Devlin Commission

The Devlin Commission, officially the Nyasaland Commission of Inquiry, was a commission of inquiry set up in 1959 under the chairmanship of Mr. Justice Devlin, later Lord Devlin, after African opposition to the Federation of Rhodesia and Nyasaland, particularly its farming and rural conservation policies, and demands for progress towards majority rule promoted by the Nyasaland African Congress under its leader Dr Hastings Banda led to widespread disturbances in Nyasaland and some deaths. A State of Emergency was declared in March 1958; about 1,300 people, many of whom were members of the Nyasaland African Congress were detained without trial, over were 2,000 imprisoned for offences related to the emergency and the Congress itself was banned. During the State of Emergency, a total of 51 people were killed by troops or the police. Although the four members of the Commission were members of the The British Establishment, its findings were highly unfavourable to the Nyasaland Government.^[1]

The Devlin Report is the only example of a British judge examining whether the actions of a colonial administration in suppressing dissent were appropriate. Devlin's conclusions that excessive force was used and that Nyasaland was a "police state" caused political uproar. His report was largely rejected and the state of emergency lasted until June 1960. Although the Devlin Report was initially discredited, in the longer term it helped to convince the British Government that the Federation was not acceptable to its African majority. Dr Banda was released from detention 1960 and the Federation was dissolved in 1963.^[2]

Unrest in Nyasaland

Land issues

The violent uprising of John Chilembwe in 1915 was an expression of the frustration of educated Africans denied an effective political voice and of the grievances of ordinary Africans denied a share in the benefits of the colonial economy as well as of religious radicalism.^[3] After the Chilembwe rising, protests against colonial rule were muted and concentrated on economic and social improvement for Africans, with political representation as a distant aspiration. However, a 1930 declaration by the British government that white settlers north of the Zambezi could not form minority governments to dominate local Africans stimulated political awareness.^[4] In the 1940s and early 1950s, the most pressing problem was African access to land. Between 1892 and 1894, about 15% of the total land area of the Nyasaland, including some 867,000 acres, or over 350,000 hectares of the best land in the Shire Highlands the most densely populated part of the country, had been turned into European owned estates.^[5] Africans who were resident on these estates were required to pay rent, normally satisfied by their undertaking agricultural work for the owner under the system known as thangata, which later developed into a form of sharecropping in some areas.^[6]

For many years, neither the Nyasaland government nor British government had dealt with African land grievances, despite recognising that a problem existed: generally, the supposed needs of the estate owners were given priority. Thangata was regulated by the Natives on Private Estates Ordinance 1928: however, this allowed landowners to evict up to 10% of residents at five-yearly intervals. It did not provide a permanent solution, as it did not deal with the problem of estate land that was under-utilised but not available to African farmers, nor with the owners' ability to evict tenants. The legislation was overtly race-based, as used the category of "Native" (or African) to determine land rights.^[7][8] There were no large-scale evictions in 1933 and few in 1938, but in 1943 hundreds of families in the Blantyre District refused to leave their tenancies as there was nowhere for them to go to, and the colonial authorities declined to use force. The evictions due in 1948 were suspended because of a serious famine: they took place in 1950, but were resisted.^[9]

Tensions between estate owners and tenants remained high up to the early 1950s. In the overcrowded Cholo district, the British Central Africa Company treated tenants on its tea estates harshly. There were riots in 1945, and between 1950 and 1953 the company tried to evict about 1,250 tenants and increase the rents of the rest. Many refused to pay rent or taxes and occupied land on undeveloped parts of company estates. Serious riots broke out in Cholo in August 1953, leading to eleven dead and seventy-two injured.^[10] The Abrahams Commission (also known the 1946 Land Commission) was appointed by the Nyasaland government in 1946 to inquire into land issues in Nyasaland following riots and disturbances by tenants on European-owned estates in Blantyre districts in 1943 and 1945. Abrahams proposed that the Nyasaland government should purchase all unused or under-used freehold land on the estates, which would become Crown land allocated to African smallholders as Native Trust Land. Africans on the estates were to be offered the choice of remaining there as workers or tenants, or of moving to Crown land.^[11] The programme of land acquisition accelerated after 1951, and by 1957 the government had negotiated the purchase of most of the land it had targeted. By June 1954, 350,000 acres had been re-acquired, leaving only 3.7% of Nyasaland's land in estates. At independence in 1964, this had been reduced to less than 2% per cent.^[12]

