Hekima ni Uhuru (Wisdom is Freedom)
Introduction
I was appointed to a Senior Lectureship as one of the founder members of the Faculty of Law in University College Dar es Salaam (UCD) in May 1961. I took up my appointment in September 1961 and left in 1965. If the first stage of my apprenticeship as an academic in Khartoum was mainly about teaching, the second stage in Dar was more about university administration. For the first year we were working in a brand-new institution consisting of three law teachers, fourteen students and a few administrators. This was exciting enough; the fact that this was Independence year made it doubly so.1
Tanganyika (later Tanzania) had achieved self-government in 1960 and Independence was scheduled for December 1961 in a remarkably rapid and smooth hand-over of power. Julius Nyerere, the leader of the Tanganyika African National Union (TANU), was Prime Minister then First Minister during self-government and the first year of Independence, then the first President of Tanganyika when it became a Republic in December 1962. In 1964 the country merged with Zanzibar to become the United Republic of Tanzania.
One of Nyerere’s first acts as First Minister in 1960 was to announce the need for Tanganyika to have its own university. The University College Dar es Salaam Act (Provisional Council) Ordinance was passed by Legislative Council on 16 February 1961. The first Principal was appointed in March/April. He was Cranford Pratt, the Canadian political scientist who had hosted my visit to Makerere in 1955. He and the first Registrar, Jock Snaith, started work in July. I arrived from Khartoum in September, having taught there for a final term. The first students arrived in early October, just two months before Independence. By then staff had been recruited, accommodation arranged, degree regulations drafted and a curriculum for the first Faculty (Law) approved. In October fourteen students from Tanganyika, Uganda, and Kenya had been drafted, some of them diverted from programmes of study abroad.
There were several reasons why Law was chosen as the first Faculty. Lord Denning had chaired a UK Government Committee on Legal Education for Students from Africa, which reported in December, 1960.2 It was highly critical of the practice of sending African students to the Inns of Court to qualify as barristers and recommended that local institutions of legal education should be started as a matter of urgency in several African countries. The report specifically advised that a Faculty of Law should be set up in Tanganyika with all possible speed. One attraction for Nyerere was that Law was one of the major subjects not covered at Makerere or Nairobi, so that UCD could start the subject from scratch. Legal education was given a low priority in the colonial period, partly because law was not seen as ‘developmentally relevant’, partly because law students and lawyers were seen as potential troublemakers – they had played a major role in independence movements in India and West Africa. The outcome was that, at Independence, Tanganyika had only two African lawyers, and the numbers were not much higher in Kenya and Uganda. Another factor was that Law was and is perceived as a cheap subject, requiring no laboratories or special equipment or special accommodation. On this view, all it needed was a room, a blackboard and some chalk (and in time a duplicating machine with stencils). In fact, a great deal of our early efforts were devoted to building a good law library, the need for which was regularly underestimated by higher education planners. The College had no accommodation of its own until TANU, the ruling political party, agreed to lease its new and as yet unoccupied party headquarters to the College Council for three years – a gesture that symbolised the high priority attached by the government to education and the close relationship with the new political leaders.
To start with our students were registered for University of London degrees under a ‘special arrangement’ that was already in place at Makerere and Nairobi. This had some obvious advantages: it virtually guaranteed international recognition at the outset and many practices and regulations could be replicated rather than invented from scratch. It provided a framework, but allowed reasonable scope for teaching local law. However, UCD aspired to be distinctive. The main inspiration for this came from First Minister, Julius Nyerere.
Establishing a university was one of Nyerere’s priorities. It was a symbol of nationhood, it was an important part of nation-building, and he was determined that the educated elite should share his vision of the ethos of an independent Tanganyika. Nyerere was a socialist and a committed egalitarian, but he recognised that a well-educated elite was essential to lead, administer and develop the country. He was also a scholar and teacher. He had studied at Edinburgh and admired the Scottish university tradition; he believed in academic excellence, a fair degree of academic freedom and, above all, teaching and research directly relevant to African problems and needs. Nyerere also expounded a philosophy of law that some interpreted as more liberal than socialist. At the opening of the College he said:
I believe that law is one of those subjects that can only effectively be studied in the environment in which it will be used. Up to now, the Government has insisted that those called to the Bar in England should have a period of reorientation on their return to Tanganyika before they begin to practice at the Tanganyika Bar. Although many of our graduates have found this an irritating and frustrating regulation, I believe that it has a lot of sound reasons behind it. But these reasons no longer apply when the whole training is done within the Territory … We are undertaking a Herculean task, the task of building a united, democratic and free country. An essential part of our national philosophy must be a legal profession of great integrity which not only knows the formalities of law but also understands the basic philosophy which underlies our society. Our lawyers and our Judiciary must, in other words, not only appreciate that law is paramount in our society, they must also understand the philosophy of that law. It is essential in a democratic society that every individual believes in the equality of all its citizens that every individual should be subject to the law. Further, it is of paramount importance that the execution of the law should be without fear or favour. Our Judiciary at every level must be independent of the executive arm of the state …3
The mandate for UCD and the Law Faculty was clear. The University should aspire to international standards of excellence, to traditional (Western) academic legal values, but it must contribute to nation-building, focus on African problems and conditions, and study law in its local context. These were not empty words and Nyerere was a charismatic leader. Inevitably, over time there were tensions between elitism and egalitarianism; between academic freedom and commitment to national ideology in the context of a ‘war on poverty, ignorance and disease’; and between safeguarding security and national sovereignty and liberal ideas of the Rule of Law. There was a continuous tension between building on traditions of higher education of the former colonial powers and developing genuinely African institutions. All of these stresses were present from the start, and they surfaced from time to time, but in the early days the founders had a clear and inspiring mandate. Furthermore, Nyerere’s reputation and charisma attracted bright and adventurous people who might have been less comfortable in more staid and traditional places, such as Makerere. Nearly all recruits to the academic staff in Dar were in tune with the goals and ethos of the institution and were trying to break free from a narrow and formal style of legal education.4 Nyerere’s emphasis on independence, nation-building, law in context, Rule of Law, academic freedom, liberal education and excellence were all appealing and being involved at the start of a brand new, innovative institution was immensely exciting. Later, when UCD became a centre of Marxist critiques of Nyerere’s pragmatic socialism, I would have been less comfortable and, indeed, in one period from 1975 the Faculty was sharply divided between Marxists and others and there was a rapid turnover of staff.
