Chapter XXII: The State’s Administration

JUSTICE—NATIVE CHIEFTAINCIES

[Sidenote: A Difficult Problem.]

To provide a just and equitable process for giving effect to the civil laws of a savage country requires an administrant force of exceptional powers, of rare patience, and of wide sympathies. Highly civilised communities largely govern themselves by the aggregate contribution and example of all orderly persons. The very momentum of their civilisation and the habits and tendencies of a cultured people conduce to the observance of law and the tranquillity of the social life to which the law applies. Rules of State and municipal procedure for the government of European countries have, by use and the experience of time, long ago attained to an automatic operation. The social phenomena of all civilised communities are well established, and they form part of that large body of academic theory called social science. The development of human society has its constitution and its philosophy, yet those who are charged, by a duty arising from exceptional circumstances, to apply social and political principles to savage tribes distantly situated from all civilising contact with human beings of superior attainment, are charged with a task of unknown and multiform difficulty.

The characteristic thoroughness with which the Belgians have established their administrative machinery in the Congo Free State is apparent in the latest report (July, 1904) of Vice-Governor-General Fuchs, the acting head of that Government. Monsieur Fuchs has had twenty years’ experience in Central Africa. He is, perhaps, the best-qualified living colonial official dealing with the black races of the African Continent. The great progress of the country he governs, and the moral and material betterment of the tribes which thrive under his liberal rule, are astonishingly revealed in the report from which the following quotations are made:

The development of the State administration is attested in a
general way by the ever-increasing number of Posts of different
kinds that are in operation in its territories.

Thus there are at the present time 233 Posts and Stations, all
of them under the command of white men, scattered over the 14
districts.

The European staff attached to the services of the districts
mentioned is distributed as follows:

Organic Staff 294
Service of Justice 57
Administrative Service 115
Medical Service 27
Service of Public Works 92
Service of Agriculture 89
Service of Finance 74
The Public Force 490
Service of the Marine 166
Various 20
————
Total 1424

The number of blacks attached to the different services of the
districts is about 20,000 men.

I here render justice to the zeal and devotion of the servants of
the State; besides Belgians, who form the great majority, they also
comprise Italians, Swiss, Scandinavians, Germans, English, etc.,
according to the following order:

Belgians, 898; Italians, 197; Swiss, 89; Swedes, 86; Danes, 34;
Germans, 31; Norwegians, 22; Finns, 19; English, 16; Dutch, 9;
Russians, 5; French, 4; Austrians, 3; Americans, 2; Turks, 2;
Luxemburgers, 2; Portuguese, 2; Greeks, 1; Spaniards, 1; Cubans, 1;
total, 1424.

To whatever nationality they belong they vie with each other in
the ardour with which they perform their numerous duties. All
are penetrated with the greatness of their rôle in the heart of
savagery, and impelled by the noblest emulation compete in the
gradual realisation of our civilising work. Numerous are the
testimonies that I have collected during my last official tour of
their fruitful activity exercising itself in all directions, of
their protecting benevolence with regard to the natives; and these
testimonies emanate from missionaries, from learned men, from
travellers, and even from persons inclined rather to criticise than
to praise our works.

In order that this staff may become more experienced, by acquiring
progressively a knowledge of the country, its resources, and its
inhabitants, it has been particularly recommended to the agents
composing it that they should learn the native dialects. Knowledge
of the local idioms is, indeed, indispensable to the European who
seeks to enter into direct relations with the blacks—to study their
manners and customs, and by that means take account of the measures
to employ for the introduction and development of our ideas of
civilisation.

The judicial statistics show the vigilance and impartiality with
which the Parquet (Public Ministry corresponding to our Public
Prosecutor) inquires into breaches of the law, no matter who
their authors may be, and aims at allowing no offence to remain
unpunished. If some faults have been committed by our agents, the
guilty have been prosecuted conformably to the law.

The attention of the members of the service besides has been
frequently called to the consequences which would result for them
from transgressing the laws and instructions of the Government.
In order to ensure their faithful and complete execution, the
Government has just again added to the staff of superior officials
new State Inspectors.

DEPARTMENT OF JUSTICE

The magistrates by profession number at the present time 32; they
are assisted by 25 judicial agents properly so called.