Political issues

In the same period that the economic position of Nyasaland’s Africans was improving, their political aspirations received a set-back. Agitation by the Southern Rhodesia government led to a Royal Commission (the Bledisloe Commission) on future association between Southern Rhodesia, Northern Rhodesia and Nyasaland. Despite almost unanimous African opposition, its report in 1939 did not rule-out some form of future association, provided that Southern Rhodesia forms of racial discrimination were not applied north of the Zambezi.^[13][14] The danger of Southern Rhodesian rule made demands for African political rights more urgent, and in 1944 various local associations united into the Nyasaland African Congress. One of its first demands was to have African representation on the Legislative Council, which advised governors on local legislation.^[15] Before 1949, African interests were represented on this council by a single white missionary. In 1949, three Africans were nominated by the governor to the Legislative Council.^[16]

From 1946, the Nyasaland African Congress received financial and political support from Hastings Banda, then living in Britain. Despite this support, Congress lost momentum until it was reanimated by new Southern Rhodesian proposals for amalgamation in 1948. Post-war British governments of both main parties agreed to a federal solution for Central Africa, not the full amalgamation that the Southern Rhodesian government preferred. The Federation of Rhodesia and Nyasaland was pushed through in 1953 against very strong African opposition.^[17] The main African objections to the Federation were summed up in a joint memorandum prepared by Hastings Banda for Nyasaland and Harry Nkumbula for Northern Rhodesia in 1951. These were that political domination by the white minority of Southern Rhodesia would prevent greater African political participation and that control by Southern Rhodesian politicians would lead to an extension of racial discrimination and segregation.^[18] After Federation was imposed, the Nyasaland African Congress promoted a campaign of non-violent resistance. This may have been a factor in the Cholo riots in August 1953, although there were also local land issues. In early 1954, Congress abandoned its campaign and lost much of its support.^[19]

The Background to the Emergency

Congress radicalised

In 1955, the Colonial Office agreed to the suggestion of the governor, Geoffrey Colby, that African representation on Nyasaland's Legislative Council should be increased from three to five, and that the African members should no longer be appointed by the governor, but nominated by Provincial Councils. These councils were largely composed of chiefs but, as their members were receptive to popular wishes, this allowed the Provincial Councils to nominate Congress members to the Legislative Council. In 1956, Henry Chipembere and Kanyama Chiume, two young radical members of Congress, were nominated together with three moderates who broadly supported Congress aims. This success led to a rapid growth in Congress membership in 1956 and 1957.^[20]

Several of the younger members of the Nyasaland African Congress had little faith in the ability of its leader, T D T Banda, who they also accused of dishonesty, and wished to replace him with Dr Hastings Banda then living in the Gold Coast. Dr Banda announced he would only return if given the presidency of Congress: after this was agreed he returned to Nyasaland in July 1958 and T D T Banda was ousted.^[21] Dr Banda was absolutely opposed to Federation, but otherwise quite moderate and far less radical that the younger Congress members. In the nine months between his return and the declaration of a State of Emergency, he combined opposition to Federation with more popular causes, such as the African smallholders’ dislike of agricultural practices imposed on them to promote soil conservation and also the remnants of thangata. Banda’s strategy was to use these popular issues to mobilise Congress supporters into strikes, demonstrations, disobedience and protests that would disrupt the everyday operation of the colonial government.^[22]

Although the Nyasaland African Congress was at first based in Blantyre, many branches were established in the Northern Regionafter 1955. Schemes to prevent cutting down and burning trees and growing finger millet, and to restrict the numbers of cattle owned had begun in that region in 1938, but from 1947 they were increasingly enforced through fines. From 1951, unpaid work on schemes designed to prevent soil erosion was imposed by the Nyasaland government. Resistance to these measures created a climate of rural radicalism in the Congress branches in the Northern Region, which organised a campaign of sabotaging rural conservation schemes. A wider campaign of demonstrations, many leading to riots, started before a State of Emergency was declared. These intensified after 3 March, particularly in Karonga District, where armed Congress supporters evaded arrest by the small numbers of local police with the active support of the local population.^[23]

