II: Empire and humanitarian action in Zanzibar: A troublesome relationship

A British Vice-Admiralty Court in Zanzibar: Sovereignty and imperial interference

The establishment of a British Vice-Admiralty Court in Zanzibar led to unexpected imperial interference into the sovereignty of the Zanzibar Sultanate and consequently opened a new chapter in the history of anti-slavery and imperialism on the island. Men on the spot like Consuls and Navy Officers played a key role in shaping this new era where humanitarianism and imperialism occasionally worked hand in hand along the coast of East Africa. This chapter will first outline the reasons which led to the creation of a Vice-Admiralty Court in Zanzibar in 1869. It will be shown that no hidden plan of colonisation laid behind the creation of this court even if its setting represented a substantial loss of sovereignty for the Sultanate and fostered British imperial influence over its territory. Then, we should see how Kirk, the British consul, and Seyyid Majid, the Sultan, both took advantage of the situation in consolidating or expanding their sovereign powers. If abolitionism did not necessarily concealed cunning imperialistic moves, this chapter however demonstrates that anti-slavery could occasionally be used by men on the spot to forward British colonial domination.

A Vice-Admiralty Court in Zanzibar: interference in the name of humanity?

In 1868, Seyyid Majid, Sultan of Zanzibar, wrote a letter to Henry Adrian Churchill, then British Consul on the island, to complain about the seizure and destruction of dhows ‘which he seemed to consider arbitrary’.1 Churchill reported to the Bombay government, whose interests he represented along with those of the Foreign Office, that he had received the Sultan’s letter after ‘Her Majesty’s ship Star ... destroyed thirty dhows [possibly within a year], amongst which was a bungalow [a baghala: one the world’s largest wooden high seas sailing vessels between 400 to 600 tons] belonging to one of Seyyid Majid sisters’.2 Thirty dhows at the time represented less than 10 per cent of the total fleet of dhows annually present in Zanzibar harbour, namely around 500 vessels.3 It was a significant loss for the Sultan. As for France, the right of visit must have had substantial consequences on the dhow trade which constituted the heart of the Sultanate’s economy.4

In the 1860s, Sultan Seyyid Majid was not the only one to complain about arbitrary destructions of dhows by the British navy. Five years earlier, in 1863, European and American merchants had passed a resolution to denounce ‘the present grievances caused by the frequent detention, seizure and destruction of native vessels engaged in legitimate trade ... within and without the dominion of his highness the sultan of Zanzibar, by commanders and officers of the cruisers of Her British Majesty employed in the suppression of the slave trade’.5 This time it was not only the French Consul or the Sultan of Zanzibar who complained about the arbitrary destruction of their vessels but also an American, an Italian, a German; and one British merchant; Captain Frazer, a former navy officer! Humanitarian action as led by the British navy disrupted commerce in Zanzibar waters. The British government was forced to act since free trade was at the heart of its foreign policies, considered as the economic principle Britain had to spread throughout the world.6

Partly as a result of these complaints and other scandals related to the destructions of dhows, a bill was passed in 1869 ‘to regulate and extend the Jurisdiction of Her Majesty’s Consul at Zanzibar in regard to vessels captured on suspicion of being engaged in the slave trade’.7 A year later, a Committee was also appointed by the Foreign Secretary, the Earl of Clarendon, ‘in consequence of the complaints of irregular proceedings on the part of Her Majesty’s cruisers engaged in the suppression of the Slave Trade’ and to reflect upon the best policy, as well as the necessary means, to end the Indian Ocean slave trade.8 The Vice-Admiralty Court was therefore created to determine the legality of the seizure carried out by Royal Navy officers and to prevent abuses. The Bill gave powers of jurisdiction to the British Consul within the Sultan’s dominions: ‘Her Majesty is empowered to exercise jurisdiction within the dominions of the sultan of Zanzibar in regard to vessels captured on suspicion of being engaged in the slave trade’.9 It was a major breach in the Sultan’s sovereignty because the power of justice is known to be the cornerstone upon which a state is built.10

