Asserting judicial sovereignty: the debate over the abolition of Privy Council jurisdiction in British Africa

Chapter 3
Asserting judicial sovereignty

The debate over the abolition of Privy Council jurisdiction in British Africa

Bonny Ibhawoh


In the early twentieth century, a debate raged within British colonial officialdom about whether to allow non-English judges from the colonies to sit on the highest court of appeal in the British Empire, the Judicial Committee of the Privy Council (JCPC). Although the JCPC had since 1886 occasionally included colonial judges, their presence on the board was always a vexed issue. In 1895, the Judicial Committee Amendment Act provided for the appointment to the Privy Council, and then to the Judicial Committee, of any judge of a superior court in the dominions and self-governing colonies. Further reforms introduced in 1908 and 1915 permitted representative judges from all British colonies to sit on the JCPC. This allowed for the appointment of colonial judges from India, Ceylon and Africa to the JCPC from 1909.1

In spite of these provisions, however, the three or five judges who sat to hear any one appeal were often judges from the United Kingdom.2 To many in both metropole and colony, this was anomalous. A bench composed exclusively of English judges, critics argued, was ill-equipped to effectively adjudicate appeals from different legal systems within an expanding empire.3 Although the most persistent calls for reforming the JCPC came from the colonies, there was also domestic pressure for a more representative JCPC or, in some cases, an alternate Imperial Court of Appeal.

Officials in Whitewall were, however, generally not persuaded as to the need for broader provisions for judicial representation from the colonies. They acknowledged a disconnect between the Privy Council and distant colonies but preferred instead the idea of a ‘peripatetic Privy Council’ that would go on circuit to the colonies. In the intervening years, colonial administrators, judges, lawyers and indigenous political leaders weighed in on one of the most contentious imperial legal debates of the twentieth century.

This chapter examines the polarizing debate over colonial representation and the inclusion of indigenous judges on the JCPC as it played out both in London and Britain’s African colonies. Focusing on specific moments in the debate over the abolition of Privy Council jurisdiction in South Africa and Kenya, it explores how concerns about judicial representation influenced the demands for the abolition of Privy Council appeals. It also examines the efforts made by British officials and politicians in the dominions and colonies to reform the JCPC in order to retain its relevance in the transition from Empire to Commonwealth from the 1930s to the 1960s. In this transition, most of the early debates centred on the JCPC’s jurisdiction in the old dominions, notably the Irish Free State, Canada and South Africa.

The extension of the debate over the JCPC’s jurisdiction to the rest of British Africa coincided with the post-war nationalist movement and the era of decolonization. After a century of judicial influence, the demise of the JCPC’s jurisdiction in Africa was precipitous. By the 1950s, the influence and jurisdiction of the JCPC and the regional colonial appeal courts had diminished significantly as a direct result of the anti-colonial movements. Between 1957 and 1966, several British colonies in Africa achieved independence and many of these new countries, either immediately or upon declaration of republican status, ended their appeals to the Privy Council. For many nationalist politicians in these countries, executive, legislative and judicial sovereignty were inextricably interlinked. Delinking from the JCPC was therefore seen as a key step in the assertion of independence and sovereignty.4

The process of judicial delinking would turn out to be a complex and convoluted one. Although anti-colonialism and decolonization marked the defining moment in the demise of the JCPC in Africa as elsewhere within the British Empire, these developments in themselves did not necessarily make the JCPC’s demise inevitable. In other parts of the Empire–Commonwealth, the influence and jurisdiction of the JCPC persisted for several decades after political independence was attained. Australia effectively abolished the right of appeal to the JCPC in 1986 and New Zealand in 2003. Sri Lanka abolished most appeals to the Privy Council in 1972, Malaysia in 1985 and Singapore in 1994. Most Caribbean countries continued appeals to the JCPC until 2001.5 In contrast, most British ex-colonies in Africa had by 1966 abolished all appeals to the Privy Council.6 Most of them had also left the two main regional courts of appeal – the West African Court of Appeal and the East African Court of Appeal.

Arguments for sovereignty and judicial independence aside, the demise of the JCPC in Africa also had much to do with longstanding dissatisfaction with the unrepresentative composition of the JCPC bench. The right of appeal to a ‘court’ located overseas, made up mostly of English judges who were sometimes considered out of tune with local law and values, was a sore point in the colonies even at the height of imperial power. This situation became even more untenable as imperial influence waned in the mid-twentieth century.