Increasing unrest

In January 1958, Banda presented Congress proposals for constitutional reform to the governor, Sir Robert Armitage. These were for an African majority in the Legislative Council and at least parity with non-Africans in the Executive Council. As this would inevitably lead to a demand for withdrawal from the Federation, the governor refused. This breakdown in constitutional talks led to demands within Congress for an escalation of anti-government protests and more violent action. Action by Congress supporters became more violent, statements by leading activists were increasingly inflammatory and Armitage decided against offering concessions, but prepared for mass arrests. On 21 February, some European troops of the Rhodesia Regiment were flown into Nyasaland and, in the days immediately following, police or troops opened fire on rioters in several places, leading to four deaths.^[19][24] In deciding to make widespread arrests covering almost the whole Congress organisation, Armitage was influenced by reports of a meeting of Congress leaders (held in Banda's absence) on 25 January 1959 which approved a policy of strikes, retaliation against police violence, sabotage and defiance of the government.

A report received by the police from an informer who was present also mentioned a discussion of the possible action to be taken if Banda were arrested, which included loose talk about attacking Europeans. This, and information from other informers, was the basis for the claim by the Head of Special Branch that the meeting had planned the indiscriminate killing of Europeans and Asians, and of those Africans opposed to Congress, the so-called "murder plot". Whatever inflammatory rhetoric may have been used by Congress leaders, there is no evidence that they planned to match their words with actions. The Nyasaland government took no immediate action against Banda or other Congress leaders, and continued to negotiate with them until late February. The governor also made no specific reference to the "murder plot" until after his declaration of a State of Emergency had failed to restore order quickly. However, Banda and his colleagues refused to condemn the violent actions of Congress members, which were increasingly directed at Africans who failed to support Congress.^[25]

The Emergency and the Devlin Commission

The Nyasaland emergency

After the breakdown of talks in late February, Armitage made preparations for a State of Emergency in Nyasaland, which were approved by the Colonial Office. On 26 February, the Governor of Southern Rhodesia declared a State of Emergency there, to free up troops and police to be sent to Nyasaland. In total, over 1,000 troops were sent to Nyasaland from Southern Rhodesia or Northern Rhodesia, including European troops of the Royal Rhodesia Regiment and African troops of the Rhodesia African Rifles and Northern Rhodesian Rifles.^[26] On 3 March 1959 Armitage, as governor of Nyasaland, declared a State of Emergency over the whole of the protectorate and arrested Dr. Hastings Banda, its president and other members of its executive committee, as well as over a hundred local party officials. The Nyasaland African Congress was banned the next day. Those arrested were detained without trial and the total number detained finally rose to over 1,300. Over 2,000 more were imprisoned for offences related to the emergency, including rioting and criminal damage. The stated aim of these measures was to allow the Nyasaland government to restore law and order after the increasing lawlessness following Dr Banda's return. Rather than calming the situation immediately, in the emergency that followed fifty-one Africans were killed and many more were wounded.^[27]

In the debate in the House of Commons on 3 March 1959, the day that the State of Emergency was declared, Alan Lennox-Boyd, the Colonial Secretary, stated that it was clear from information received that Congress had planned the widespread murder of Europeans, Asians and moderate Africans, “…in fact, a massacre was being planned”. This was the first public mention of a murder plot and, later in the same debate, the Minister of State at the Colonial Office, Julian Amery, reinforced what Lennox-Boyd had said with talk of a “…conspiracy of murder” and “a massacre… on a Kenyan scale”.^[28]

The arrests were made as part of "Operation Sunrise", so called because the State of Emergency was declared just after midnight on 3 March and arrest squads were sent out at 4.30 am. By 6 am most principal Congress leaders had been arrested and detained, by 9 pm that day 130 had been arrested but even by 5 March a quarter if those listed for arrest had not been detained. Some were released very quickly, but 72 prominent detainees, including Dr Banda, were flown to Southern Rhodesia later on 3 March. Others were detained in Nyasaland. In the course of Operation Sunrise itself, no-one being arrested was killed; five were injured, but none seriously. However in the immediate aftermath of the operation, 21 people were killed on 3 March.^[29]

