Law and the Unequal Society: Discriminatory Legislation in Rhodesia under the Rhodesian Front from 1963 to 1969 Part 1

Plessy v. Ferguson (1896) 163 U.S. 537.

Mr. D. Lardner-Burke, Minister of Justice, in Rhodesia Parliamentary Debates (hereinafter referred to as Hansard), Vol. 75, col. 1044, 2 October 1969. He continued that 'African majority rule would result, firstly, in the removal of all European political influence, and thereafter in a battle for power between the two largest African tribes'.

Ibid., cols. 1343-4, 10 October 1969.

Hansard, Vol. 68, cols. 458-9, 2 August 1967.

Ibid., col. 463. Earlier pronouncements on the equivalence of apartheid and community development were ambiguous.

Mr. Lardner-Burke, Hansard, Vol. 75, col. 1352, 10 October 1969.

Hansard, col. 1047, 2 October 1969.

The 1965 'Constitution', s. 115 read with s. 116 (2).

Act Number 49 of 1966, ss. 2 and 4.

Ss. 108 and 110 of the 'Constitution', as amended. This change was subsequently exploited to the detriment of African tribesmen. See infra.

S. 104 (2).

S. 78A of the 1965 'Constitution'.

Hansard, Vol. 61, col. 1498; Vol. 66, col. 79; and Vol. 67, col. 1144, 19 May 1967.

Hansard, Vol. 52, col. 11, 12 February 1963. This was a euphemism to convey that Africans were not to be recruited. Compare the informal 'civilised labour' policy for state departments and provincial authorities in South Africa adopted since 1924. For an account, see A. Hepple , South Africa ( London, Pall Mall Press, 1967), pp. 211-2.

Rhodesia Herald (25 October 1968). Two of the first African law graduates from the University College could obtain articles only in Malawi.

Government List (Salisbury, Department of Information , 1967). According to African Advancement in Rhodesia (Salisbury, Ministry of Information, 1966), p. 17, of the 1,700 African civil servants, approximately 1,250 were on salaries of between £240 and £420 p.a. and the majority of the remainder were on salaries of between £440 and £1,280 p.a.

Hansard, Vol. 61, col. 1213, and Vol. 76, cols. 1521-4, 18 November 1969.

Hansard, Vol. 74, col. 93, 27 June 1969.

For a statement of the 'philosophy' of separate development, see the Minister of Internal Affairs in Hansard, Vol. 40, cols. 1879 et seq., 22 August 1963. See also Local Government and Community Development, C.S.R. 44-1965. The régime has extended community development to urban areas in some African townships. Since August 1968 Community Development Advisers have been posted to some townships. Hansard, Vol. 71, cols. 616-7, 5 June 1968.

For repudiation by the Secretary for Internal Affairs, see C.S.R. 16-1964, p. 6.

See the Robinson Commission, Report on the Organization and Functions of the Native Affairs Department and the District Courts Department, C.S.R. 22-1961.

See Local Government and Community Development.

Hansard, Vol. 73, col. 1344.

Council of Chiefs and Provincial Assemblies Act Number 58 of 1961, s. 8. The Act was amended by Act 58 of 1963, to provide for the removal of the President or Vice-president of the Council by a majority of members, as Chief Shumba, then President, had opposed independence for Rhodesia under a government elected by a minority of the population.

Minister of Law and Order in Hansard, Vol. 59, col. 572, 28 October 1964.

See Report of the Constitutional Commission 1968, paras. 621, 242, and 279. The Tiger and Fearless proposals also suggested that six Chiefs be elected to a senate: see Cmnd. 3159 and Cmnd. 3793.

Minister of Justice in Hansard, Vol. 75, col. 1048, 2 October 1969.

African Affairs (General) (Amendment) Regulations 1965 (Number 6), R.G.N. 479 of 1965. The increase was retrospective to 1 October 1964. Allowances range from £6 to £240 p.a. The Minister of Internal Affairs has repeatedly refused to disclose the amounts paid to various individuals.

Hansard, Vol. 59, col. 1103, 4 December 1964.

African Affairs Amendment Act Number 44 of 1966, s. 31.

Report of the Secretary for Internal Affairs, C.S.R. 39-1965, p. 53.

The African Law and Tribal Courts Act 1969.

Report of the Secretary for Internal Affairs, C.S.R. 27-1963, p. 7.

Report of the Secretary for Internal Affairs, C.S.R. 39-1965, pp. 9-10.

Act Number 9 of 1967. The Act is in part modelled on the South African Bantu Authorities Act Number 68 of 1951.

S. 8. The authorities were duty bound to inform appropriate officers (members of the Civil Service appointed by the Minister) of particulars of tribesmen using arable land or grazing stock: see s. 6.