Historians of the Dar Law Faculty – there have been several5 – have categorised the early days as ‘the nationalist period’ implying that there was no overt political ideology, in contrast with the phase following the Arusha Declaration6 and the later phases of noisy Marxism and structural adjustment. Given the emphasis on independence, nation-building and forging a national identity this may be an apt categorisation. But there was a bit more than that. In 1963–4 Patrick McAuslan and I were asked to draft what would now be called a ‘mission statement’ for Law to be included in a prospectus for schools. This is what we wrote:
In the Faculty of Law at Dar es Salaam, lecturers have been appointed, syllabuses planned and methods of teaching devised, with a single important consideration in mind: the fact that the lawyer in East Africa has to be much more than a competent legal technician. With the coming of independence, the manifold problems that beset developing countries have to be faced and, in doing this, great changes will have to be made in the framework of society. Lawyers have a vital role to play in these developments for upon them will fall a major share of the work of putting into practice the principles and ideas of their colleagues in the fields of politics, economics and science, and ensuring that the resultant system works fairly and efficiently. Legal education must take account of these facts, and see that students are made aware of and prepared for their future role.
Legal education for East African lawyers must therefore entail more than the accumulation of knowledge about rules of law – to know much law is not necessarily to be a good lawyer, although it is the foundation upon which most legal education must rest. The good lawyer is the one who knows also something of the society in which the law operates and the processes by which the law may change and be changed by that society. Thus, we teach the law as it exists in East Africa today, but we do not stop there; we use this law as a firm base upon which future developments may be considered. In this way we hope to be able to produce lawyers who will have thoroughly mastered the techniques of the law: how to search out all the relevant authorities on a particular point and marshal them in a coherent form; how to read a case in order to understand it fully; how to analyse and interpret a statute; and how to put across one’s point of view in speech and writing. But over and above all this, they will have studied that law against the social and economic background of the East African jurisdictions; and will be in a good position to offer useful contributions to discussions of what the law ought to be in East Africa.7
There are several key terms in this statement that became central themes of our early efforts: technical competence plus local law, local context, skills, policy, including practical implementation of policy and the contested concept ‘development’.8 Looking back, we may have been naïve, idealistic and too much in a hurry, but I think that we can say that we did our best. We scoured the local law reports for East African cases, we set up an archives project for local legal records; we gave priority to preparing local teaching materials and developing a local legal literature. We tried to be sensitive to social, political and economic context: most of the law we taught was imported, but every doctrine, every statute, every case or other transplant had to be subjected to critical scrutiny: does it fit local conditions?
In fact, in the early years after Independence we could not have ignored context if we had wanted. In UCD there was a challenging, critical ‘common course’ focused on development: interdisciplinary, university-wide, sometimes attended by the President himself. The fact that we had students from Kenya, Uganda, Zanzibar and Malawi, as well as locals, forced us all to be comparative and contextual. Similarly, the situation was one of dynamic change. The absence of textbooks, the fact that we were dealing with several countries and jurisdictions, the heady political atmosphere and the rapidity of change combined to make it virtually impossible to teach or learn law as a static system of abstract rules. We were forced by circumstance to be contextual, critical, comparative and to be concerned with how to think about dynamic problems and values; both teachers and students had to study primary sources rather than to rely on textbooks that encourage rote learning of dry facts and bare rules. We felt that we were pioneers and truly radical. But looking back, Issa Shivji was right – even the most committed radicalism has severe limits, especially for law in which tradition is a central characteristic. We were subject to path-dependency. We had of necessity to rely heavily on English secondary literature – and even fifty years on the new curriculum in Dar es Salaam depends rather a lot on English and American texts.
During the next four years I was kept very busy researching East African Law in order to teach it, drafting memos and regulations, visiting secondary schools throughout the region to publicise the Faculty, helping to recruit staff and sitting on numerous committees at Faculty, College and University levels. When A. B. Weston (known as AB) was away on leave (for a total of about eighteen months) I was Acting Dean. In addition, the original three academic staff were involved in discussing buildings with the architects (including helping to design housing for staff), debating the use of vacations, gowns, methods of assessment, legal records and law reform. Conscious of the need to innovate, we made many adjustments and proposals that deviated from tradition, but in retrospect many of these ideas look quite commonplace and minor. Most of the activities I was involved in were part of the bread and butter of academic life. They are quite well documented, but if they are at all interesting that is mainly for specialists. So rather than try to give a comprehensive account, I shall merely sketch a few anecdotes that put some flesh on the bare bones of this kind of academic administration.
People
A. B. Weston
Our first Faculty Meeting was held on a bench in the park in Russell Square in London in May or June 1961. The three founder members – AB, Patrick McAuslan and myself – were in process of rebelling against our English legal education. AB had started in Australia, spent two years in Oxford, en route to Canada, where he was already known for his unorthodox views. Patrick McAuslan had also been at Oxford, but had spent part of his National Service in Nigeria. A year in Chicago and three years in Khartoum had almost cured me of Oxford. So there were three Oxford graduates, sitting in a park in London, devising the first curriculum for a new institution that none of us had seen. A protoptypical neocolonial scene – except that we thought we were radicals.
We drew up the world’s greatest curriculum in less than half an hour – perhaps the shortest ever meeting of the Dar Faculty of Law? There was then a lull in conversation. To fill the gap, I asked my new Dean deferentially: ‘What are you working on?’ He replied: ‘I am writing a book on John Austin’ (the nineteenth century jurist). This was mildly embarrassing and rather disconcerting, since Austin stood for all that I – and Dar – should be against. Still better keep on the right side of the Dean. ‘How far have you got?’ I asked. ‘I am starting tomorrow morning’, said AB.
