Bantu Beliefs and Magic / With particular reference to the Kikuyu and Kamba tribes of Kenya Colony; together with some reflections on East Africa after the war

by C. W. Hobley

The ceremony inside the hut was then over, and all the elders outside indicated its conclusion by taking a sip of beer and spitting a little on to their right breasts. The meat was then divided and cooked, and the company settled down to the feast of meat and beer.

Procedure in Pre-administration Times.—The procedure in former times seems not to have differed greatly from that followed nowadays in regard to the form of trial. It is said that the elders of mburi imwe, igiri and itatu used to sit separately, according to their rank, instead of together as they seem to do now, but it is doubtful if this custom was religiously observed.

The whole procedure was, of course, less organised than at present. There appear to have been no fixed councils or meeting places, which is easily explained by the fact that there were no defined locations. If two men had a case, they each called a few elders, who met to judge the case; others came and joined in, partly out of interest in the affair and partly because the elders, on the whole, delight in litigation. Certain cases became of general interest or may have affected [[216]]the whole country, and then the council would probably comprise most of the elders from far and wide.

It is certain that the elders could exercise considerable authority when they chose, as already described, but the object of the council was primarily to arbitrate in disputes and to point out the recognised custom to be followed. Where an offence affected the whole community, or when an accused was regarded as an habitual and dangerous offender, public indignation might be so strong that the affair would appear as a public concern, and the elders would then use their full authority. Ordinarily differences between two men, however, were considered to be their own affair, and if a man would not give what was due by custom, the claimant was expected to use force, although in such cases he was held liable for any damage done in using such means. The elders were, however, always able to enforce a judgment by cursing an accused found guilty if he refused to obey the judgment against him, but probably this was only done in very serious cases where public feeling ran high. Hence, probably, the many ancient feuds and the intense desire to increase the strength of the family. Had public authority been very strong and efficient this would not have been considered of such importance.

The presumption that the elders were regarded more in the light of arbitrators than judges is strongly supported by the fact that even to-day some elders appear to be adverse to deciding questions of fact. The mere appearance of a defendant before the council would seem to have implied his liability; even now it is difficult at times to induce a native to appear before either the council or a court if he maintains that the charge is entirely groundless or false.

Present-Day Procedure.—In each locality there is a gazetted council, or kiama, which meets at the council house situated near the headman’s village; a special flag is hoisted to tell the people that there is a meeting. Until now the kiama has met whenever [[217]]there has been a case to try, but this has proved a great evil, as a few elders are hastily collected and the large majority object to going to the councils too frequently. The councils have therefore mostly been composed of elders living in the vicinity of the chief’s village. It is now arranged that the meetings shall, if possible, be on fixed days, and not more than three or four times a month, and the improvement in consequence has been most marked.

The athamaki for each locality are now registered, and it has been agreed that at each meeting at least half, or in large localities, one quarter, of their number must be present. Hitherto it has been customary for the headman to summon the defendants through his askaris, or retainers, but now that each elder has been entrusted with the charge of a certain number of huts, it has been agreed that the parties shall in the first instance be summoned by their respective athamaki. (In S. Kikuyu each muthamaki will have, on an average, twenty-five huts under his charge.)

As a general rule the elders prefer to sit outside the council house; this is a good rule, as it ensures publicity to the proceedings, and publicity is also the object of native law. The athamaki sit in front and the other elders, the kamatimo, behind; only women and anake, or young unmarried men, are barred from sitting on the general council.

The fee paid to the elders varies greatly according to the means of the parties and the matter in dispute. It would be advisable to see a fixed fee instituted, but the elders should make this change of their own accord. When the parties appear, they come before the elders of athamaki in turn and state their cases; the plaintiff as a rule begins. Witnesses are sometimes called, but the parties repeatedly appear before the athamaki to contradict or correct the opponents’ statements. The elders generally keep count of the articles in dispute by breaking twigs; if, as is usual, part of the claim is [[218]]admitted, the twigs representing what is admitted are put aside.

Having heard all that the parties have to say the elders of athamaki then retire alone to discuss the question and settle it (this conference is called ndundu). They do not, however, all go, and any elders who are relatives of the parties are excluded; this is, of course, very equitable. The gazetted headmen never appear to go with these elders, but are sometimes called and consulted by them. The discussion between the elders is conducted so that it is not heard by anyone else; they are hardly ever known to break up without coming to an agreement. Having decided what it is to be, they break twigs representing the amount to be paid or any imprisonment imposed. One of them repeats what each twig represents, while the rest give their assent in chorus. Two of the senior members then stand up and invoke poverty, sickness, and calamity upon those who disobey their orders, and to this the rest again assent in chorus. After this, all beat their sticks on the ground, repeating much the same phrases, and finally they bring their staves together on the ground, so that the points meet, while they give a peculiar sort of whoop indicating that they have agreed. They then return to the general council, and one of the most senior among them, carrying the twigs, asks in varying terms if they have agreed, to which they assent in chorus. The elders then state what each twig represents, and finally throws his staff or club on the earth.