The question of colonial representation

Although the JCPC had occasionally included colonial judges since the 1880s, their presence on the board was always a vexed issue. The first dominion judge to sit on the JCPC was the English-trained South African judge, Lord de Villiers, who was Chief Justice for the Cape Colony, and later the first Chief Justice of the Union of South Africa.7 The provisions aimed at ensuring more colonial representation had little practical effect, either in terms of diversifying the JCPC bench or increasing the range of the Committee’s expertise. Most of the early Indian assessors appointed to the Committee were serving and retired English officials and judges who had worked in India. However, from 1909, South Asian judges began to take on a major presence in the upper echelons of the imperial legal system with the appointment of Syed Ameer Ali as the first South Asian judge on the JCPC.8 Indigenous judges, such as Syed Ameer Ali and Dinshaw Mulla, who was appointed in 1930, played a crucial role in bringing indigenous perspectives to the jurisprudence of the JCPC, particularly in terms of their expertise and interpretations of Hindu and Islamic law.9 The inclusion of African judges (outside of South Africa) would wait until 1962, when the Nigerian judge Adetokunbo Ademola was appointed to the Privy Council. There was also the occasional judge from Canada, Australia or South Africa who sat on the Board by virtue of his appointment to the Privy Council. Sometimes, judicial assessors were also drawn from the ranks of retired colonial judges who provided advice on local laws and customs. Yet many, in both the metropole and the colony, considered this anomalous.

Questions over colonial representations in the JCPC echoed longstanding debates over judicial unity and cohesiveness within the British Empire. Some officials in England and the colonies expressed concern about the ability of the JCPC to cope with the variety of cases from legal systems across the empire without adequate representation from the colonies and dominions. It was frequently pointed out, for example, that few judges on the JCPC had any training in Roman–Dutch law which was applicable in Ceylon and the Cape Colony. This raised further concerns about judicial incompetence and miscarriages of justice. The main complaint was that, being composed almost entirely of United Kingdom judges, the JCPC could not match local practitioners in their knowledge of local law and conditions.

The first cracks in the imperial judicial edifice appeared in the old dominions. The debate over the right of JCPC to appeal informed discussions of dominion status in the 1920s and early 1930s following the Statute of Westminster, which established legislative equality with the United Kingdom for the self-governing dominions of the British Empire. Most of the early discussion focused on strengthening representation from the old dominions of Canada, Australia, New Zealand, South Africa and, to a lesser extent, India. During this period, the JCPC arguably faced a crisis of relevance and legitimacy arising mainly from the demands in Canada and the Irish Free State for the abolition of the rights to Privy Council appeal. The political circumstances leading to the abolition of appeals in both countries foreshadowed the end of appeals in Africa and elsewhere in the Empire–Commonwealth.

By the 1920s, the question of colonial appeals to the JCPC had become a key issue in British imperial politics. At the Imperial Conference of 1926, much attention was devoted to the problem of the relation between the emerging independence of the dominions and their continuing constitutional status as colonial dependencies. The conference ended with a declaration that ‘it was no part of the policy of His Majesty’s government that questions affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of the Empire primarily affected’.10 In 1931, this principle was enacted into law in the Statute of Westminster, which effectively made it possible for dominions to abolish appeals to the JCPC.11 Thereafter, discussions about the abolition of Privy Council appeals in the colonies became more prominent during negotiations for the dismantling of the British Empire. Associated with concerns about the lack of representation on the JCPC were longstanding complaints about the disconnect between the English judges who adjudicated colonial appeals in the comfort of Westminster, and the varied realities of life in the outposts of the Empire. A frequent complaint was that appeals to the JCPC involved inordinate expenses and delay due to distance, and that the JCPC was a rich man’s court where poorer litigants could not afford to go.

Beyond the question of distance and representation, however, was also the general perception that the JCPC, regardless of the quality of judges that staffed its bench, was ultimately a second-class court. It was, after all, an appellate court constituted exclusively to adjudicate colonial cases – an Imperial Court situated in the imperial centre but with limited jurisdiction over metropolitan cases. The reluctance of British officials to contemplate having United Kingdom appeals heard by anyone else other than the House of Lords was taken as evidence that, with the Privy Council, the dominions and colonies were being subjected to an inferior court to which Britain did not subject her own citizens. Critics made reference to the landmark case of London Joint Stock Bank Ltd v MacMillan, in which it was held that the decisions of the JCPC were not theoretically binding in English courts, even if they might be deemed influential.12

