Chapter X: 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.