The name is absent

through examples that highlight court room tensions and drama while revealing
the problem Ofjustice in Colonial Africa.

Pre-Colonial Oathing in African Systems of Law

The practice of oathing has been a long and dynamic system of facilitating
African law and order. Prior to colonialism, oathing was practiced to administer
African law. The oath was used to resolve difficult judicial matters and worked to
discover the truth in disputes. In these questionable cases, an oath practice
such as swearing on the kithitu was highly regarded for identifying innocence or
guilt.⁹ However, the stakes for false oathing were high, including death for the
oather and the oather’s family.¹⁰

For this study of colonial criminalization of the Mau Mau oath, the
important point is that prior to Mau Mau, oathing was used to support and
complement legality and justice especially in pre-colonial Kenya. All oath types
like the kithitu worked together with the Utui elders to help resolve disputes that
were more difficult and required spiritual intervention. Oathing was not unique to
Kenya but was an old practice that spanned geographical boundaries, ethnicity,
beliefs, and religions.

Allan Christelow, a scholar on Kano, an Islamic city in northern Nigeria,
states that “testimony and oath lie at the heart of the legal process.”¹¹ His study

⁹ D.J Penwill,. Notes on Kamba Customary Law, Syracuse Collection, Machakos District. August, 1950.
Film 2804 Roll 9, i-ii. Also Dundas, “History of Kitui”, The Journal of the Royal Anthropological Institute
of Great Britain and Ireland 43 (July-December, 1913): 480-589. Citation on 510-514.

¹⁰ Kithitu oathing was discussed in detail for its historical significance in the chapter, “The Oath Across
Time and Space.”

¹¹ Mann and Roberts, Law in Colonial Africa, 208.

Ill

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