The judicial services of Boma, to which are attached seven
magistrates by profession, and a dozen judicial agents, allow of:

1. An _Appeal Court_, composed of a President and two judges, of
the State Prosecutor who occupies the seat of the Public Minister
on this jurisdiction, and of a Registrar;

2. A _Council of War in Appeal_, the presidency of which devolves
on the President of the Appeal Court, of two judges, officers of
the Public Force, of the State Prosecutor, and of a Registrar;

3. A _Court of First Instance_, composed of a professional judge,
of a substitute, a doctor of laws, and of a Registrar;

4. A _Council of War of First Instance_, composed of a judge,
officer of the Public Force, of the substitute attached to the
Court of First Instance, and of a Registrar.

These four jurisdictions are competent in penal cases. Those
occurring under 1 and 3 are competent also in civil and commercial
matters. They sit in such cases without the Public Minister. A
report of the Registrar of the Court of First Instance attached to
this sets forth the order of civil business.

The other professional magistrates are distributed between the
territorial courts and the councils of war.

Territorial courts exist at Matadi, Leopoldville, Popokabaka,
Coquilhatville, New Antwerp, Basoko, Stanleyville, Toa
(Albertville), Lukafu, Kabinda (Katanga), Lusambo, and at the
chief place of the Rusisi-Kivu zone (Uvira), independently of the
councils of war, which will be shortly replaced by ordinary courts
as the number of magistrates is increased. The Parquet attached
to these courts is represented by the substitutes of the State
Prosecutor, all of whom are doctors of laws.

Among the following officials of judicial rank the majority are
Belgians. There are also Italians, Danes, Swiss, and Norwegians.

_President of Court of Appeal_: Baron G. Nisco.

_Judges, Court of Appeal_: M. Horstmans, M. A. Gohr.

_Judge, Court of First Instance_: M. T. Beeckman.

_Prosecuting Attorney_: M. F. Waleffe.

_Director_: M. A. Gohr.

_Magistrates_ (_Territorial Judges and Substitutes_): Ernest
Dupont, Hermann Weber, Iwan Grenade, Louis Rossi, J. Jenniges, P.
Vincart, C. M. B. L. Greban de St. Germain, Stanislas Lefranc,
Martin Rutten, Albert Sweerts, Robert de Meulemeester, Michel
Cuciniello, Angelo Cagginla, Mario Falcetti, Gennaro Bosco,
Frederic Erdrich, Manlio Scarpari, F. J. S. M. Lambin, Torquato
Polimante, Louis Tessaroli, Paul Bossolo, T. C. Lund, H. G.
Moth-Borglüm, C. J. R. Vandekelder, A. A. A. Celletti, C. E. A. M.
Smets, C. L. Gianpetri, Jacob Vogt, Ragnvald Koht, T. Fessante,
Adrien Beeckman.

The administration of justice shows that its representatives are conscious of the responsibility of their mission. No one has ever been able to impugn its impartiality and independence, and the judgments and sentences awarded establish its anxiety to reach all the guilty, and not to leave unpunished any breach of the laws for the protection of the natives. I will not mention any other examples of this than the judgments recently pronounced against the agents of a trading company, upon whom heavy sentences of penal servitude were passed for crimes committed upon natives. The tribute which the Government on that occasion paid to the Courts’ sense of their duties will be a valuable encouragement for them. I am confident that the Government’s appeal to the vigilance of the Department of Public Prosecution to prevent any offence of the kind passing unpunished will not be in vain.

[Sidenote: The Negro as a Witness.]

The superior administration of Boma is instructed to follow the principle of bringing before the competent courts all cases of abuses of natives that are pointed out to it by the authorities, by the direct complaints of residents in the Congo, or by criticisms in the press. These last accusations, the frequency of which is found to coincide with the campaign conducted against the Congo State, are regularly submitted on the spot to careful examination in detail. The impression that is left by the investigations that have been made, and some of which are still unfinished, is that as a general rule the complaints formulated are wanting in the precision necessary to fix the responsibility, if any, for them; or that they rest exclusively on the gossip and statements of natives which have not been sufficiently verified. In this latter respect a long experience of African affairs has shown me with what circumspection, not to say with what distrust, the statements of the blacks must be accepted. Their peculiar mental characteristic renders them inclined to lie with an ease that is disconcerting, and magistrates are obliged to direct their inquiries and questionings with real skill and untiring patience in order to arrive at the truth amongst the inaccuracies and omissions of coloured witnesses. That will reveal how much and how often the stories of sensational facts circulated by natives are distorted by them, when they are not absolutely invented, and what disappointments those who accept them too easily prepare for themselves. A typical case is that of a Protestant missionary who was accused by natives of having inflicted on the black engineer of his mission’s steamer blows and wounds that caused his death. The judicial investigation disposed of this charge, which had been fabricated in all its details by the natives with the view of avenging themselves on the missionary, with whom they were engaged in a dispute on a question of wages. And yet the natives making the accusation never ceased for a moment, despite the proofs to the contrary, from maintaining their lying charges with a persistency which could not fail to create an impression. It is to be regretted that Mr. Casement[19] was not put on his guard against the statements of the blacks, and especially by this incident, of which he could not have been ignorant, since the missionary concerned accompanied him during the inquiry into the case of Epondo, whom the natives also represented to have been the victim of a criminal act.