S. 5.

S. 11. Compensation reasonable in the circumstances might be prescribed by the Minister: see s. 12 (1) (e).

S. 7. He might then establish a new authority. Even the Chiefs did not have the régime's complete confidence. Throughout 1966 and for part of 1967 (see R.G.N. Number 56 of 1967) the Emergency Powers (African Affairs) Regulations of 1967 empowered the Minister to suspend any Chief from office, to order him and his family to remove forthwith from any tribal area, and to appoint persons to act as Chief. These regulations were not re-enacted in later states of emergency.

G.N. 903 of 1967. It will be remembered that the Constitution Amendment Act 1966 had made it unnecessary to obtain the consent of the Board of Trustees of Tribal Trust Land to the declaration of the areas as irrigable and to the conditions of leases and circumstances of occupation. See supra.

For a history of this area, see W. Roder , The Sabi Valley Irrigation Projects (Chicago, 1965). The first scheme was opened at Mutema in 1928 and later schemes were opened in the 1930s at Mutambara, Nyanadzi, and other places.

Letter of advice from solicitor engaged by plot-holders, dated 25 November 1968.

Papers tabled by the Estimates Committee and Hansard, Vol. 72, cols. 1441-4. Compare Mr. Lardner-Burke's justification in 1969 of the major role in the Senate given the Chiefs: Hansard, Vol. 75, col. 1048, 2 October 1969. 'Their [the Chiefs'] traditional dignity will enhance the status of that Chamber and their wisdom and experience in tribal matters will benefit Parliament and the country as a whole.'

Hansard, Vol. 67, cols. 124-5.

Act Number 44 of 1966, s. 49.

They are denied virtually all participation. See the writer's Constitutional History and Law of Southern Rhodesia (Oxford , Clarendon Press, 1966), pp. 645-6, 650-1, and 667-70.

Hansard, Vol. 64, col. 1289, 3 August 1966.

Minister of Justice in Hansard, Vol. 75, col. 1044, 2 October 1969. For background to the 1969 Constitution, see the Report of the Constitutional Commission 1968 (Salisbury, Government Printer). Many of the Commission's proposals were embodied in the 1969 Constitution.

Hansard, Vol. 75, col. 1343, 2 October 1969.

Hansard, Vol. 74, col. 596, 23 August 1969.

Hansard, Vol. 75, col. 1341, 10 October 1969. In a revealing psychological moment Mr. Smith sarcastically interjected 'different coloured bottles'.

See Monthly Digest of Statistics (Salisbury, Central Statistical Office, December 1969), p. 33. The national income statistics show that African wages and salaries in 1968 were £89·6 millions and non-African salaries and wages were £133·9 millions. Statistics showing industrial origin of the Gross Domestic Product give African agriculture as producing £24·7 millions in 1968 and European agriculture £34·7 millions. Finally, total earnings of African employees in 1968 were £95 millions, whereas total non-African earnings were £135·4 millions (p. 13). Allocation of parliamentary seats on the basis of earnings by employees would have given Africans 27 seats in the 66-member House of Assembly. It is apparent that the régime deliberately chose direct taxation as the means of assessing contribution to the economy, as this would result not only in the minimum amount of African representation but also in the maximum time period before African representation could reach parity with that of Europeans.

South African Press Association transcript, 17 November 1969.

Hansard, Vol. 74, col. 380.

Hansard, Vol. 76, cols. 687-8, 30 January 1970.

Hansard, Vol. 75, col. 1468 read with Vol. 76, col. 902, 4 November 1969. The sizes of each electoral college are as follows: Northern 358, Central 235, Eastern 176, and Southern 234. The Minister of Internal Affairs admitted that a considerable number of the Chiefs are illiterate, unable to speak English, and incapable of making a mark on a ballot paper in the normal way: Hansard, Vol. 76, cols. 867-9, 4 November 1968. For this reason the Chiefs would be provided with separate ballot boxes identified either by a photograph of the candidate or by colour, with a token to insert therein. Because of the Chiefs' lack of command of English the Senate is permitted to conduct debates in 'the vernacular'.

See statement by Dr. M. Murphree in We Protest ( Salisbury, Unitas Press, 1969), p. 38. Of the 354 African elected councillors in all Rhodesia, 267 are in the Northern college, i.e. from the Mashona area. There are relatively fewer elected members in the Matabele colleges.

Hansard, Vol. 76, col. 887, 4 November 1969.

Electoral Act, s. 75.

The 1969 Constitution, s. 13 (2) (b).

Electoral Act, s. 142.