Eighteen months later, AB was on leave, sailing on his yacht in the Mediterranean, when he was involved in a collision with an even bigger yacht. Not much harm was done and the two captains tied up and had a drink. ‘What do you do?’ asked AB. ‘I am a writer’, said Leon Uris, the novelist. ‘What do you write?’, asked AB who should have known better. Leon Uris was rather surprised that AB did not recognise his name: ‘Oh, pot boilers’, said Uris who had made millions from Exodus and other big fat books:
This is one of many A. B. Weston legends that he fostered himself.9 Even if the stories are fanciful, they catch some of his character: he was an adventurer, charming, unconventional, breezy, very clever, charismatic and a brilliant linguist. Furthermore, he did not take himself too seriously. He had been a pilot in the Australian Air Force and I remember vividly his trying to commandeer the controls of a bumpy single-engine plane over the Northern Region as three of us flew up to represent UCD at a meeting of the University of East Africa at Makerere. We survived the journey, but arrived like three cowboys in safari clothes late for a meeting at which almost everyone else was wearing ties and business suits.
As Dean, AB took on some tasks with great energy, but left the rest to us.
Students
The first fourteen students came from four countries (including Zanzibar).10 The second cohort which was more than double the number also had students from Malawi. They formed the first generation of locally educated lawyers in East Africa. They were a well-educated elite from the leading secondary schools in the region, their English was excellent and they were highly motivated. It is not at all surprising that most rose to prominent positions in law and public life. They include, I think, one Prime Minister, One Chief Justice, one President of Malawi, many judges, law officers and some substantial academics. As teachers we got to know them quite well and kept in touch with many of them afterwards. A study of the subsequent careers of the first three or four cadres and how they fared in their respective countries, and internationally, would make fascinating reading.
For example, Julie Manning was the only female in the First Fourteen. In 2011 she was one of the six people honoured at the University’s Fiftieth Anniversary Celebrations. Her encomium states:
[H]er educational career story is incomplete without mentioning how – as the only university female student [others would say as an only female among male ‘wolves’] during that time – she coped and managed to survive the currents!’11
She worked in the office of the Administrator-General and then moved to the Attorney-General’s Chambers as a Parliamentary Draftsman. In 1973 she was appointed the first lady High Court Judge (Acting), but in 1975 she was nominated as a member of Parliament and became successively Minister of Justice, Minister Plenipotentiary of the Tanzania Hugh Commission in Ottawa, member of the National Electoral Commission, Commissioner of the Law Reform, Chairman of the Parole Board and so on. Not surprisingly, she was the first, and often the only woman, to hold these posts. Soia Mentschikoff, as a lawyer, was called ‘the first woman everything’. Although a very different personality – quiet, self-contained, efficient – this equally fits Julie Manning. At the Celebrations it was announced that a student Hall of Residence would be called Julie Manning Hall.12
The careers of many of her peers were equally remarkable.
Colleagues
Patrick McAuslan was scholarly, politically committed and dedicated to UCD.13 He was also indefatigable, stimulating a new verb in Kiswahili – KuMcAuslan. Kiswahili is a wonderfully inventive language especially in its use of prefixes: mhuru means a free man; kihuru the language of freedom; acha or weka huru (to make free, liberate), uhuru the concept of freedom (independence). The students tended to give all staff Kiswahili nicknames: for example, Jim Reid was fittingly known as ‘Bwana Twiga’ (meaning Mr Giraffe); others were less complimentary; I never learned mine. But I did learn that the students coined KuMcAuslan (i.e. to do a McAuslan), meaning to lock yourself in your room and concentrate on your work for seventy-two hours without a break. If they had extended this to UMcAuslan (the essence of McAuslan) it would have carried the connotation of relentless, concentrated work over substantial periods of time. Patrick and I were close colleagues again for ten years at Warwick and remained friends until his death in 2013.
Our first local appointment was P. J. Nkambo Mugerwa from Uganda. He had recently graduated from Cambridge, but unlike the Dar Oxonians, he had not rebelled against his legal education. He was visibly uneasy about our ‘radical’ approach, but we got on well enough. He claimed to have discovered Sweden, as the first known Ugandan to have been there. After a short time at Dar, he was appointed Solicitor-General of Uganda, later Attorney-General. He was still in post when Idi Amin took over. He had a difficult and dangerous period until he quietly retired to take up farming and private practice. Several colleagues became friends and continued to have close contact long afterwards. Jim Read became the hub of the study of Law in Africa at School of Oriental and African Studies (London) (SOAS) and was famed for his capacity for friendship. Sol Picciotto, who like me had studied law at BNC and Chicago, was politically involved on campus in Dar and helped design the interdisciplinary course on ‘Development’ which the whole UCD community was expected to attend. Like McAuslan, he became a founding member of the Warwick Law School. Yash Ghai, was a Kenyan citizen and an Oxford graduate. I was sent to Harvard to recruit him in 1963. He remained in Dar as a core member of the Faculty until 1971, including being Professor and Dean during a very difficult period. Yash, who is still a close friend, followed a stellar career as a public lawyer and as a constitutional adviser, the architect of many post-Independence constitutions, including chair of the Kenya Constitutional Review Commission (2000–2). He will feature again at Warwick.14
Visitors
If Khartoum in the late 1950s was more central than Aberdeen, during 1961–65 Dar es Salaam was even more central than Khartoum. It had the same kinds of visitors who turned up in Khartoum, except for fewer Middle Easterners and more Americans. This was the period when America discovered ‘Africa’; but Tanzania was also a magnet for donors, boondoggling academics, improbable salespersons, politicians, journalists and other tourists. It also attracted political exiles from further south: members of the Mozambique Liberation Front (FRELIMO), founded in Dar es Salaam and led by Eduardo Mondlane, who was often seen on campus; Terry Ranger, deported from Southern Rhodesia, who became Professor of History in 1963 and pioneered oral history in Africa;15 Herbert Chitepo, a distinguished lawyer, in exile from Malawi; and, after I left, the radical historian, Walter Rodney, whose How Europe Underdeveloped Africa (1972) became a classic of anti-colonialism.16
As in other contexts, when a place becomes fashionable, Americans predominated. They would have threatened to swamp us, except that few Americans stayed long enough to make a lasting impact. Just before we realised – perhaps because of this occasion – how very inappropriate the institution of even semi-informal High Table was in this context, we sat down one night with Philip C. Jessup, Judge of the International Court; Justice Thurgood Marshall of the US Supreme Court; Samuel Rosenman, influential adviser to Roosevelt and Truman; Murray Schwartz, later Dean of UCLA Law School; and a number of less well-known academics, diplomats and politicians. It was interesting, it was exciting, it made us feel good – but it was not symbolically appropriate and it was as evanescent as any other examples of tourism. High Table went and with it an element of communitas that never got replaced.