I will, by another example revealed during a recent inquiry, show how much the charges brought against the Administration of the State are wanting in prudence. Some correspondence from a missionary published in England has given rise to violent comments in the press of that country upon the Congo Free State. When invited by the State Prosecutor to formulate and present his charges, this missionary did not allege anything against the State agent, whom, in his writings he had charged with responsibility for odious crimes. He had invoked, as corroborating his own statement, the affirmations that other European agents had made to him; he declared by what follows that these affirmations were to be kept strictly confidential. “It is true,” he adds, “that these facts have been published, but as the publication was made in England I thought that the confidence placed in my discretion was not betrayed.” He also declares that “before accepting the responsibility of revealing and specifying in a precise manner the facts, he desires to consult, and take the opinion of, if not a barrister, at least some one knowing Congolese law, and that the extracts published of his letter have not perhaps been made with strict precision of language.” In short, the want of clearness, the subterfuges of the examination, attracted the attention of the State Prosecutor, and left on his mind the most unfavourable impression as to the good faith of this missionary, and as to his highly blameworthy manner of recognising the hospitality that he has hitherto enjoyed in the Congo.

I have entered into these few details in order to show the occasionally inconsiderate character of the attacks directed against our Administration.

[Sidenote: Intrigues against the State.]

And I owe it to truth to make another reproach, not less grave, with regard to certain foreign elements which do not seem to have an exact view of their duty in inculcating the natives by their example and teachings with the respect due to the authority of the State and to its representatives. It is impossible not to be struck by the strange rumours in the vicinity of the Protestant missions, which for some time have been announcing to the population a change in the established order, and predicting the end of the State. There natives have been seen to offer insults to the European agents; officers of the Companies have lodged complaints as to the arrogant attitude of part of the population subject to certain influences; a tendency to shake off the duty due to the State, and to repudiate respect for our laws, has manifested itself among them. It is not doubtful that here we see the result of the underhand intrigues sapping, more or less intentionally, the legal authority. The remark inevitably follows that this position reveals itself solely in the neighbourhood of some evangelical posts, and it assumes a more significant character when it is known that the tendency of these establishments is to exercise over the surrounding population a sort of sovereign power, in opposition to “Boula Matari,”[20] thereby creating a state of antagonism between the influence of the mission houses and the authority of the State agents. I have pointed out for the attention of the Government this grave position, and the measures that it ought to take if it continues. Already local agents have been obliged to act on their own initiative to safeguard the State’s authority, and if it becomes necessary the Governor-General will consider the occasion for making use of the means placed at his disposal, by the decree of 15th September, 1889, for dealing with foreigners who should employ against the State their influence over the natives.

It would be desirable that an appropriation be provided to carry out the plan at present under examination, of establishing on the Upper Congo a number of civil courts and a second Court of Appeal.

In my opinion the Government ought to go farther in the way of developing our judicial machinery. A point which has not ceased to attract attention is, in the first place, the recruiting of the staff. Whatever may be the goodwill of the judicial agents, it is beyond doubt that some newcomers have not always possessed, before their entrance into our judiciary, a sufficiently long experience of judicial practice. I here renew the wish, already expressed, to hear that judges of Belgian courts and parquets be authorised to obtain leave of absence to occupy judicial posts in the Congo.

The spirit in which this recommendation by the Vice-Governor-General was received in Belgium is clearly indicated in the following announcement on behalf of the Minister of Justice at Brussels:

The Minister of Justice has just authorised Belgian magistrates who
may be desirous to do so, and be accepted by the Congo Free State,
to undertake, by a limited engagement, to serve as judges in the
Congo,—and for that purpose, to obtain leave of absence without
pay, save that their rights of seniority in the Belgian magistracy
are to be reserved....