Hansard, Vol. 76, col. 251, 28 October 1969. Coloureds are to be defined 'in other legislation'.

Hansard, Vol. 75, col. 1342, 10 October 1969.

Minister of Justice in ibid., col. 1349. The régime will introduce such a measure when the 1969 Constitution comes into force.

Ibid., col. 1074.

Ibid., col. 1339.

Hansard, Vol. 76, col. 296, 28 October 1969. This would mean further powers of arrest and detention, and forced labour for unemployed Africans.

S. 45 of the Constitution. As is the case with many second chambers, the Senate cannot delay or force amendments to money Bills: see s. 46. This is far more significant in Rhodesia where fiscal measures are frequently used to authorize discriminatory State expenditure.

See footnote 56 for an assessment by the Minister of Internal Affairs of the Chiefs' intellectual ability.

The General Law Amendment Acts (Number 76 of 1962, the 'Sabotage' Act; Number 37 of 1963, the 'No-trial' Act; and Number 80 of 1964) and the Terrorism Act 1967. The latter was described in the Bulletin of the International Commission of Jurists (June 1968), p. 34, as 'legislation which must shock the conscience of every lawyer'.

Unlawful Organisations Amendment Act Number 9 of 1963.

Law and Order (Maintenance) Amendment Act Number 12 of 1963.

Preservation of Constitutional Government Act Number 14 of 1963.

Preventive Detention (Temporary Provisions) Amendment Act Number 1 of 1964. See Nkomo and Others v. Minister of Justice and Others 1965 (1) S.A. 498 (R.A.D.). The case was evaded by the Government by declaration of states of emergency during which preventive detention was possible.

Law and Order (Maintenance) Amendment Act Number 12 of 1964.

Miscellaneous Offences Act Number 18 of 1964. In European areas an African will not buy goods which have to be carried in public unless the seller gives a certificate to show to the police who can and do demand an explanation of the African's possession of the goods .

Departure from Southern Rhodesia (Control) Act Number 25 of 1964.

Criminal Procedure and Evidence Act Number 69 of 1964 .

Industrial Conciliation Amendment Act Number 75 of 1964. See the later Welfare Organizations (General) Regulations 1967 (R.G.N. 652 of 1967) which provide for the compulsory registration of all welfare organizations, full disclosure of their objects, and refusal of registration for, and control of, all fund-raising by any such organization. The aim is to control organizations which may become vehicles for African political activity in view of the historical association between African nationalism and African welfare organizations in Rhodesia.

Law and Order (Maintenance) Amendment Act Number 2 of 1964.

Law and Order (Maintenance) Amendment Act Number 16 of 1965 .

Local Government Amendment Act Number 67 of 1964. Ministerial and local authority powers to administer and provide for public order in such areas were clarified and extended by the Local Government Amendment Act Number 26 of 1967.

Hansard, Vol. 76, cols. 1575-6, 28 January 1970.

R.G.N. 823 of 1967, s. 24 (1).

Ibid., s. 24 (2).

S. 41 (1) (b).

S. 41 (1) (a).

Ss. 21 and 26.

S. 34.

R.G.N. 67 of 1967.

Constitutional Council, Report Number 48 (18 April 1967).

Emergency Powers (Review Tribunal) Regulations 1967, R.G.N. 229 of 1967. As a consequence of the Tribunal's reports the Minister varied several detention orders, but the great majority remained unaltered.

S. 48A (1) (a) and 3 (b). If the accused proved beyond reasonable doubt that, without using such arms, he had as soon as practicable abandoned these after entry into Rhodesia and, in any case, within one hour of entry and within one mile of the boundary, imprisonment of up to 30 years might be imposed in lieu of the death penalty: s. 48A (2) (d).

S. 48A (4) (a).

S. 48A (1) (b) and (4) (b).

S. 48A (8).

Constitutional Council, Report Number 50 (26 October 1967). Although the section saved any law 'to the extent that the law in question imposes upon any person ... the burden of proving particular facts', the Council considered that to require the accused 'to prove so sweeping and nebulous a negative as a lack of intent to endanger the maintenance of law and order' was not covered by the saving. The Council also thought the definitions of 'arms of war' and 'acts of terrorism or sabotage' were so wide as to class as potential terrorists in danger of the mandatory death sentence persons who might be minor offenders with no thoughts of endangering the security of Rhodesia.

S. 93 (6) (c) of 1965 'Constitution'.

Hansard, Vol. 72, col. 1578, 24 September 1968. Counter-productiveness, and not a change of heart, had occasioned the Bill.

Rhodesia Herald (18 December 1968).

Mr. Lardner-Burke in Hansard, Vol. 76, col. 1968, 6 February 1970.