Ambiguous symbols
Gowns: symbolic – of what?
The first controversy in UCD was not overtly about neocolonialism or ideology or the meaning of ‘development’, or different approaches to teaching law. It was about gowns. It rumbled on for a long time.17 Briefly the story goes as follows: all of the founding members were determined to create a distinctive institution suited to local needs and aspirations that was clearly different from the elitist, traditionalist sister institutions in Kampala and Nairobi. The very first testing ground for this ambition centred on academic gowns. Before any academics arrived, the senior administrators had asked: what colour should the gowns be? What would clearly differentiate our students from those at Makerere (Kampala) (red) and Nairobi (blue)? They decided on saffron – like the robes of a Buddhist monk – and ordered fifty. As soon as the first academics arrived, the very idea of having gowns was challenged – but for a variety of reasons. The first objection came from a pragmatic Englishman (guess who?): ‘The climate in Dar es Salaam is much hotter than it is in Kampala and Nairobi – gowns are unsuited to our context.’ The administration retreated and proposed that gowns should be optional at lectures and at meals (other than High Table). An American Professor objected: ‘Gowns are just an outmoded British idiosyncrasy – like wigs, pinstriped suits, rolled umbrellas, and High Table. No American student would be seen dead in a gown – so why impose this on Africa?’ The next objection came from a Danish Professor of Economics: ‘Gowns exactly symbolize the kind of neo-colonialism and elitism that we are determined to avoid. They are politically incorrect.’ A senior Tanzanian administrator, bemused by these squabbling expatriates, pointed out that colourful ceremonies and dress are an important part of African tradition and that a degree ceremony without gowns would be considered very alien. In the end pragmatism trumped climatology, tradition, ideology and local custom. The administrators said: ‘We have already paid for 50 gowns out of public funds and there will be a scandal if we do not use them.’ The Academic Board reached a typically British compromise: ‘Gowns should only be worn on formal and festive occasions.’
In a witty memo, Professor Eric Svendsen, an economist, caught the spirit of the debate:
In this wider framework gowns may be said to be a minor matter. In this I cannot agree, however. To me gowns tend to stress the distance between students and other members of society. They help to create a feeling of belonging, not to society in general and taking part in this society’s endeavours to change and develop itself, but rather to a group of higher educated people whose privileges and special conditions are anyway so different from those of other young people that they should not be stressed again.
And I fear that gowns may lead to manners and behavior which like the gowns have not been created or have matured on African soil, but come from somewhere else …
Finally, I would myself – as a graduate of a Danish University not possessing a gown – rather raise this, than hear it be brought up by somebody else as a semi-argument against my view of gowns. I think that it is a fortunate thing that we originate from different sets of traditions, even if I have to turn the Old Danish fairy tale upside down and let the gownless boy speak to the bewigged emperors.18
That was not the end of the story. When the first students arrived, immensely proud to be joining a real university, they accepted their gowns with delight and wore them whenever opportunity arose, including when they went to discos or shopping. The administration put a stop to that – it was too conspicuously elitist. Shortly afterwards the TANU Youth League adopted green shirts as a form of uniform and decreed that these should be worn by Tanzanian students on suitable occasions. This was interpreted as including lectures, shopping, movies, discos and demonstrations. The Tanzanian students conformed, but considered this uniform to be second best. Meanwhile for academic staff ties, suits and shorts became taboo.
The TANU Building, 1961–3: national pride or political subordination?
UCD’s first home was the TANU Building, the brand-new headquarters for the ruling party.19 That fact alone has, and had, potential as an ambiguous symbol: a leftish university from the start under the wing of the political party in a de facto one-party state – TANU was short of funds, said the cynics, and a homeless, hastily planned university was a soft touch; or it symbolised the high priority and the pride attached by Tanganyikans to having OUR university – a compliment and an act of faith, said the idealists; or it was a contingent matter of chance, said the pragmatists – the building fell vacant just as the College was looking for temporary accommodation. Take your pick.
The place and design of the building were also symbolic. The front looked out on Mnazi Moja – an open space where some of the most important pre-Independence rallies were held. The back looked over Kariokoo – corrugated iron and rusty petrol-can roofs of a quintessentially African shanty town, a bit upmarket from Magomeni and other ‘African’ areas. The boasts of multiracialism and non-racialism in the colonial period did not disguise the de facto zoning – the building was on a clearly marked boundary of an African area, the front looking out towards the largely Asian commercial sector of Dar es Salaam. Though hardly a sky-scraper or even a tower block, the TANU Building, modern and clean, stood out above all the rather shabby surrounding houses and commercial buildings and commanded revealing views in every direction. To the front one could just see Dar es Salaam harbour over the shops and offices of Acacia Avenue; to the north one could see over ‘the African quarter’, houses, small shops, Kariakoo market right to Observation Hill, 6 miles away where the permanent site was to be – who would observe whom, we wondered? Snuggling against the back wall of the College was the first of a street of brothels – one of Dar’s classiest red-light districts – where watchers on the roof could peek down and see sailors, many locals and the occasional tourist haggling and maybe hope to catch a glimpse of a student or even an uncircumspect colleague sneaking in. How convenient for the students, said the cynics; how shocking, said the strait-laced; sums the place up, said the critics.
The TANU Building proved to be a quite functional office block – short of suitable rooms for teaching, but otherwise quite convenient to start with. In the second year, when the Law Faculty were moved out to an old German Bank building in Acacia Avenue, both students and staff complained. Lectures were in a vault with no windows, the ceilings were low and the whole place was unbearably hot and stuffy, inducing everyone to spend as little time there as they could. The TANU Building was cool, spacious and elegant by comparison and after very a short time it seemed so much like home that we hardly noticed the incongruity of having High Table on Thursday nights, complete with gowns, grace and wine, on the top floor of a socialist party headquarters at the edge of the red-light area of an African seaport.