The Congo has been for us a field of heroism. It has enabled
numerous Belgians, who were smothering within their frontiers, to
prove their value in a much broader sphere, where territorial,
political, and diplomatic conditions permitted some display of
their inborn qualities, and to reveal themselves first-class
pioneers, soldiers, and administrators.

If considered only from an ideal point of view, this advantage is
well worth something. And those of our officers who out there have
put down slavery, pacified the native tribes, opened the ways of
navigation, commerce, and industry, created agricultural stations,
depots, railways, forest exploitations, and roads will surely
from this point of view alone have rendered our little country as
much service as they could have rendered it in the service of our
garrisons.

It has often been said that narrow frontiers mean narrow ideas. To
broaden our horizon, is to broaden our ideas. It seems to us that
without going beyond these considerations, this decision taken by
our Department of Justice deserves to be commended.

Without any burden on our Treasury on that account,—since the
Belgian judges serving in the Congo will, during the term of their
service, cease to draw upon our budget,—our magistracy will be
losing nothing of their value, so justly appreciated, by delegating
a few of their members—selected from the youngest—in those new
regions where their knowledge of law, coming into more direct
contact than at home with nature and practical needs, will acquire
renewed strength at the very springs of equity and juridical
conscience.

At the same time, their authoritative participation in the colonial
undertaking will contribute to do away with the very suspicion
of those abuses which, after being systematically exaggerated
by interested opponents, have been used as a pretence for this
deplorable Congophobe campaign which has led away in England a few
minds more generous than enlightened.

Fortified in this manner, the Congolese magistrates, who even now
worthily bear comparison with any colonial magistracy, will, by the
mode of their recruitment, and their own merit, command respect
from our adversaries.

They will be continually renewed, which is advisable in these
tropical regions, where the conditions of climate very soon exhaust
individuals, and the new and continued relations which will thus
progressively spring up between Belgium at home and its African
extension will contribute to force into our colonial undertaking
the best part of our traditions and of our national spirit.

It would be also useful if the _ambulatory_ character attributed
by Congolese law to the Courts of First Instance were made more
effective, by rendering it an obligation for these courts to move
about periodically throughout the extent of their province, to sit
regularly at important centres, and to betake themselves to all
points to which the necessities of their presence required them to
proceed. This object might be easily attained, if only there were
placed at the disposal of the magistrates the material means—with
regard to transport, provisions, and lodging—that the frequency of
these movements on circuit might call for.

I would also recommend a new measure which would consist in
establishing in the different jurisdictions a corps of special
agents who should be remunerated by the Government, and whose
mission would be to discharge in the interests of the natives the
rôle of barristers. At present it is to the magistrates themselves
that the native addresses himself in order to obtain the necessary
counsel for the protection of his rights. It would be preferable
that those who may be called upon to lay down the law on a conflict
of civil right, should not fill also the post of being counsel to
one of the parties. On the other hand, from the penal point of view
the measure that I propose would permit of professional defenders
being assured to the accused. This institution, which it would
be necessary to render of as general application as possible in
the Upper as in the Lower Congo, would thus place on the spot, at
the disposition of those natives who thought they had ground of
complaint, gratuitous defenders of their interests.

Indeed it would be useful to constitute in Belgium a Court of
Cassation to which the sentences and definite judgments in penal
matters which might possibly be contrary to the law should be
submitted. Such a court might be composed of members of the Belgian
Court of Cassation, or of the Appeal Courts admitted to the grade
of _emeritus_, or actually practising.

It will certainly seem natural that these different opportunities
of co-operating in the Congolese work should be given to the
Belgian magistracy. Belgium would see therein, as it seems to
me, the occasion of drawing closer the links of a moral nature
which already unite it to its future colony, and the mission not
without distinction which Belgian officers have fulfilled and are
fulfilling in Africa would find its complement in the collaboration
of jurists of merit who can be counted in our country in great
numbers.

NATIVE CHIEFTAINCIES

The institution of native chieftaincies, due to the decree of 6th
October, 1891, realises an idea too just and too politic for it
not to receive all the extension possible. If during the first
days that followed the promulgation of that decree the district
Commissioners displayed praiseworthy emulation in recognising
native chieftaincies, it is not less certain that these have not
rendered, up to the present, all the services which we could
expect, so far as they were called upon to create between the
European authority and the natives a natural intermediary, having
its duties and responsibilities, and calculated to facilitate the
action of the Government.

