We are going to have to begin these next chapters of the series from the 19th century. By that period, the British—after centuries of battles and quarrels with fellow Europeans like the Portuguese, the Dutch, Danes, and Swedes—had successfully laid full claim over the Gold Coast. The country was now theirs for the pillaging. A legacy of a governance of thievery immediately took root and took off. The group of differing tribes of people collectively arbitrarily called the Gold Coast by these foreigners, these groups having their own differing rulers and traditions were to find themselves slowly but surely morphed into one unit under one external power. And this foreign power asserted rule over the people, adhering strongly to their core intent and principle of stealing. You know what, one of these days, we are going to have to talk about this in much more detail: the fact that for the African, for the Ghanaian, the introduction of this modern concept of statehood and governance was made to us in the form of thievery and corruption.
The modern concept of political power, for the African, for the Ghanaian came first in the form of theft, not one where rulers orchestrated the course of nationhood for the common good. Political power and governance were never, in the books of the European, intended for the common good of the Ghanaian and African—it was for the rulers’ bellies only.
So, isn’t it funny then, that you and I are sitting here today trying to use the ‘rule of law’ in the same sentence as colonialism? If really, we are to begin this piece with the 19th century, then we must be ready for a very uneventful article—because the rule of law, under colonialism, the Ghanaian, I daresay, had none of that. And it is not like these Europeans had never heard of this common sense called the rule of law before. I mean, Britain for instance, during this period had attained the position of grand master, if you will, in this concept. Having, as far back as the early 13th century, in 1215 to be precise, laid the foundation for the tenets of rule of law into its society—tenets as encapsulated in its legal document, the Magna Carta; tenets that, among many others, suggested that the law was supreme, that all be equally made subject to it, and that the law must protect the fundamental human rights of the people—the European people had no excuse for the ills they dealt the continents and nations of people during their imperial era.
The Magna Carta – First Attempt at Good Law
It all came to a head when a young king lost some lands to another king. The man called John, who afore his becoming king was nicknamed ‘Lackland’—because being the last son of his father, no one expected that he would be inheriting any lands—became King of England in 1199 through a series of lucky occurrences. For one, many of his seven other siblings (born of Henry II and his French Queen of a wife, Eleanor of Aquitaine) died before their father the King. So much so that at the time of Henry II’s death, the throne passed to his fourth child, Richard, a man who was so well-versed in and unfazed by warfare that he spent his very short rule as King of England in France, fighting and losing his life, all in the pursuit of lands and territories. So, this rejected stone, this very unexpected stone, John, became King of England.
During this period of English life and the periods preceding it, society was structured so: there were at the very bottom, engaged in the hard grind of farming and labouring, the serfs, the lowly folks of the land; above these peasants were the overlords called barons—wealthy men, landholders who apportioned out lands to these ordinary folks to work on. And at the very helm of it all was the King. All lands in the kingdom were his—assignments and granting thereof were his prerogative. In this feudal system where all wealth was vested in one man by right, laws were dished out by this man to his subjects as parents would dish out rules to their children. He was above these laws; there were no checks and balances keeping him from turning tyrannical. He did as he pleased—because at his very right hand were the Pope and the Archbishop, bonded together in political alliance. In this very mundane alliance, these men of God were to give celestial validity to the reign of the monarch, saying it was God Herself who had appointed him—to rule as he wanted, unchecked by laws and rules.
Infamously, he and his predecessors ruled with force and will—vis et voluntas. They arbitrarily took executive and legislative decisions that adversely affected the lives and livelihoods of the people. It was the order of the day for properties of subjects, barons to boot, to be seized by the crown; taxes were imposed on the people at whim; subjects were made subject to barbarous acts of the King with no protection whatsoever. The people took these all in their stride for centuries, believing that God Himself willed it upon them.
But of course, if there is one thing that we constantly learn from history, it is that an entire group of people cannot be made subject to a con forever. Don’t get me wrong, one may successfully fool a people at first, but midway through it all, there is always bound to be some eye openings, and then a resistance.
King John had given the people every reason for this resistance. His arbitrary and lawless rule, one heightened by the fact that, much like his father King Henry II, and then his elder brother, King Richard, he was unsatisfied with his territory in England; he wanted France too. But to their very discomfort, France did not come easy, it came at a cost. It was high-maintenance. It was a slippery territory. It had to be constantly fought for with sweat and blood, and when attained, in order to maintain it, it had to be fought for with this same sweat and blood still.
By 1215, King John was fighting a losing battle—he had lost almost all of his ancestral French territories. Wars are expensive. Who pays for them? Isn’t it the lowly folks, sweating blood each day on the fields, engaged as principal tools for the driving of their societies’ economies? Also, there were these barons, who upon attaining their wealth from these poor folks, had to pay to the King, upon constant demands, huge sums of money—just so the King could fund his reckless wars. By 1215, the barons were rightfully tired of being taken advantage of. [Of course, they had under them, a vast number of people, the biggest chunk of the populace, who they were, in turn, also taking advantage of. But that’s a topic for another day, no?].
