Barozi Laws.
The ancient laws and customs of the Barozi are respected by the
Administration as long as there is nothing repugnant in them to the ideas
of justice as represented by the present standards of British Law. It is
endeavoured in this chapter to give a brief outline of the more important
of their laws with the penalties ensuing on a breach thereof, as in vogue
before the arrival of the present Administration.
Homicide was not punishable by any fixed penalty, and no difference was
made between murder and manslaughter. The penalty lay in the hands of
relatives of the deceased, who could do one of four things to the guilty
party, viz., to kill the guilty, to fine him, to take him as a slave or
to let the matter drop. The last mentioned was naturally only done when
politic to do so, the first penalty was generally resorted to when the
guilty party was very poor and possibly useless as a slave. Compensation
was nearly always settled by the assembled Kotla.
If a man was found slain near a village, but with no actual evidence as
to the slayer, the village was held responsible for the killing and
the Kotla placed a collective penalty on the village. A certain amount
of danger lay in discovering a slain person at any distance from human
habitations, as the finding often brought a charge of killing as its
reward.
In a case where there was actually no proof, witch-doctors were called
in, and some wretched person who had fallen foul of the witch-doctor
or even of some of the relatives of the deceased, generally got fined,
however innocent he might really be.
All cases of homicide are now adjudicated upon at proper Courts of
Justice, duly approved of by the High Commissioner of South Africa.
Theft was punished frequently, more severely than homicide, but in a
country where lock and bolts were unknown, this was probably inevitable.
The guilty party had all his possessions seized by the aggrieved party
and a clay pot was smashed, portions of it were made red hot with fire
and the thief was seized and his fist tightly closed round one of the
red hot pieces and firmly held there. This generally resulted in his
being maimed for life, as the burnt hand festered and rotted away in most
cases, while, even if it were looked after well enough to heal, the flesh
and sinews of the hand were so burnt as to prevent the hand ever resuming
its normal state and condition.
A kleptomaniac or an incorrigible thief was promptly helped into the
next world. A first offence, if the value of the stolen property was very
minute, was occasionally let off with a fine, but a second offence always
brought the punishment of burning of the right hand. Theft cases are now
tried by the Courts of Administration.
Adultery was punishable in various ways. The killing of the guilty couple
if found “in flagrante delicto” brought no penalty on the husband. If
the matter came to the ears of the injured husband later, the paramour
was fined one head of cattle. There was no fine or compensation from
the paramour if the guilty wife had gone uninvited to his hut, but the
paramour was nearly always accused of having called the woman to his hut
and could then be fined for the offence. The Barozi law has always been
distinctly unjust on this point, but it was doubtless necessitated by
the lack of morals among the Barozi. A woman could name any number of
paramours to her husband on his return from a long journey or a hunting
or fighting expedition, and these would one and all have to pay a fine
to the husband, although the woman might have named them out of spite
only. There is no such thing as rape amongst the Barozi. A man criminally
assaulting a female child under the age of puberty, might possibly have
to pay a fine to the girl’s father, but carnal knowledge of an unmarried
girl earned no penalty, and there is no known case of any woman or girl
needing coercion, in fact the power to refuse, on the woman’s part might
practically be said to be non-existent, while the laxity or rather utter
lack of morals certainly made the desire to refuse non-existent.
[Illustration: Start of a River Trip
Photo by E. S.]
[Illustration: Interior of Lewanika’s Dining-room
Photo by J. Walton, Esq.]
Cases of adultery are still settled by the Kotla but, as there is always
the possibility of an appeal from a decision to the nearest Native
Commissioner’s Court, the Kotla takes much more pains over settling these
cases than in former times.
These three “Crimes” with their various sub-headings formed the chief
cases settled in earlier days by the Kotla. Land disputes, which were
rare, were nearly all settled by the Chief and as the country has ever
been larger than the actual requirements of the people, disputes on land
and water rights were practically unknown.
