THE FOUNDATIONS OF NATIVE SOCIETY—THE TENURE OF LAND
Having indicated some of the quagmires into which direct rule would
lead us, one may now pass to an examination of the foundations upon
which native law and custom repose in the organized society of the
north, as revealed by systematic inquiry extending over the past five
years. Essentially the same groundwork is found in the more rudimentary
pagan communities which have remained without the area of Mohammedan
organization. Incidentally, it may be well to mark that Northern Nigeria
has not evolved powerful pagan organisms comparable with those of Yoruba
and Benin in the south. The basis of the social system is the village
community. A number of village communities form the tribal community.
The partly hereditary, partly elective rule of the tribal community
constitutes, with the Executive, the Government of the entire community.
The ruler himself is the “Governor,” against whose actions the people
can appeal to native law and custom. For the welfare of that community
the ruler is guardian. Land is the common heritage of the community. The
ruler is trustee for the land. Upon him devolves the granting of rights
of occupancy. The structural law of tenure is the right of occupier and
user, not of owner. Private ownership of land is unknown. The cultivator
is, in reality, a licensee. Alienation of land is unknown. The unit
of taxation is the village community. Each individual is supposedly
assessed according to his earning capacity. If he is an agriculturist
he furnishes a proportion of his crop, which, in effect, is a rent paid
to the community for the use of land. If an artisan, he pays a tax upon
his trade. If a herdsman, upon his cattle. The community as a whole
is subject to specific imposts which assist in maintaining the civil
list of the ruler. The character of the taxes and imposts follows the
requirements of the Koranic law modified, when considered expedient, by
pre-Koranic customary law. Justice is administered by judges conversant
with the sacred books, appointed by the ruler and exercised on the
principles of Koranic law. If a balance could be struck, it would
probably be found that a system of this kind ensures a greater amount of
human happiness than many of the forms of government even now existing in
Europe. Indeed, the closer one’s knowledge of African life and the more
insight one obtains into the immense sea of human misery heaving beneath
the crust of Western civilization, the more one is led to marvel at the
shallow commonplaces which picture the African wallowing in degraded
barbarism. Like all institutions, the African system lends itself to
abuse. Those abuses the British Administration has set itself to correct,
while maintaining the system itself. Upon the Colonial Office continuing
to support that policy, and upon the men who are applying it on the spot
being enabled to go on with their work free from interference, depends
the future happiness and prosperity of the Nigerian peoples, which,
in effect, is at once the Imperial interest and the justification of
Imperial rule.
The British, having replaced the Fulani, are in native law and custom
the conquering tribe. The urgency of devoting as much time as it was
possible to spare from the pressing problems of the hour demanding daily
solution, to an investigation of the exact conditions prevailing in
each province was, therefore, imperative. In so extensive a territory,
differing local circumstances affecting soil, population, occupation,
distribution of power, and so on, had obviously created different methods
or rather heads of taxation and variation in the formulæ of Government,
assessment and levying of revenue, etc. One question above all others
had to be elucidated, that of the ownership of land—basis of the whole
social edifice. Sir Frederick Lugard initiated these inquiries. They
were vigorously prosecuted by Sir Percy Girouard and the Residents, and
when it became apparent beyond all possibility of doubt that the land,
whether actually occupied or not, was national; that freehold property
was foreign to all native ideas; and that, under native law and custom,
the new rulers of the country were recognized as holders of the land in
trust for the people and, thereby, the grantors of occupants’ rights,
Sir Percy Girouard pressed for these cardinal principles being given
force of law. Legislation which should embody them was, moreover, of
additional moment for two reasons. First, because the opening up of the
country was bound to give rise to the danger of alienation of occupancy
rights creeping in and being incorporated into native custom, out of
which would automatically evolve a customary sanction for the mortgaging
of land, the creation of a class of landlords, a wide field for the
European speculator in land, and a general break-up of the native system.
Secondly, because the approach of the railways, the development of roads,
the increasing demand for foodstuffs and the all-round intensifying
economic pressure were bound, once more automatically, to originate,
independently of the industry of the cultivator, an incremental value in
the land. Before that state of affairs was brought home to the native
and had, perhaps, been made under native law and custom, the subject of
private property, which would have meant the creation of vested interests
difficult to displace, it was the obvious duty of a Government trustee
for the community to step in and secure these expanding values for the
future benefit of that community. But things move slowly in West Africa,
and legislation of the kind referred to was novel: unique, indeed. West
Africa’s problems had never been thought out ahead before. Just as
matters were ripening, Sir Percy Girouard was suddenly transferred to
East Africa. But the Colonial Office was sympathetic, and there were
men in Nigeria who, comprehending well the perils of leaving the land
question unregulated, were determined to do their utmost to push the
matter through.
On January 1st of this year the most far-seeing measure of constructive
statesmanship West Africa has ever known was put upon the statute-book.
“The Land and Native Rights Proclamation” consecrates the three main
principles of native law and custom. First, that the whole of the land
whether occupied or unoccupied is “native land.” Secondly, that the land
is under the control and subject to the disposition of the Governor, to
be “held and administered by him for the use, need and common benefit
of the natives of Northern Nigeria.” Thirdly, that the Governor’s power
shall be exercised in accordance with “native laws and customs.” For the
rest, and without going into detail, the measure can be described as
expressing the native system, and the natural developments of the native
system, in English. It is not, in Nigeria, an innovating measure, but
a conservative measure; not an experiment, but a preservation of the
_status quo_. It is not a measure of land nationalization, because land
nationalization means State control of the land and all that is done upon
it. What this measure does is to provide for the communalizing of the
communal value of the land, leaving the occupier full control over the
use of land and full benefit for his private enterprise upon it, with
payment of rent to the community to which the land belongs, instead of to
a landlord. The individual’s right to all that is due to individual work
and expenditure, but not to the communal value, is secured. No freehold
can creep in and no monopoly profit can be made out of the land. The
holding up of land for speculative purposes is, in effect, penalized,
while the man who is industrious is not made to pay more as the outcome
of his enterprise. At the same time the basis is laid for a land revenue
which, with the years, will be the chief source of income of the
Government—the healthiest form of income, perhaps, for any Government.
For the first time in the history of West Africa, the art of governing
the native on native lines has become consecrated in British legislation
and the pernicious tradition of applying the law of England to African
land questions has been set aside. It is impossible to exaggerate the
potentialities for good of such a departure from crude, ignorant and
unscientific precedent. It will be the duty of the Colonial Office, to
whom everlasting credit is due for having sanctioned this proclamation,
to watch strictly that the principles laid down therein are not departed
from in practice, and to apply them, with the modifications of method
which differing and pre-existing conditions render advisable, to Southern
Nigeria also. That attempts to undermine the provisions and the spirit of
the Northern Nigerian law will arise, may be unhesitatingly assumed.