Architecture and elitism
Observation Hill is 6 miles from the centre of Dar es Salaam. The government presented UCD with a site of 850 acres on two ridges at heights varying from 105 ft to 350 ft above sea level. It overlooks the city and the ocean and in most parts catches cooling breezes or more vigorous winds. Planning for the site began immediately. Norman and Dawbarn, who claimed to specialise in tropical universities and airports, were appointed architects. Their brief was to design and oversee the building of the first stage of a self-contained campus including teaching, administration, library, student accommodation, staff housing etc., as far as possible using local materials and local craftsmen. It was to be excellent without being ostentatious. The first stage was completed by 1964 in time to welcome the fourth intake of students, the first for Arts, Social Sciences, and Science – a remarkable achievement.
‘Only the name of the airport changes’, says Calvino. Much the same is true of modern campus architecture. The architects and planners had to balance functionality with economy, excellence without conspicuous grandeur. The result is immediately recognisable as a modern university. Concessions were made to economy by providing almost no air-conditioning, in the use of materials and by accommodating most of the students in tower blocks which were understandably unpopular. I very much enjoyed following the architects around on the splendid site while it was still bush (there was said to be a lioness in the vicinity), sitting on various planning committees, and helping to design the first staff houses, probably too enthusiastically – the first ones, including ours, had prime sites and were very agreeable. Later ones were rather less enviable.
I found the exercise fascinating. The buildings fitted the magnificent site and the end-result was fine, but not architecturally distinguished. There was one exception to this. One day the Aga Khan, leader of the Ismailis, asked for an appointment with Cran Pratt, the Principal. During the meeting he indicated that he would like to fund a non-sectarian mosque on site. This was embarrassing because there was an issue about how secular the institution should be – shades of UCL. The idea of a chapel had been rejected. So Cran thanked him but prevaricated. The Aga Khan indicated that he would ask his architect to make some preliminary sketches anyway. ‘My architect’ was Walter Gropius. In time a Gropius mosque was built and a single chaplain and various other religious dignitaries were appointed. Critics of the institution still called it conspicuously elitist – which, of course, it was by local standards.
Academic matters
First class
I gave the first lecture of the whole institution. There is a slightly schoolboy-ish element about the story, but it makes the point that we were not going around all the time thinking ‘we are making history’ – at least some of us weren’t. AB was preoccupied with ordering books for the library, and begging them from embassies and High Commissions, a task he insisted on dealing with personally. He was determined to have ‘the best law library in Africa’ – he still talked about ‘Africa’ as if it was one place. As he seemed a bit pressed, I offered to take his lecture for him on Tuesday. It was only afterwards that we realised that it was the first lecture in the history of the institution.
The first class was just the start of the course on Introduction to Law – not really a lecture at all – just fourteen students and I getting to know each other. There is no record of that event. However, there is a film of another class shortly afterwards. Not surprisingly, the early weeks of the first term had quite a lot of razzmatazz – opening ceremonies, press photographers and public relations exercises. A Canadian TV crew came to make a film for the first weeks of the College and asked permission to come into my class. I agreed, provided that they did not disrupt it. Although I had to make three entrances and start my presentation four or five times, I was quite pleased. Unfortunately, the topic for the class – half lecture, half discussion – could hardly have been less appropriate as a means of signalling what we were trying to do in teaching law differently. It was Hohfeld’s analysis of the concept of ‘right’ – an important subject, I still think, but associated with the kind of dry, abstract analytical approach which we were meant to be breaking away from. I never saw the TV film, but a still photograph from it appeared in several Ford Foundation publications, showing me sitting at the head of a seminar table with the First Fourteen and this very formal analytical scheme prominently displayed on the blackboard behind me. AB was probably the only person who noticed this and he teased me about it for a long time (not least because I had been rude about his beloved John Austin, another analytical jurist), but he always added: ‘At least you weren’t lecturing.’ Significantly, I was wearing an Oxford MA gown and a tie.
Custom and customary law
In both Khartoum and Dar es Salaam I tried to study and teach about ‘customary law’ and custom, both the limited amount that was recognised as part of state law, and the much more extensive traditional customs that were still of great importance, especially in rural areas. It was very difficult to do so. There was some good work on this in both regions by social anthropologists.20 These were local, episodic and did not provide much insight into the interaction between state law and custom. More important, there were conceptual problems about custom and customary law and methodological problems about how to describe or expound them. In particular, did customary law consist of rules in the same way as modern state law was said to do?
During my time in Dar es Salaam both the Kenyan and Tanzanian governments were trying to accommodate customary law within the state system, both to give it more prominence and to control it. In Kenya the Restatement of African Law Project (based on SOAS) tried to record and ‘restate’ selected branches of law of particular peoples (‘tribes’) into code-like forms; in Uganda the policy was less clear, but over the years the trend was towards assimilating or replacing custom and customary law within the state system. Some of the Ugandan students were quite patronising about custom. In Tanzania – more radically – they asked Hans Cory to ‘unify’ the customary law of over a hundred peoples. Cory was a Viennese who had come out to work on a sisal estate in Tanganyika in his twenties. He claimed to have attended Freud’s lectures, but he never obtained a degree. However, he was fascinated by the local people and he wrote copious notes about their customs, religions and practices. After some years he had spent much more time doing genuine field-work than most anthropologists have the opportunity to do and, though he was self-taught and his methods were elementary, over many years he collected a vast amount of data. Eventually, Cory published two books on the law and custom of the Sukuma and the Haya and one on African figurines.21 During the colonial period he was employed as a government anthropologist to advise officials about local custom and public opinion when government policy seemed to be running into opposition.