Of these, 20 were killed at Nkhata Bay where those detained in the Northern Region were being held prior to being transferred by Lake Steamer to the south. A local Congress leader, who had not been arrested, encouraged a large crowd to gather at the dockside at Nkhata Bay, apparently to secure the release of the detainees. Troops who should arrived at in the town early on 3 March were delayed and, when they arrived, the District Commissioner felt the situation was out of control, and he ordered then to open fire. The other death on 3 March was in Blantyre, and there were six more deaths in the Northern Region and five in Machinga District up to 19 March. Most if these deaths occurred when soldiers of the Royal Rhodesia Regiment or Kings African Rifles were ordered to open fire on rioters. The remainder of the 51 officially recorded deaths were in military operations in the Northern Region.^[30][31]

The initial reaction of many Congress supporters was rioting, damage to government and European property and strikes but within a few days, following action by the police and troops, the Southern Region was calm but tense and the strikers returned to work. In the more remote areas, particularly of the Northern Region, the destruction of bridges and government buildings and rural resistance, including attacks on conservation schemes, continued for several months, particularly in the Misuku Hills, a remote area of rural Congress radicalism close to the border with Tanganyika Territory. This continued resistance was countered by what the governor described as a campaign of harassment by troops and police, and allegations of brutality made against them were later considered by the Devlin Commission. It rejected some claims, including those of rape and torture made against Federation troops during a military action in the Misuku Hills, but it upheld other complaints, including the burning of houses, the imposition of arbitrary fines and beatings, which it considered illegal. J McCracken, (2012).^[32]

The commission appointed

Within two days of the declaration of the state of emergency, the British cabinet under Harold Macmillan decided to set up a Commission of Inquiry into the disturbances. In addition, a wider Royal Commission on the future of the Federation of Rhodesia and Nyasaland was to be held in 1960 (this became the Monckton Commission). Macmillan did not choose its chairman, Devlin, and later criticised his appointment on the basis of his Irish ancestry and Catholic upbringing, and his supposed disappointment at not being made Lord Chief Justice. Macmillan not only broadly rejected the Devlin Report, which had taken several months to prepare, but engineered the production of the rival Armitage Report, which was prepared very quickly so it could be released on the same day as the Devlin Report.^[33]

The chairman of the Commission of Inquiry was Patrick Devlin, born in 1905 and made a High Court judge in 1948. He was promoted to the Court of Appeal in 1960, and in 1961 was made a Law Lord. He retired in 1964, at the age of only 58, but later denied this was because he was disappointed at not being offered the more senior posts of Lord Chief Justice or Master of the Rolls.^[34] Its other three members included a former colonial governor, the head of an Oxford College and a Scottish Lord Provost.^[35]

The delay in finalising the form of the Commission and its membership was caused by disputes within the government and parliament. The Secretary of State for the Colonies expressed doubts about an inquiry related to Nyasaland alone, and governor Armitage was opposed to any form of Commission, particularly one containing any member of parliament. Despite strong parliamentary pressure for its members’ involvement, the cabinet decided on 17 March 1959 that the inquiry would be carried out by a Commission of three and a presiding judge: the government announced its composition on 24 March. The commission was to inquire into and report on the recent disturbances in Nyasaland and the events leading up to them. They arrived in the protectorate on 11 April and spent five weeks there, a week in Southern Rhodesia and four days in London. They took evidence from 455 individual witnesses and 1,300 witnesses in groups. The Nyasaland government presented many documents to the Commission and later gave it oral evidence.^[36] Although Devlin had been a Conservative supporter and the other commissioners were Conservatives party members, the Commission went about its work in a way that concerned the Nyasaland government, which had hoped that its declaration of the State of Emergency and the subsequent actions of the police and troops would be vindicated.^[37]

Aftermath to the Devlin Report

Report findings

The Commission concentrated on three areas: the State of Emergency, the murder plot and African opposition to Federation. It found that the declaration of a State of Emergency was necessary to restore order and prevent a descent into anarchy, but it criticised instances of the illegal use of force by the police and troops, including burning houses, destroying property and beatings. It also found that the Nyasaland government suppression of criticism and support for Congress justified calling it being called a “police state”. Its strongest criticism was over the “murder plot”, which it said not exist, and the use made of it by both the Nyasaland and British governments in trying to justify the Emergency, which it condemned. It also declared that Banda had no knowledge of the inflammatory talk of some Congress activists about attacking Europeans. Finally, it noted the almost universal rejection of Federation by Nyasaland’s African people and suggested the British government should negotiate with African leaders on the country’s constitutional future.^[38][39]

