial body to hear the evidence which those interests may desire to bring and will have every opportunity of bringing before the Commission. For this reason Sir Morris Carter was selected as Chairman of the Commission and it is common ground that he is eminently suited for those duties in view of his knowledge and experience not only on the Bench, but of inquiries into land questions elsewhere in Africa. His Colonial service includes the tenure of the offices of Chief Justice of Uganda and Tanganyika Territory from the latter of which he retired in 1924. He had considerable experience on Committees dealing with native land tenure and settlement and land legislation in Uganda. He was Chairman of the Commission appointed in Southern Rhodesia, in 1925, to enquire into land questions analogous to those to be dealt with in Kenya.

The noble Lord who asked this Question seemed anxious to increase the size of this Commission. I agree with those noble Lords who have put the point that it is desirable on these occasions to keep a body such as this as small as possible. As regards the remaining members of the Commission it was felt that the Commission should combine local knowledge with expert experience, and that it would be preferable to secure the services of two fair-minded local men rather than to appoint persons outside the Colony without local knowledge. It is desirable to encourage the co-operation of the non-native community in the difficult administrative problems which have to be dealt with and this policy is, in fact, in accordance with the passage in the Report of the Joint Select Committee on Closer Union in East Africa which says: The Committee are of opinion that the trusteeship of natives must remain the function of His Majesty's Government, but that the assistance of the non-native communities in carrying out this obligation should be encouraged to an increasing extent. In setting up machinery for the detailed administration of the trust the Government should avail itself to the full of the local knowledge and experience of the unofficial elements. The Secretary of State is satisfied that the capacity, knowledge and experience of Captain Frank Wilson and Mr. Rupert Hemsted render them admirably suited for service on the Commission, and everyone who knows them would agree that they may be relied on to carry out their duties thoroughly and fairly.

Both of them in view of their local experience are well fitted to appreciate the native point of view as represented to the Commission. It may not be out of place if I mention here that the Joint Committee attached importance to local official experience in East Africa in connection with the appointment of Chief Native Commissioner. We have in Mr. Rupert, Hemsted a man who was a Senior Commissioner, who retired and made his home in Kenya, and has had great experience in the administration of native affairs. As regards Captain Frank Wilson, about whose appointment the noble Lord, Lord Sanderson, voiced one or two suspicions, he is a settler and—

LORD SANDERSON

I did not exactly voice suspicions, but I felt that they might be entertained by others out there and especially by the African people. I did not suggest any suspicions myself.

LORD STRATHCONA AND MOUNT ROYAL

I must apologise if I was misrepresenting the noble Lord. Captain Wilson is a man whose knowledge of Kenya is as universal as the respect in which he is held out there by all classes. With regard to adding to the numbers of the Commission I have already said that His Majesty's Government is not desirous of doing this and is of opinion that the numbers already make this Commission well equipped for its task. As to the question of appointing an African I would point out the line which was so ably expressed by the noble Earl, Lord Onslow, that in any case the appointment of an African or Africans would involve the difficulty of finding an individual or individuals sufficiently capable of representing the native community generally.

Perhaps I may be allowed to remind your Lordships that on the Native Land Trusts Board set up by the late Government, under the direction of Lord Pass-field, no African was appointed, but this provision was made in the Ordinance: The Central Board may from time to time, if it should deem it desirable, for the purpose of the consideration of any particular matter co-opt the chairman of the local board concerned as a member of the Central Board, and may for a like purpose after reference to any local Native Council particularly concerned co-opt one or more Africans as members of the Central Board. Provided that when, in the opinion of the Governor, there shall be an African or Africans who is or are sufficiently capable of representing and speaking for the native community generally, then and in such case the Governor shall, as soon as may be possible, appoint at least one such African to be a full member of the Central Board. So far it has not been possible to appoint an African for such a position. Equally, with regard to the Council, it has not yet been found possible to make any nominations to the Council, and perhaps I may be allowed to read this passage from paragraph 101 of the Joint Committee's Report: The Committee have been much impressed by the ability of the Africans who have given evidence before them, and they feel that the time may well come, if the unitary system of Government is maintained, when the most suitable representation for the African will be by members of their own community. At the present time the suitable education and experience is lacking on any large scale, and indeed it is doubtful if there are any English-speaking natives who would command the confidence of their own tribes. As to the last point which the noble Lord made in his Question, the Secretary of State will gladly bring the noble Lord's remarks to the notice of the Governor of Kenya, but the Secretary of State is confident that the Governor will be equally anxious to ensure that the natives should have full opportunities for meeting and discussion, not only during the sittings of the Commission but also in the preparation of the representations which they wish to make.