Government anthropologists were widely regarded as colonial spies but, after Independence, Julius Nyerere employed Cory to try to unify customary law by producing a code that combined or harmonised the disparate values of allegedly 120 different peoples. The motive was political: to unify law as part of building a unified nation. The means were controversial, for two main reasons. First, there were severe doubts about the extent of uniformity or of public consensus about quite a few rules; for example, whether bride wealth should be a condition of validity of marriage, whether adultery should be punishable as a crime as well as a civil wrong; and the rules of inheritance. Secondly, ‘codifying’ customary law both imposed an artificial rigidity on what was generally a very flexible set of norms, and translating custom from dispute processes that usually ended in compromise to the all-or-nothing forms of Western adjudication involved a radical change of procedural context. As one Minister of Justice put it: ‘People leave colonial courts as enemies, they leave African processes as friends.’22
Knowing about Cory’s project and the controversy, I invited him to give a seminar on the subject to our first cohort of students. I had briefed them about the controversy and some of them, especially the Ugandans, were quite hostile to the idea of unifying and codifying customary law. Cory had brought with him from Vienna an image of the Germanic Herr Professor whose wisdom was accepted unquestioningly by his students and he was quite put out by the sharp questioning he faced when he had finished speaking. He had argued that the general principles of African customary law were indeed uniform, the differences were trivial and that he had had no difficulty in reaching consensus and gaining acceptance of his draft when he went around the country holding barazas – public meetings – to discuss it. The students were sceptical and there came a point when the exchanges were becoming acrimonious. Suddenly Cory started drumming on the table, using a recognisable rhythmic beat; soon the students joined in and everyone was drumming in time. ‘Look,’ he seemed to say, ‘it is easy to get consensus.’
The unification project was based on the questionable assumption that rural customs were nearly all much the same and it clearly involved dubious methods. When I visited Chicago in 1963 my trip was financed by three public lectures on ‘The Place of Customary Law in the National Legal Systems of East Africa’ in which I was quite critical of both the Kenyan and Tanzanian approaches.23 The main ground was that divorcing customary ‘rules’ from the context of the social processes in which they traditionally operated changed both form and substance of these ‘rules’ significantly. The processes rarely involved pure forms of third-party adjudication. Philip Gulliver was surprised to find that among the Arusha of northern Tanzania the outcomes rarely accorded with the articulated rules. When he returned to England he realised that this finding was not as surprising or original as he had thought, for the outcomes of personal injury litigation in England rarely accorded with the rules as expounded in Salmond on Torts.
In East Africa there was, admittedly, a policy dilemma: how could local courts apply local custom without reliable information about it? And, what if the magistrates were not local?24 But reducing them to written, code-like form changed their nature. How people articulate, invoke, use or interpret rules depends on context. And can one assume that a people’s ‘customs’ are monolithic or part of one coherent system? For example, a well-known anthropological anecdote in East Africa concerned the naïve reaction of a researcher observing the dispute processes of a coastal group who regularly invoked two well-established sets of norms: one claimed (not always convincingly) to be rooted in tradition, the other in religion, mainly Islam or Christianity.25 Typically in group decision-making processes concerning such matters as marriage formation, inheritance, and family disputes, one party (and his or her supporters) invoked ‘traditional’ norms, the other invoked religious ones. The outcomes bore some connection with the norms, but there was no obvious pattern of lexical priority or choice of norm rules. Often there was compromise. When asked why the group did not simplify their social life by deciding which body of norms had priority or by integrating the two sets into a single consistent code, the interpreter was amazed: ‘How could we possibly proceed if we had only one body of rules?’ As one of my Belfast students remarked, the observer’s question was perceived to be rather like asking: ‘Why don’t they decide which is the best football team before the start of the season?’ Recent anthropological research reports similar phenomena as quite widespread.26
In Ethiopia I learned that Professor René David, while ‘adapting’ the French Civil code for local enactment, claimed that he ‘hated customary law’ and wished to abolish it (how is that possible?).27 Some scholars began to suggest that ‘customary law’ was largely an invention created by interaction and negotiation between colonial rulers and indigenous leaders pursuing their respective interests, rather than long-established tradition.28 This fitted in nicely with my views, but made it even harder to teach about the subject. These experiences also taught me that equating ‘law’ with state or municipal law is quite inadequate, especially in the countries of Eastern Africa. That is one reason why jurists need to take the concept of ‘non-state law’ seriously.29
Later these African examples led me to dig deeper into the very influential American Restatements, on which the Restatement of African Law was purportedly modelled. In fact, the context was rather different. I concluded that the American version was a form of private quasi-legislation calculated to by-pass state legislatures to produce a virtual system of ‘American Private Law’. This product of teams of jurists became influential partly because the Restatements were quoted as persuasive authority in the courts but, perhaps more importantly, because elite law schools and advocates used them as a source of a fictional unified ‘American law’, despite the fact that private law was constitutionally largely a matter for the fifty-one semi-autonomous states. The legal establishment wished to maintain the unity of the common law in the United States; the elite law schools aspired to be, and became, national rather than local institutions on the foundation of a controversial juristic hybrid – a virtual body of substantive law.30
Continuity and change in legal education
My period in Dar involved me in a number of issues relating to legal education policy and cemented my interest in the subject. The gowns controversy is one of many stories that illustrate how difficult it is to break away from foreign models. With an institution like a university one can make adjustments at the margins, as with gowns, but basic structures, attitudes, habitual practices and entrenched traditions are much tougher to change, or even to adjust to fit local conditions. This is also true of teaching law. UCD was in a special relationship with the University of London and the first law graduates read for a London LLB. The authorities in London, while insistent on the ‘standards’ of the University of London, were surprisingly flexible about content. They positively encouraged us to teach about the legal systems and the constitutions and the laws of East Africa, so far as this was feasible, and we tried very hard to do this. The problem was how. For example, we had a course on the Constitutions and Legal Systems of East Africa – in 1961–3 Kenya, Uganda and Tanganyika all had new constitutions and were in process of debating and reforming their court systems, sometimes in strikingly different ways. In my second year, I was again teaching Torts – but how does one teach the East African Law of Torts, when there were only a handful of reported cases and no books?31 Even today, how does one teach about local customary law of wrongs in detail and depth? These are real – and to some extent continuing – problems. We did our best and, in some respects, we made a virtue of necessity.