Fearing an alliance brewing between these angry barons and the French monarch, Louis VIII, over his English territory, King John begrudgingly agreed to a peace talk with these barons. These nobles came with their demands, the ‘Articles of the Barons’ it was then called. In it, the barons made and the King in turn assented to, among many others, these demands: protection from illegal imprisonments, the limitation of taxes (the wanton imposition of taxes), a regulation of the feudal system, women’s rights (e.g., the safeguarding of the rights of widows in inheritance, the prohibition of their forceful remarriages, etc.), the regulation of what can only be called the ‘banks’ of the era (i.e., by giving protection to debtors—no longer was a debtor’s land to be arbitrarily seized upon default, especially when found that there were clearly other means of paying the debt, children were not to pay interest on the debts they inherited while underage, etc.).
The Charter also provided on the establishment and administration of the nation’s court system. For instance, it enacted the establishment of a fixed law court, different from the system of the time, where the King himself was the court, so when he moved, the court of the land moved with him. It forbade the peddling of justice, its denial, or delay. Categorised into 63 clauses in all, this Charter touched expansively on the various aspects of English society. So expansive was its clauses that if they were adhered to, one could boldly henceforth say that England was no longer ruled arbitrarily by one ruler, but by law.
But of course, John had other plans. He was dissatisfied with the very treaty he had just signed, especially clause 61. In order to ensure that these 63 clauses did not end up hortatory—mere white elephants, potent in their wording, but useless in actuality—clause 61 gave power to an indicated number of barons (25 in all) to ensure the King’s compliance to the Charter. Empowered by this clause dubbed the ‘security clause’, these barons could, if found that the King had refused to conform to the Charter, proceed to seize the King’s castles and lands until the King made the needed amends.
The Charter was signed in June; by July, John was assembling the support of the church through the Pope—Pope Innocent III—so he may renege on this agreement. By August, the Pope’s declaration on the matter had arrived. “…not only [is it] shameful and demeaning but [it is] also illegal and unjust [since the King was] forced to accept it. [Hence it is] null and void of all validity forever.” The Pope wrote of the Charter.
Of course, this was nothing but complete nonsense to the barons. They had had enough. Their next resort was in war—in all fairness, King John himself had been anxious to meet them there. This refusal to grant a people some semblance of basic human rights culminated in the First Barons War—fought between John and his own barons. The King was to find allies in the Church—again, through the Pope, while the barons found theirs again, in Louis VIII—a people very interested in laying claim to England. King John lost the war to his own demise—he fell ill and died during the war in October 1216 like an ordinary peasant. Devilishly tragic, isn’t it? Rather than giving his subjects the fundamental benefits of human rights, equality, and freedoms, John was to go down the path against his own people—the barons and peasants alike, a path that culminated in him dying like a peasant, just a year after the signing of this agreement. Upon his death, the barons—a people whose principal beef had been with John—felt they no longer needed that alliance struck with Louis VIII. Henry III, a nine-year-old boy, had succeeded his father, John. And to the barons, an infant who was one of their very own was a better bet than a foreign King. So, they tried their luck with Henry that same year.
Second, Third, Fourth Time for the Law
With a certain William Marshall acting as the young King’s regent, Henry, in order to give these barons the assurance that their rights were indeed going to be upheld during his reign, reissued the Magna Carta—this time around removing some of its then-considered problematic clauses, famously Clause 61. Like its first issuance, this Charter failed at attaining fully, its objects. But this did not stop this instrument from being used constantly as bargaining tool, hence slowly giving it a legacy as pawn, as bait of a sort in getting failing Kings to act right. For instance, in 1223, Henry’s government had begun slowly but surely overstepping their boundaries as stipulated in the Charter, especially when it came to the property rights of the citizens and taxes. The King, having signed the 1217 Charter as an infant, and being, by this time, 1223, still a minor, some people in his government were beginning to question the validity of the Charter using that same excuse of duress—the King had been forced to agree to them, they said. Henry III was quick to dismiss this assertion, reinforcing his commitment to the Charter.
By the years 1224 and 1225, Louis VIII of France was still at it, trying to lay claim to England. Here again we had the Charter, an instrument embodying the rule of law, used as bargaining instrument—the barons were going to help fund the war against Louis, if the King reissued the Charter to meet their demands of rule of law. This time around they were sure to insert a clause that said the King had issued it on his own “spontaneous and free will”. Smart move.
In 1227, Henry, now of age to rule without a regent, was to pull his own bargaining with the Charter, threatening an overturn if the taxes promised by the barons were not paid. In 1253, Henry was at it again, reissuing the Charter in exchange for more money—taxes.
By 1258, the Barons were once again tired—insisting that the terms of the Magna Carta were not being adhered to by Henry. They attempted overthrowing him in a coup d’état. Failing, these two factions—the King and barons—were to attempt settling this matter in an arbitration; an arbitration which itself failed at arriving at peace, leading to the Second Barons’ War. Henry’s son, Lord Edward won this battle; and in 1267, reissued the Magna Carta.
These are human rights we are talking about here. That basic decency, one that says if a person is to be born and made to commit the act of living, they must, at least, be given the benefit of peaceful and good living. Laws made to rule over a people must be fair, just, must treat all equally, must have no man or woman as reigning supreme—above these laws, free to infringe upon the rights of others as they please. These basic principles of humanity are what we find here being used, during this period of English history, to play chaskele. But here’s the thing though, approximately three centuries later, these same people were at our doorsteps—Africa.
I am trying to write shorter articles. So, without warning, I am going to stop writing all of a sudden.
See you next week.
[Published in the Business & Financial Times (B&FT) - 21 October 2022]