Dominion politicians also drew attention to key procedural differences between the judicial work of the House of Lords and the Privy Council. The judgments of the House of Lords took immediate effect, while JCPC ‘judgments’ were, in fact, merely recommendations, upon which the Crown made the final decision in an Order in Council. This gave rise to doubts about the character of the Judicial Committee as a true court. The view that the JCPC was an inferior adjudicatory body designed for the colonies persisted in spite of assurances by officials in Whitehall that the Judicial Committee was indeed a court, and that the King in Council had no constitutional power to interfere in any way with its judgments.13

The image of the JCPC as a court for the colonial underclass was not easily shaken. If the JCPC was good enough for colonial subjects, why was it not also considered good enough for British citizens? This became a key argument against the retention of the right to JCPC appeals in the colonies. Perhaps more than any other critiques of the JCPC, the view that the JCPC dispensed ‘selective and inferior justice’ most undermined the public’s perception of its relevance and legitimacy in Africa.14 At a time when the assertion of national sovereignty and claims about the ‘equality of men and nations’ were key messages of nationalist anti-colonial politicians, the idea of subjecting citizens of newly independent nations to ‘selective and inferior justice’ struck a chord in the colonies, and was strongly rejected.

The appointment of more colonial judges to the JCPC between 1930 and 1950 did not dampen the demands for indigenous representation on the JCPC bench. Such demands were occasioned by the significant changes in the legal and judicial landscape of British Africa from the 1930s onwards. The small but active group of Western-trained African lawyers who began to play an important role in the colonial legal system demanded greater inclusion in the colonial judiciary. The fact that these indigenous lawyers were not seriously considered candidates for the JCPC bench until the 1960s, had more to do with the racial restriction imposed on non-white judges than anything else. Their eventual engagement in the discussions about reforming the JCPC would be foreshadowed by nationalist demands for the abolition of JCPC appeals in South Africa.

In South Africa, the first legal initiative to abolish appeals to the Privy Council began with the enactment of the South Africa Act of 1909 that abolished the right of appeal from provincial courts, even as it allowed for appeal from the Supreme Court by special leave of the Privy Council.15 The restriction on JCPC appeals was clarified in 1920, when the Privy Council itself announced in Whittaker v. Durban Corporation (an application for leave on facts relating to power to change municipal boundaries), that, in denying leave in this case, henceforth it would refuse leave except on very important matters, such as serious constitutional issues.16 This decision engendered debate in South Africa where it was welcomed by those advocating the abolition of Privy Council appeals. Opposition to the appeals reflected the view that English judges sitting on the Committee were ill-equipped to adjudicate cases based on the Roman-Dutch traditions of the country. Appeals from South Africa to the JCPC, which were never significant in number previously, reduced to almost zero between 1920 and 1933.17

One such case, Pearl Assurance Co. Ltd. v Government of the Union of South Africa, came before the JCPC in 1934. It provided the main impetus for the abolition of appeal in South Africa.18 The case concerned questions regarding the amount of damages recoverable on a breach of contract under Roman–Dutch law and the onus of proof as to the amount of damage suffered. Before this case, it had been the established practice of the JCPC to grant a leave of appeal for South African cases only in far-reaching questions of law or on matters of dominant public importance. In Pearl Assurance, however, the JCPC departed from this principle by granting leave on a question relating to the domestic law of contract. This raised the prospect of almost unrestricted appeals to the JCPC. It also caused concern among local politicians over what was considered the unilateral expansion of JCPC jurisdiction in the country, which was then expressed in the South African Parliament in 1935, when a motion was raised for the abolition of appeals to the Privy Council.19

Apart from criticism of the extension of the JCPC’s jurisdiction to matters relating to private law, there was also opposition to the decision itself, which partially overruled the judgment of the Supreme Court of South Africa. Some critics of the JCPC decision suggested that the judges of the Committee were charged with an impossible task of applying a system of law, with which they were only slightly acquainted.20 This case brought to a head the longstanding disquiet among nationalist politicians over JCPC appeals, and gave strength to the movement for abolition. A related argument for abolition was the feeling that the existence of the right of appeal to the Privy Council was inconsistent with the sovereign independent status of the Union of South Africa. The Nationalist Party in South Africa, which was at the forefront of the calls to abolish the right of appeal to the Privy Council, frequently pointed to the inequities inherent in the appeals process that, apart from being ‘an undeserved slur’ on South African judges, ‘placed a powerful weapon in the hands of rich litigants’.21

The ‘abolitionists’, as the advocates for ending the JCPC appeals came to be known in the local press, pointed to the unsatisfactory nature of decisions by a Privy Council composed of men unlearned in the Roman–Dutch law.22

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