I should like to refer to the point raised by Lord Olivier, and perhaps I may take this opportunity of thanking him for giving us some indication of the questions as to which he wanted an answer given. I am glad that he was able to fall in with the view of the Government in thinking that the personnel of this Commission could not be in any way criticised. He emphasized the sterling worth of these gentlemen who have undertaken to carry out this task for the Government.

LORD OLIVIER

I only emphasized the appointment of Sir Morris Carter, because I do not know the other gentlemen.

LORD STRATHCONA AND MOUNT ROYAL

The noble Lord expressed approval which I was very glad to notice. He will recognise that in relation to the Question on the Paper I cannot possibly enter into the question of policy, but I am glad that the noble Lord on the whole is satisfied with the terms of reference to the Commission. So far as the other part of his question is concerned all I can say to him, speaking from this Bench, is that the intention was that the Commission should accept the facts as they exist to-day, and on that basis deal with the native claims upon grounds of equity, and not be prevented from so dealing with them by any considerations of law.

I think that I have dealt with all the questions raised by noble Lords opposite, but I should like to conclude by saying that I think it would be unfortunate, and indeed very unfair, to assume that in Africa there is not a common interest between the native and European communities. Both are concerned equally and vitally in the development of Kenya and in its prosperity. That is the end to which our whole administration is directed, and here too, as elsewhere throughout the world, I think there is no reason to be ashamed of British administration. I should like to take this opportunity of expressing the gratitude of His Majesty's Government to Sir Morris Carter, Captain Wilson and Mr. Hemsted, for consenting to undertake what will necessarily be a laborious task. The Government trust, however, that they can proceed relying on the good will and cooperation of all sections of the community, and in the knowledge that every section of the community shares the hope of the Government that the outcome of their labours will be a material con- tribution to appeasement by stilling ancient controversies and allaying mutual fears.

EARL BUXTON

My Lords, I wish to say one word if I may. It is that I have listened with great interest to the speeches, especially that of Lord Onslow, and the conclusion I have come to—and I hope it will be the feeling of the mover of the Resolution—is that the Government have made out a good case in this way, that it is better to have a small Commission. They could not possibly have had a better Chairman than Sir Morris Carter, whose reputation I know in my time was very great and has subsequently grown. It is much better to have a small Commission of three. Everybody knows that it is a great advantage from the point of view of rapidity and of arriving at an agreement, and I agree with my noble friend who has stated the Government's case that these three representatives will really represent not only the views of Europeans but the views of the natives as well.

I agree with him that certainly under present condition's a Commission of this sort will look at matters quite impartially, from the point of view of the natives as well as of the white settlers generally. I also think that the proposal of my noble friend to add a representative of the Africans themselves to the Commission is in present circumstances quite out of the question. Lord Onslow, I think, pointed out quite rightly that you could not in present conditions, and with the great variety of native races and languages, get even two members who would necessarily represent the natives as a whole. In those circumstances, and having given the matter the best thought I can, I am inclined to agree with the Government in their proposal to keep this Commission a small one. So far as the personnel is concerned, I am not personally acquainted with the two other gentlemen, although I know them by reputation, but we could not have a better Chairman, and I feel sure that the results anticipated will be fulfilled when this commission sits and reports.

LORD SANDERSON

My Lords, I wish to thank the noble Lord for his very courteous reply to my Question.