In this light, one can wonder if the establishment of a British ViceAdmiralty court - like the rest of British anti-slavery policies in Zanzibar -did not unintentionally pave the way for British quasi-sovereignty - or colonisation - on the island. It was, of course, presented in a complete different light by British officials, such as the Slave Trade Adviser for the Treasury, who pointed out that ‘it was considered a great injustice to the Arabs that the condemnation [of slave vessels] could only take place at very distant places, as the Cape of Good Hope, Mauritius, or Bombay; and in consequence, a Vice-Admiralty Court was first established at Aden; but Aden was found to be too far, and accordingly ... a Vice-Admiralty Court [was established] at Zanzibar’.11 In fact, there was no secret plan of colonisation behind the creation of a Vice-Admiralty Court. No documents, whether in the British or the French archives, demonstrates that the establishment of the Court was seized as an opportunity to lead secretly a

British Vice-Admiralty Court in Zanzibar 103 more forward policy in Zanzibar. In the 1860s, government officials and political leaders did not use anti-slavery to promote colonial expansion in East Africa. A point which would change in the 1880s as we will see in Chapters Six and Seven.

Created in the fourteenth century, Admiralty jurisdiction expanded throughout the British Empire during the early eighteenth century in the form of Vice-Admiralty Courts. Originally, these courts were granted jurisdiction over maritime law; mainly to settle disputes between merchants and seamen or ‘entertain foreign claims over piracy, spoils, and prize [in the context of privateering]’.12 Their powers were later expanded to deal with the enforcement of customs and smuggling. Vice-Admiralty Courts did not use a jury system. The judge heard all evidence and testimony before handing down a ruling. After the 1807 Abolition Act, these courts played a great role in the British anti-slavery network overseas such as in Sierra Leone for example. They ruled if a vessel seized by the Royal Navy was a lawful prize or not. Vice-Admiralty Courts also ‘inventoried, condemned, auctioned, and redistributed the cash value of any property ... [including people] captured at sea’.13 In the second half of the nineteenth century, Zanzibar became one of the most important of these courts within the global network set up by the British government to end the slave trade across the world. Because of their nature and history, Vice-Admiralty Courts can rightly be considered as a manifestation of British imperial domination overseas. Establishing a Vice-Admiralty Court in Zanzibar was, therefore, an important move. It was also a direct interference into Zanzibar’s sovereignty. This interference was justified by the requirements brought about by the suppression of the slave trade in the Western Indian Ocean. Even though Zanzibar was not a British colony yet - it only became a protectorate in 1890 - this interference was considered lawful by the British government because of its political willingness to lawfully end the slave trade there.

The whole action was based on humanitarian principles, or political ideals, which Britain had promoted in international relations and international law. To a certain extent, this gave a sort of legal legitimacy to this interference since ‘the slave trade has been denounced by all the civilized world as repugnant to every principle of justice and humanity’.14 Taking the slave trade as a universal offense to international law was a revolution that had been initiated by Lord Castlereagh in the Final Act of the Congress of Vienna in 1815, where he obtained the concession that all nations signed a declaration in which the slave trade was declared ‘repugnant to the principles of humanity and universal morality’. The aim, for ‘Great Britain and France’, was ‘to unite their efforts at the Congress of Vienna, to induce all the Powers of Christendom to proclaim the universal and definitive Abolition of the Slave Trade’.15 The slave trade consequently became, in theory only, what the French jurist Henry de Montardy called in 1899 a "crime of lese-humanity', a concept first used in the context of the 1794 abolition of slavery during the French Revolution and equivalent of theexpression ‘crime against humanity’ used by the influential American lawyer Henry Wheaton to condemn the slave trade in 1842.16 Following the recent abolitionists’ revolutionary idea to make slavery a universal crime according to natural law, this concept attempted to make ‘the infamous institution’ a universal offense to mankind, or humanity as it was then phrased, in positive law. But we should come back to this key aspect of the legal revolution brought by nineteenth century humanitarian politics and abolitionism in more details through Chapter Nine. In contributing greatly to the internationalisation of abolitionism through its diplomatic activity, Britain legitimised before international all interferences into the sovereignty of states thanks to the suppression of the slave trade at sea. This enabled the British government to bypass the sovereignty of states and intervene ‘in the name of humanity’.