The Natamoyo’s yard was always a city of refuge. Any law-breaker who
could get away from the avenging parties, and could reach the shelter of
the yard round the house or hut of the Natamoyo, was safe. “Natamoyo” in
Silui or Sirozi means the “man of life,” and thus his actual residence
became a city of refuge to any wrongdoer. A day’s sojourn at Natamoyo’s
yard was sufficient sanctuary and wiped away any obligation required by
law.
Blood relatives of the Chief had practically, a different set of laws for
their conduct. If one of the blood royal killed a man, he was fined very
lightly as a presupposed provocation was allowed in his case.
If he committed adultery, he was fined the same as an ordinary man in
amount, but as the royal progeny were the large stock holders of the
country, the value of the fine was really quite out of proportion when
compared with the same fine imposed on the owner of one or two head of
stock.
If a thief was of royal origin, he was fined but never maimed like a
commoner. The chief himself had no laws to submit to, but this freedom
was largely counterbalanced by the knowledge that if his actions became
too arbitrary or irregular, his life would promptly pay for them.
There is a curious custom which still holds good to-day, and which,
though really belonging to the chapter describing customs, is introduced
here as bearing on the laws pertaining to theft. This custom is “Kufunda”
(Sikololo) or “Kushwanga” (Silui). This was the right of a man to his
relatives’ possessions. A man could take cattle, or goods of a relative,
and the aggrieved party could not bring an action for theft against him.
Should any one overdo the “Kufunda,” the aggrieved party could warn his
relative that he was tired of losing all his possessions and that the
“Kufunda” must cease. After a public warning, any further case would be
treated as a mild theft and a fine imposed on the guilty party, but this
warning was seldom used, as a great deal of genuine generosity, or, it
might be said, a genuine community of property existed amongst relatives.
Nearly all other matters in the Barozi country are governed by custom.
First, as a great deal of English law is based on some old custom, so
do Barozi customs regulate decisions in any matters brought under the
jurisdiction of the various Kotlas.
THE LAW OF SUCCESSION.
This law is particularly selected to be described here as a peculiar and
solitary example of how the old Barozi law differs entirely from the
similar laws of all the tribes now absorbed under the sovereignty of
the Barozi. According to Barozi law, the heir is, if possible, a son;
but failing a son, a brother. A father may nominate a favourite son as
heir and he need not be the eldest son, but should he die intestate, the
Kotla will generally choose the elder son as heir unless he is an outlaw
or desperado, when a younger and better behaved man is elected. On the
other hand the laws of all other tribes hold as the heir the sister’s
son. This, as is quite easy to understand, was caused by the looseness
of morals of these smaller tribes, which meant that no man could be sure
that the child born by his wife was begotten by him himself. It was
argued that whoever was the father to the son of any man’s sister, the
son must at any rate have a certain amount of his mother’s and hence of
his maternal uncle’s blood, and was therefore the most suitable person
to appoint as heir. Comparing this with the Barozi law on the subject,
it will be seen that although under Barozi law the nephew might be an
heir if there were no sons of the deceased alive, yet the law or custom
regulating succession in the other subordinate tribes, made the nephew
heir in preference to all other possible heirs.
As a matter of fact, all estates (in which the ruling of the law of
succession might affect other members of the deceased’s family—to wit,
the estates of wealthy indunas and headmen) come under the jurisdiction
of the Kotla for settlement. The reason for this is that wealth is nearly
always represented by cattle and as in ancient European times, the Crown
was the only possessor of lands, so the chief is by repute the owner of
all cattle in the country, and on the death of any person of importance
who was in charge of a large herd of the chief’s cattle, the Kotla had
to step in to decide how many cattle should revert to the chief, how
many were earned by the deceased as a reward for herding the rest, and
how many should be left on the chief’s behalf in the care of the heir.
So, while the Kotla always hands over the bulk to one particular person,
the other members of the family are also given a small share, while the
estate often maintains the widow or widows—especially if pregnant—for
some time, until remarriage or return to their parents releases the
estate from such obligations.
[Illustration: A Mambalangwe Belle
Photo by Mrs. Cambell]