A few days after Devlin arrived in Nyasaland, Armitage received advice from the Colonial Office on the action to be followed when a governor dissented from the findings of a Commission of Inquiry, and was told that he could dissent if he felt it was justified. At the end of May, Armitage thought the commission were satisfied that the State of Emergency was necessary, but that it did not accept that there was a massacre plan, and had concentrated on the use of firearms and the burning of houses by government forces, ignoring events leading up to such incidents. He suspected that the Commission's report would be highly critical.^[36]

Devlin challenged

The Colonial Office obtained an early draft of the Commission’s report and passed a copy to Armitage, which he used to prepare a document attacking its findings. Armitage then flew to London, where he joined a high level working party which drafted a despatch, often known as the Armitage Report, to counter the Devlin Report.^[40] In the Commons debate on the report, the government noted that the Commission had found the declaration of a State of Emergency justified, but it attacked their use of the expression “police state” and its rejection of talk about killings and beatings of Europeans as no more than rhetoric. The government also minimised Devlin's criticisms of handcuffing and gagging prisoners, burning houses and other illegal acts on ilt grounds if necessity. The Secretary of State for the Colonies said that the government had the right and a duty to reject the Commission's findings where it disagreed with them, and used this argument to justify accepting what little in its report was favourable and rejecting all that was unfavourable, instead of rejecting the whole report.^[41]

Devlin’s use of the phrase “a police state” caused deep offence, particularly as it was placed on the first page of his report. The governor of Nyasaland, Sir Robert Armitage, was incensed by the allegation, and the Secretary of State for the Colonies, Alan Lennox-Boyd, thought the claim was grossly unfair. Nyasaland did not have a particularly large police force for its population, but strong African resistance to the creation of the Federation of Rhodesia and Nyasaland led to a rapid increase in the police numbers from 860 to 1,100 in 1953, including a police mobile force of riot squads. By 1959, Nyasaland had over 2,000 police.^[42] It was not the size or expansion of the police force which made Devlin claim that Nyasaland was a police state. He used the expression because in Nyasaland under the State of Emergency it was unsafe to express approval of Congress and unwise to make significant criticisms of its government. Although the commissioners realised the problems in using the expression "police state", they intended to say that, in a State of Emergency, any country must inevitably become a police state. It is likely that Colonial Office ministers could have persuaded Devlin to remove this expression, but they felt it would be unwise to press the Commission on this.^[43]

Devlin vindicated

The Nyasaland government had imprisoned Banda, not realising that he was the only African politician they could negotiate with on a credible constitution for the protectorate. Devlin's conclusion that there was no murder plot and that Banda, unlike other Congress leaders, was not involved in promoting violence opened the way for the British government to deal with him. Had Devlin found there was a murder plot and that Banda had encouraged violence, this would have been very difficult. Despite Lennox-Boyd's rejection of the Devlin Report, once Iain Macleod replaced him at the Colonial Office late in 1959, Devlin was approached by Macleod for advice.^[44] The Royal Commission on the future of the Federation of Rhodesia and Nyasaland (the Monckton Commission) toured the Federation in February 1960. It had been given limited terms of reference and was boycotted by the opposition Labour Party and the African nationalists in Nyasaland and Northern Rhodesia. As the Commission's composition seemed weighted towards a continuation of the Federation, its report disappointed the British government. The Monckton Commission reported widespread and sincere opposition to the Federation in the two northern territories. It considered Federation could not survive without at least a major devolution of powers to Nyasaland and Northern Rhodesia, giving more voting rights to Africans and lessening racial discrimination. Most importantly, it also recommended that Britain should retain the right to allow the secession of either northern territory, recognising that African nationalists would not accept even a modified Federation.^[19]

The British government broadly accepted the Monckton report, signalling a withdrawal of support for the Federation and the acceptance of early majority rule for Nyasaland and Northern Rhodesia. Accordingly, and despite opposition from Armitage, from the governments of the Federation and Southern Rhodesia, and from some colleagues in the cabinet, Macleod released Banda from detention on 1 April 1960 and immediately began to negotiate with him on Nyasaland's constitutional future. The state of emergency was lifted on 16 June 1960.^[45] The Malawi Congress Party was formed in 1959 as the successor to the banned Nyasaland African Congress, with Banda as leader. Following an overwhelming Malawi Congress Party victory in August 1961 elections, preparations were made for independence, which was achieved on 6 July 1964.^[46]

References

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