The task of gathering local materials was hard, especially in relation to customary law, but it was made harder by the fact that this was the immediate post-Independence period and people talked as if everything was up for grabs.32 In fact we were more subject to path-dependency than we realised. For us the central question was: how could one sensibly teach about law in East Africa in the absence of a secondary literature in a period of momentous change? It seemed to us that there were two main options: first, to prepare elementary local textbooks and study aids so that the students could have some solid information to learn; or, secondly, to teach about problems of law in East Africa, sacrificing coverage of technical detail and focusing critically on the suitability of the existing state legal systems to the circumstances and needs of the various countries in the run-up to and aftermath of Independence.
In Nigeria, the local law schools, which were founded in the same period under the leadership of Jim Gower, gave a high priority to producing basic expository works and outlines on aspects of Nigerian Law. In Dar, we followed a different strategy. We used English-language textbooks and casebooks33 supplemented by local materials. Where the course had distinctive local dimensions, we emphasised the materials. It is sometimes suggested that we followed an American model of cases and materials rather than a British model of textbooks. That is only partly true: like American law teachers, we emphasised primary sources; we were not too concerned with coverage, and we tried to proceed by discussion as much as lectures – which was easy with our First Fourteen. But conditions dictated that our approach was distinctive in several ways: first, it had to be comparative because we were dealing with five different countries from which our students came; secondly, transition from colonial rule and the resulting pressures for change linked with the lack of a developed literature virtually compelled us to adopt a historical approach – which was anyway congenial to Patrick and myself;34 thirdly, since we were dealing in large part with imported legal ideas, institutions and doctrines, their suitability to a new context was continuously put at issue – we had to be contextual. In our jointly taught course, Patrick McAuslan dealt with the Constitutions, I took on the court systems and a bit about customary law. We systematically combed the local law reports, the statute books, official reports and newspaper accounts of public debates to supplement the almost non-existent secondary literature.
Path dependency again: the Western academic year
From early on as a teacher I have had a bee in my bonnet about students’ use of time – the amount of time they were meant to spend studying during a calendar year. In Oxford there was a clear distinction drawn between holidays and vacations. A reasonable amount of the vacations was to be devoted to academic work and we were accountable for this through examinations and ‘collections’ at the start of term. In Khartoum I realised that the students’ living conditions at home did not allow for doing much academic work during vacations, but the length of terms were much the same as in provincial universities in the UK. This was embedded in the structure of the University. We tried to encourage reading and research into local custom with variable results. In Khartoum, faute de mieux, I had supported the move from a four-year to five-year degree in order to ease pressure on the curriculum and to reduce the failure rate (which it did substantially). Without a period of apprenticeship or bar exams, Sudanese law graduates were eligible to practice at an earlier age than lawyers in most Western countries. Why were students studying for less than thirty weeks a year?35 In Dar my argument was met with strong resistance. However, we did get some funding to enable students who had been accepted for the Law Faculty to have placements in law-related institutions and to do some preliminary reading during the six-month gap between leaving school and entering university.
In the end Dar students got a three-year LLB and a promise of one year of vocational training (on the Gower model). The students coped well with the academic side and there was a much lower failure rate than Khartoum. Provision was made for Kenyans and Ugandans to have a year’s vocational course in their home countries, but nothing materialised to start with in Dar. This was a bad mistake, somewhat mitigated by the fact that almost all Tanzanian law graduates were bonded to the public service, so they were not let loose on the public immediately. They got some in-service training, but not as much as was needed, until some years later when AB was asked to set up a post graduate training programme on his return to Tanzania.
The Kenya Council of Legal Education (KCLE)
From 1962–5 I was a member of the Kenya Council of Legal Education, the statutory body concerned with all matters to do with admission to the Kenya Bar. It was chaired by the Chief Justice. It included one other judge and the Attorney-General ex officio, four representatives of the Law Society of Kenya and one law teacher. It was an intensely political body dealing with quite technical matters, such as recognition of foreign Law degrees. There were three recurring issues: first, all of the Law Society representatives had qualified through the apprenticeship system (two, I think, in Ireland). They were deeply suspicious of academic law. Secondly, this was a statutory committee on which they did not have a majority and they strongly asserted the traditional autonomy of the legal profession. Thirdly, they were white Kenyans and were suspicious of all things Tanzanian, including UCD, which they viewed as a hotbed of socialism. They believed that Kenya should have its own law school, based on the apprenticeship system and that all Kenyans should qualify there. I also suspected a latent racism, which was generally well-concealed.
On all of these issues I was potentially in a minority of one (and half the age of all the other members, except the Attorney-General, Charles Njonjo). But I had one trump card: I knew quite a lot about legal education in the UK, USA, Dar es Salaam and other parts of Africa. The Law Society members were ignorant: they had not heard of the Denning Committee or Jim Gower or developments in Ghana. When I suggested that some credit should be given to a Harvard Law degree, one solicitor commented, inadvertently echoing a famous clanger/gaffe reported to Holmes by Harold Laski when he had suggested that legal education in England might learn from Harvard: ‘The crime rate in America is a sufficient comment on the Harvard Law School.’36 He had probably not heard of Holmes or Laski.
I soon learned how to out-manoeuvre them – not by flaunting my own learning, but by emphasising practicalities: how could apprenticeship be the only route to qualifying in Kenya, when there were already dozens of Kenyans studying law abroad, including in Dar and Moscow? There had to be provision for post-degree training for such people. In particular, Kenya needed a safety net to test for quality as it would be an impossible task to discriminate between English, Scottish, Irish, Russian, Australian, Indian and American Law degrees for the purposes of recognition. The Kenyan government had already pledged to recognise the Dar degree, but Dar graduates would need at least six months’ practical training on top of that. No one had thought through the conditions and costs of apprenticeship, nor the library and other needs of a local law school. Crucially, would this be funded by the profession or government? Ghana provided one possible model, Australia another. And so on. Over time I gained their respect, if not their agreement, and I was quite often supported by the ex officio members, especially Sir John Ainley, the Chief Justice, who had more power than just a casting vote. Eventually a Kenya School of Law was set up, with an apprenticeship scheme and provision of a full-time conversion course for those with overseas qualifications. However, the battles continued. When the First Principal of the Kenya School of Law was appointed, there was a move to get me to resign in his favour – as there was only one place on the Council for a teacher of law. I fought this vigorously, with the support of the Chief Justice, and won – seemingly on the ground that the Council was the Principal’s employer, so he should not be a voting member, but could be invited to attend meetings.
