PUBLIC RECORD
OFFICE
Reference :-
mmimmim C.O.885
14 PUBLIC RECORD OFFICE, LONDON
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On the 21st December, 1896, an Order (Document E), headed "East Africa Pro- tectorate," was issued by Her Majesty's Commissioner for the East Africa and for the Zanzibar Protectorates providing for the registration of all "documents relating to leases, mortgages, sales, and other transfers of immovable property except wills;' the previous Order of the 1st June, 1893, therein referred to, is not in the possession of Her Majesty's Government.
It was proposed in 1896 to make certain land and mining Regulations for East Africa and Uganda. The proposal was referred to the Colonial Office, and that Department pointed out in the letter of the 4th September, 1896 (Document F), that the land in a British Protectorate is, as regards the British Government, foreign soil, and is not vested in the Crown as is the case in territory which is annexed to the British dontinions. The letter added that it was, therefore, advisable to avoid mak- ing grants in which the British authorities appeared to alienate land which was not, in fact, vested in them or in the British Crown. The system recommended for adop- tion was that of certificates permitting a particular person to occupy a particular piece of land, and undertaking to secure him in his occupation subject to such con- ditions as might be thought advisable. The granting of such a certificate was an administrative act, and not a transfer of title.
This system was adopted in the Land Regulations for Fast Africa, the 7th January, 1897, and for Uganda (Documents G and H respectively).
The construction of the Uganda Railway throughout the East Africa Protec- torate has necessitated important steps with regard to the appropriation of land required in connection with the line.
In the beginning of 1897, it was thought advisable to secure to the Crown a belt of land along the line, as such land might become valuable and serve to recoup a part, at least, of the money spent in building the railway.
The question how this could best be done was referred to Mr. Albert Gray. The constitutional and legal difficulties of the matters are discussed in the latter part of his letter of the 7th April, 1897 (Document I).
The last paragraph but two of the letter is apparently in error in stating that the Indian Land Acquisition Act of 1894 had then been applied to the East Africa Protectorate-it had then been applied to the Sultan's dominions only.
The matter of the railway belt was eventually dealt with by a Notification, dated the 9th May, 1897 (Document J), and issued by the Commissioner in the Pro- tectorate, announcing that in pursuance of the powers vested in him he had appro- priated for public purposes, subject to proved rights of ownership, all lands on the mainland beyond Mombasa situated within one mile on either side of the railway wherever finally constructed. There is no indication of the particular authority on which the Notification rests.
On the 12th June, 1897, the Commissioner issued a Notice (Document K), pro- viding for the compulsory purchase of land and houses belonging to persons subject to the Native Courts, i.e., land and houses belonging to natives; the Notice contains no indication of the particular authority on which it was issued. "The Africa Order in Council, 1889" (Document L), under which the Queen's extra-territorial jurisdic- tion in the East Africa Protectorate was then exercised, did not give the Commis- sioner any powers over natives of the Protectorate or over their property; both the natives and their property were assumed to be under the jurisdiction of their several
overeign Chiefs.
On the 8th July, 1897, the Commissioner issued a Notification (Document M), providing that no document purporting to transfer any interest in land from a native of the East Africa Protectorate (outside the Sultanates of Zanzibar and Witu) to a British subject or to a foreigner should be valid without the written approval of the local Collector.
On the 7th July, 1897, a new Order in Council was passed for East Africa (Document N). But it did not come into force in Africa till the 12th August. 1897.
Article 11 () of this Order applied to the Protectorate "The Indian Land Acquisition Act, 1894" (Document O).
Mr. Grav points out in the 7th paragraph of his letter of the 21st June last (Document P) that under “The East Africa (Acquisition of Lands) Order in Council, 1898 (Document Q). the Commissioner probably has power to grant a title amounting to a freehold in the case of land taken under " The Indian Land Acquisi- tion Act, 1894."
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The Commissioner's despatch, No. 216, of the 5th September, 1897 (Docu- ment R), submitted Regulations for preventing the creation of fictitious titles to land in the Sultan's dominions. Mr. Albert Gray, to whom the despatch was referred, remodelled the Regulations, and proposed in his letter of the 17th November, 1898 (Document S), that they should be extended beyond the Sultan's mainland dominions to the whole of the East Africa Protectorate.
Mr. Gray's letter was sent to the Commissioner, who, in his despatch, No. 14, of the 7th January last (Document T), suggested certain minor amendments in the draft of the Regulations, mentioned above, for preventing the creation of fictitious titles to land, and expressed concurrence in the proposal to extend them to the whole Protectorate. He deduced from Mr. Gray's suggestion that Her Majesty's Govern- ment now held that waste land in the Protectorate could be treated as in a Colony, and be considered capable of being granted in freehold by the Crown. The question involved in this correspondence was again referred to Mr. Albert Gray with the others relating to land, and his observations on will be found in his letter of the 21st June last (Document P), to which reference will be made below.
On the 29th December, 1897, amended Land Regulations were issued in East Africa (Document U). These Regulations differed in detail, but not in principle, from those first issued (Document G).
The Land Regulations of Uganda were issued, pari passu, with those for East Africa.
It may be observed that Uganda is under "The Africa Order in Council, 1889 (Document L).
The enclosed despatch, No. 19, of the 22nd February, 1898, from the Acting Commissioner in Uganda, contains observations to the effect that the Land Regula- tions do not entirely meet the requirements of the Protectorate, and proposes various amendments; it also contains information on the ideas of land tenure held by the native administration of Uganda. This despatch was referred to the Colonial Office; the reply of that Department is dated the 26th January, 1899 (Document V). The Land Regulations promulgated for East Africa in December, 1897, are also insufficient in present circumstances. The Commissioner's despatch, No. 313, of the 4th October, 1898 (Document W), points out some of the difficulties which the Regulations do not meet in practice. This despatch also was referred to the Colonial Office, and the reply to the reference is dated the 7th April, 1899 (Docu- ment AA).
In the East Africa Protectorate an important change has recently been effected by an Order in Council, dated the 7th ultimo (Document X), Article 9 of which provides that Queen's Regulations made, or to be made, under Articles 45 and 46 of The East Africa Order in Council, 1897," shall, unless a contrary intention appears, apply to natives.
Mr. Albert Gray's letter of the 21st June last (Document P) relates also to the form of transfer which should be used in respect to such land in the Sultan's mainland dominions as the Crown can dispose of. The matter was raised by Mr. Cave's despatch, No. 70, of the 22nd February last (Document Y); properly it stands outside the scope of the present reference, because it relates to land in a region possessing a code of land laws. It is referred to you now, as it has been included in the questions dealt with in Mr. Albert Gray's letter of the 21st June last.
The documents hitherto noticed form the body of legislative measures taken in the Protectorate with regard to land. But it is in many cases doubtful whether the provisions above noticed are properly applicable to natives (or to their property), as defined by the Orders in Council, under which Her Majesty's officers have successively acted in the Protectorate, namely, "The Africa Order in Council, 1889," and "The East Africa Order in Council, 1897." those Orders applying only to the persons and property of British subjects and to foreigners, as defined in the Order.
The Order of 1897 provides, indeed, by Article 52, for the administration of justice in Native Courts, but in view of the provision of Article 5, namely, that the Order applies to natives (as defined in the Order) only in the cases and according to the conditions specified in the Order, and not otherwise, it is at least doubtful whether the Order can be said to give power to legislate for natives or to administer their affairs.
I also have the honour to call your attention to an important change that has of recent years come over the juridical conception of a Protectorate.
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