The cases in which it has been applied still show the advantages
of the system and testify to the greater facility with which the
natives rally to the new order of things when it is personified
in their eyes by the chief whom they have always recognised. It
is proved that respect for the orders of authority, obedience to
the laws, the execution of legal obligations, such as military
recruiting and the payment of taxes,—in a word the principles
of an organised social state, are more easily accepted by the
natives forming part of a chieftaincy than by those who are quite
independent. The chiefs, besides, have generally a real influence
over the population, and thus, as has several times been said, if
they feel themselves supported they will succeed in making our
ideas prevail and in imposing them on the natives through our
support.

Another appeal has just been quite recently made by the local
government to all the chiefs of districts and zones in order to
inspire them with these views, and so that they may increase the
official chieftaincies to a great extent.

The instructions issued are inspired by a double object: _to
maintain and even to extend the authority of the chiefs over their
subjects, to avoid all intervention in the internal affairs of the
tribes_ which would be of a nature to compromise the prestige of
that authority.

“It is the right of the chief,” these instructions declare, “to
assure the execution of his orders according to native rules and
particularly to bring to his decision the sanction demanded by
native custom.”

The only restriction on the authority of the recognised native
chiefs lies in the necessity for them not to run counter, in the
decisions taken, to public order, that is to say, principles
which are at the base of the organisation of society, as it is
comprehended and wished to be by the legislator.

The chief’s authority ceases as soon as the measures taken are
contrary to that public order.

Thus, in matters of private right, the native chief could not
legitimately take any course which would assail the organisation
of families constituted under the _régime_ of the civil Code, and
according to its prescribed form,—in other words, entered on the
European statute.

On the other hand, he could not establish slavery, oppose religious
liberties or commercial liberty, or order acts contrary to the
penal law.

Still it is necessary to remark that he may employ coercive and
repressive measures to ensure, as chief, and within the limits of
his power according to custom, the execution of his orders.

But this sanction itself would be contrary to public order if its
character differed from our ideas of what repression should be,
more especially if it were accompanied by torture, mutilation, or
other acts of cruelty, or if it were surrounded with superstitious
practices, such as the proof by poison; in a word, if it were
really to run counter to our ideas of humanity and the civilising
object of the State.

Corporal punishments, similar to those employed by the State and
in a similar measure to what is employed by it, inflicted by the
native chief according to custom, would evidently not be contrary
to public order.

Such are the regulations set forth in a general way which govern
the 258 recognised native chiefs in their participation with the
political life of the State.

These instructions recommend to the territorial authorities
“continual relations with the native chiefs, incessant instructions
and recommendations, a direction and control without interruption,
and a moral and material support in order to maintain and increase
the chief’s authority with a similar object,” and to the judicial
authorities “an intervention marked by prudence in order not to
diminish uselessly the chief’s authority, and not to destroy, or
even weaken, the influence that he should have, and of which the
Government means to make use for the spread of civilisation.”

The care of maintaining intact and of developing the principle of
the chief’s authority might perhaps one day be carried farther.
It would indeed be permissible to wish that, in the future, all
the decisions of an administrative and judicial character, passed
by the European authorities themselves, should be executed by the
intermediary of the recognised chief; in other words, the native
would receive orders only from his natural chief.

This measure, when it becomes possible, will produce the best
results with regard to order and discipline, the natives being less
inclined to rebel against the orders of the chief whom they have
freely chosen.

In order to avoid the abuse which might result from ignorance of
our laws, and to make the native chief acquainted with his rights,
there should be attached to the _procés verbaux_ of investitute of
the chiefs a protocol setting forth the penalties that it will be
permissible for the local authorities to continue to apply, as in
the past, with a specific mention of the offences subject to their
jurisdiction.

They will be made acquainted with this act on their investiture,
at the same time as they are instructed as to the general
obligations imposed on them by the State, and which should also
figure in the document in question.

All that precedes evidently relates only to native chiefs properly
so-called, and not to the present sultans who, as prescribed by the
Government’s instructions, must not have the authority which they
at present possess increased.

FOOTNOTES:

[19] His Britannic Majesty’s consul, author of the Report referred to in a succeeding chapter.

[20] The name which the natives applied to Stanley. It is now used to designate the State.