I thoroughly enjoyed my time on the Council. This rather parochial and arcane body provided me with a useful apprenticeship in the politics and diplomacy of legal education and training. Ever afterwards I adopted the role of professional legal educator who knew much more about the subject and developments elsewhere than any local practitioner could reasonably be expected to be aware of (see Chapter 16).
Disengaging
I suppose, in retrospect, that it was almost inevitable that I should leave Dar sooner than I expected. When one started one did not think much about even the medium-term future, but it seemed bound to be temporary. Despite my birth and background, I was still an expatriate, though one without an emotional home. I had expected to stay in Dar for five or six years, but chance intervened. Two main episodes led me to decide to look elsewhere and a third determined where I should go.
First, Karl Llewellyn died suddenly in February 1962. I heard about it shortly afterwards. From then on, my main scholarly attention was devoted to him and his ideas. It is as if I deserted Africa so far as my scholarship was concerned. In fact, this was largely a matter of chance. I had not intended to write about him, but a short obituary became an article which led to my being lured to put his papers in order in Chicago and this made writing a book about him almost unavoidable. I tell that story in the next chapter.
Secondly, I had to make a career choice. My stay in Oxford in 1960 had resulted in the decision not to try for tutorial Fellowships there. But where should I go next, doing what? In September 1964 I went on my own to stay on the slopes of Kilimanjaro to take stock and make plans for the future. The document marked ‘Kibo’ is uncomfortably revealing about my confusion and uncertainties, but it showed a clear commitment to continuing to be an academic. Yogi Berra said: ‘When you come to a fork in the road, take it.’ I combined or conflated both at Kibo in 1964 combining Africa and Jurisprudence: I contemplated ‘doing’ a major work on African Jurisprudence (‘after the Llewellyn book? (huh!)’),37 which I did not follow up, but the real issue was about my scholarly agenda. Soon afterwards I settled for Jurisprudence rather than for being an Africanist or more academic administration (there were emerging possible deanships in other parts of Africa) or other activist possibilities. Rather, I decided to concentrate on Llewellyn and complete this project as a first apprenticeship in scholarly writing.38 But where should I do it? The UK had never been ‘home’. A year at Yale seemed the best prospect. Dar had a fruitful link with Yale and this had been hinted as a possibility. So, I accepted an invitation to spend the academic year of 1965–6 in New Haven.
Then, thirdly, out of the blue I received an invitation to apply for the Chair of Jurisprudence at the Queen’s University Belfast, I was offered it and accepted. That was almost entirely serendipity. I tell that story in the chapter following my re-engagement with the United States.
But why did I give up on Africa so fast and so sharply? Penelope explains it as follows: in Sudan I was fully involved not only with teaching and the University but also in practical extra-curricular activities – editing the law reports, starting an archive, writing about Sudan law including the future of the Sudan legal system (which was already quite political). In Dar I involved myself in the University and Law School, but deliberately – in her view obsessively – kept a low profile because of my background and fear of being attacked as a colonialist.39 So, unlike Yash Ghai and Patrick McAuslan, I did not write on controversial public issues such as the one-party state and preventive detention. Her points are valid, but it is more complex than that. For one thing, while nearly all my published writings in both Sudan and Dar periods were about local legal issues, my reading and thinking were focused elsewhere – for instance my commonplace book for 1958–9 is mainly about Jurisprudence (and occasionally about teaching) and hardly at all about local law. More important, I did not have a long- or medium-term research plan. It was not part of the academic culture at that time. I was an auto-didact as a scholar (no research training), and most of my writing and publication were based on activist concerns. After I left in 1965 I continued with activist matters – external examining, postgraduate students from Africa, CLEA projects (archives, access, skills, legal awareness) (Chapter 16), and later consultancies and writing reports on legal education and law schools. I did not see these as scholarly activities.
I also saw my period of teaching in Africa as temporary. By now I knew that I was an expatriate – this defined me as being English; East Africa was not home. It never occurred to me to take out Tanzanian citizenship. Part of our mission was to train others to take over. In both Khartoum and Dar, we were unsettled for most of the time. I taught in Oxford during one long vacation from Sudan in order to decide whether to apply for tutorial Fellowships. In 1963–4 I spent first three then six months in Chicago in quest of Llewellyn. By 1964 I was thinking of leaving Dar. Until the opportunity at Queen’s turned up, the main options seemed to be a lectureship at Southampton or a Chair at Lagos. There were also pressing family reasons: by 1965 Karen was 6 and Peter was 4, so there were not many years left before educational concerns would kick in and we did not want to treat them as colonial children, packed off to boarding school. On scholarship I took a rather strict line: reacting against Americans who claimed instant expertise after a mere year or two, I felt that to be a serious ‘Africanist’ one had to live in Africa or one would be out of touch within a month. That was taking purism to an extreme, as if serious scholarly work depended largely on local gossip. Probably more important was the fact that in my first seven years as an academic I had not had time to do any sustained research.
Aftermath
I left Dar in March/April 1965 first to spend six months at Yale, mainly working on Llewellyn, and then to Belfast – where I stayed until 1 April 1972, when I moved on to Warwick, a new law school, similar in conception to Dar, and, indeed, a bit like a retirement home for ex-Dar es Salaamites – McAuslan and Picciotto were already there and several others (notably Yash Ghai and Abdul Paliwala) were at Warwick before or after a spell in Dar. After that my career was much like that of late twentieth-century academics and insofar as there is much to recount, it is mostly to be found in my published writings. However, I kept in touch with East Africa and the Sudan and expanded my experience of Africa to Botswana, Lesotho, Swaziland, Ghana and Nigeria mainly through external examining, consultancy, research on legal records and some public lectures. Our daughter Karen spent ‘a gap year’ in Kenya after leaving school and, having caught the Africa bug, spent fifteen years in Sudan, Rwanda and Kenya mainly as an aid worker. Although based in England, she is still involved. So we maintained fragmented contact.