Establishing Vice-Admiralty Courts in territories that were not British colonies, such as the Zanzibar Sultanate for instance, were just a part of this movement initiated by abolitionism in history. In fact, Britain had built a network of Vice-Admiralty Courts and Mixed Commissions Courts around the globe, in the aftermath of the 1807 Abolition Act, ‘to adjudicate the validity of shipboard seizures’.17 Usually Mixed Commissions Courts were set up on foreign soil thanks to bilateral treaties like in Cuba in 1817 and Vice-Admiralty Courts on British soil - in British colonies - such as the Cape or Mauritius. But it also happened that Vice-Admiralty Courts were set up on foreign soil such as in Zanzibar or Aden, and long before they became British colonies. There, it often was the result of a unilateral declaration issued by the British Parliament. As a matter of fact, no treaty was signed with the Sultan of Zanzibar to authorise a Vice-Admiralty Court to exercise jurisdiction, on the island, over vessels and persons suspected of being engaged in the slave trade. Compared with Mixed Commissions Courts, less is known on Vice-Admiralty Courts on a global scale.

According to the study led by Jenny Martinez, Mixed Commissions Courts completed an incredible task since they ‘heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels’ around the world.18 While Martinez, looks at these Mixed Commissions as the ‘first international human rights court’, pointing that ‘the abolition of the transatlantic slave trade remains the most successful episode ever in the history of international human rights law’, other historians such as Samuel Moyn or Philip Alston argue that this view is nothing but anachronistic since, according to them, human rights only became important in international relations in the 1970s.19 Following the later, Padraic X. Scanlan, studying Sierra Leone’s Vice-Admiralty Court, stressed that ‘any putative connections that might be drawn between the origins of “human rights law” and the doing of the Vice-Admiralty Court are ... specious, tenuous, and unlikely’.20 If we should be cautious with what Marc Bloch called the ‘idols of the origins’ - or looking into the past to create an artificial genealogy for ideas of the present - it is, on the other hand, crucial to put the history

British Vice-Admiralty Court in Zanzibar 105 of humanitarian policies in a wider historical perspective. It is necessary to historicize humanitarianism and human rights and write their history on the longue durée in order to understand their full signification both then and now.21 In short, even if it is, of course, impossible to prove that a historical continuity exists between contemporary international human rights court and nineteenth century Mixed Commissions, this historical precedent certainly provides an interesting historical perspective on twentieth century human rights law. International human rights policies were not born out of the blue in the second half of the twentieth century; it had a history which is now being written by various historians across the world.22 Again we should come back to this point later through Chapter Nine.

In Zanzibar however, the activity of the Court, if far from setting the ground for international human rights law in the twentieth century, fostered humanitarian policies in international relations - namely the struggle against the slave trade - while strengthening Britain’s imperial paramountcy in the Sultanate. To start with, the struggle against the slave trade legitimised imperial interference with Zanzibar’s sovereignty in the name of humanitarian principles. For the better or for the worse, rights of men were by then already an element to be taken into account when dealing with international relations. The bill stated ‘Her Majesty is empowered to exercise jurisdiction within the dominions of the sultan of Zanzibar in regard to vessels captured on suspicion of being engaged in the slave trade’ as already pointed. Framing anti-slavery in Zanzibar into a law giving her representatives power of jurisdiction legitimised Britain’s action not only before the Sultanate but also before international relations. Anti-slavery was thus enforced by law and this made the use of military power at sea completely legitimate. In the meantime, the bill made clear that ‘that is and shall be lawful for Her Majesty to hold, exercise, and enjoy any power of jurisdiction which Her Majesty now hath or may at any time hereafter have within any country or place out of Her Majesty’s dominions, in the same and as ample manner as if Her Majesty had acquired such power or jurisdiction by the cession or conquest of territory’.23 The last part of the sentence had a particularly strong meaning in the sense that it stated that the power or jurisdiction acquired by the Consul in Zanzibar was equal to ‘power or jurisdiction’ gained ‘by the cession or conquest of territory’. Zanzibar, on a jurisdictional point of view, and as far as the suppression of the slave trade was concerned, was in the power of Great Britain long before the Sultanate became a protectorate in 1890. This breach into the Sultan’s sovereignty certainly was a watershed in the history of the island from a legal and a political point of view. In a report sent to the Minister of Foreign affairs in 1869, the Zanzibar French Consul denounced ‘the power embodied by English interference’ in the Sultanate.24 Britain had legally gained imperial paramountcy over the archipelago and its African dominions. To a certain extent, this was a clear and precise analysis of the political situation of the island; the kind of insight only diplomats onthe spot could have. However, as we will now see, the Sultan of Zanzibar paradoxically took advantage of this rather difficult situation even though he was not able to foresee the unfortunate developments this would bring to his realm.

 
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