Say It out Loud - The Coloured People and the Franchise, 1906

From the book: Say It out Loud by Mohamed Adhikari

The Coloured People and the Franchise , 1906

On Tuesday 31st July the principles of the Constitution to be granted to the Transvaal and Orange River Colony will be announced in Parliament; and while White South Africans will be mainly concerned with the question of whether Boer or Briton shall get possession of the reins of Government, the minds of the Coloured races are centred upon the preliminary, but to them infinitely more important point, whether it will be a pure "White" constitution or not.

It is to this latter point that I wish to call attention at the eleventh hour.

The question of Enfranchising Coloured persons apparently turns upon the interpretation of the 8th clause of the Treaty of Vereeniging, which reads as follows: The question of granting the franchise to Natives will not be decided until after the introduction of Self Government.

It has now been shown by a letter, which appeared in the " Spectator " of the 11th inst., that Lord Milner never intended that Cape Coloured people were to be included in the term " Native " . He says: "I may say that personally I have always held that the word " Native " in the terms of surrender meant " Natives " and not Coloured people. I certainly consider that the universal use of language in South Africa makes a clear distinction between the two, and I have never myself heard Cape boys ­ much less Asiatics ­ spoken of as natives. "

Here then we have the true and only interpretation of the word Native as understood by both white and black South Africans ­ an interpretation that will be accepted by all impartial men.

The Boers, however, now wish to include all Coloured people in the term " Native " .

Mr. Lyttleton is reported to have said on the night of the 15th May 1905: "That the Imperial Government, understanding that the Boers interpret the terms of surrender as meaning that the question of enfranchising any Coloured people will be deferred until self-government is granted".

I shall endeavour to point out further the meaning of the term " Native " as understood in South Africa, and it will be seen how far the Boer leaders are justified in their interpretation and whether the Imperial Parliament is bound to accept their definition.

1­ Article 14 of the London Convention of 1884 gives all British subjects, other than Natives, full liberty to enter, travel or reside in any part of the South African Republic, etc. etc.

Even as late as 1899, both the Imperial Government and the Government of the late Republic interpreted the term "Native" in that Convention to mean Aborigines only, and not to include Cape Coloured people or Asiatics (vide Cd 2239, page 40, August 1904). That Convention is the only Political document with which the Treaty of 1902 may safely be compared. In neither of them has the term " Native " been defined. In the former, however, the Boers themselves admitted that the term " Native " does not include Cape Coloured persons, and there is no reason why the wider meaning which they now wish to give to the word in the Treaty of 1902 should be accepted.

11 ­ In the Cape Colony, special definitions are given to the word for the purpose of various Acts; and in every instance "Native" means an aboriginal native only.

In Natal, Law 14 of 1899 also defines the word Native as meaning all members of the Aboriginal Races or tribes of Africa South of the Equator.

In Rhodesia the term " Native " does not include Cape Coloured persons.

In the Transvaal and Free State laws are to be found the following words: " Kleuriing " , " Inbooriing " , and " Naturel " . In the Free State " Kleuriing " , (Coloured person) was sometimes defined as meaning anon-white, as in Law 8 of 1893; at other times it was restricted to include the Cape Coloured people only, as in Law 11 of 1894.

In the Transvaal Law 22 of 1895, the term " Native " or " Naturel " means any person belonging to the Aboriginal Races .

In order to clear up the differences between the meanings of words Kleuriing, Inbooriing and Naturel , I saw Advocate A P N du Toil, who is at present practising at the Cape Bar and who was until the outbreak of the war a Judge under Kruger's regime in Swaziland. He wrote me as follows: "In the local laws of the South African Republic for the year 1894, page 163, I find the term " Kleuriing " thus defined: "The word "Kleuriing" (Coloured person) shall mean every African, Asiatic, Native or Coloured American person, Coolie or Chinese " .

" My definitions (du Toil's) are " Inbooriing " or Naturel equals African Aboriginal Native such as Kaffir, Fingo, Basuto, Swazie, Zulu, Hottentot with pure and unmixed blood, Bushmen, etc. etc.

" Kleuriing " (Coloured person) is a non-white who is not a pure aboriginal native, such as Malays, Indians, Hottentots with mixed blood, and all blacks crossed with Europeans. "

From the above it will be gathered that Cape Coloured persons never were and are not regarded as " Natives " and that the words "Inbooriing" and " Naturel " are the Dutch for "Native" .

Ill ­ Further, it should be remembered that British Government No. 37 of 1901 defined the term "Native" under Proclamation when the country was already a British possession but before the Treaty was signed. That ordinance was amended in 1903 and the term "Native" means one both of whose parents are aboriginal natives.

IV ­ The Native Affairs Commission Report 1903-1905 in classifying the population of South Africa, puts Coloured people in a class by themselves distinct from all others. The Commission adds that that in coming to a conclusion as to the definition of the term " Native " due weight was given to the circumstances under which many of the class above named attained their present worthy position which it is not at present proposed to disturb.

The word used in the Dutch translation of the Treaty of Vereeniging is " Naturel " and, as I have shown above, " Naturel " is the Dutch word for aboriginal Native as defined in the various colonies. The Boer delegates fully understood the meaning of the words Native ( " Naturel " ) and Coloured person ( " Kleuriing " ) and if they intended to include all non-whites in the 8th clause of the Treaty they would and should have used the words "Coloured person" ( " Kleuriing " ). At any rate they were fully aware of the meaning that was given to the word in British South Africa and in their own country. Further, the Imperial Government distinctly informed them in March 1901, that they (Imperial Government) could not consent to purchase peace by leaving the Coloured population in the position in which they stood before the war with not even the ordinary Civil Rights which the Cape Colony had long conceded to them and that the legal position of the Coloured persons will be similar to that which they hold in the Cape Colony, but that the question of granting the Franchise to Kaffirs would not be considered before Representative Government was granted to the colonies.

Such a statement is precise and definite, and is well understood by all men, and shows that the Imperial Government regarded the grants of the franchise to Coloured people and the Natives as two distinct questions.

On the other hand, the Boers never raised the question of the meaning of the word " Native " at the Conference of the delegates at Vereeniging and we are justified in inferring that, having been acquainted with the Imperial view of the case, they were prepared to accept it; and as an attempt is made in Boer quarters to saddle Lord Milner with the responsibility of Clause 8 of the Treaty, in common justice the interpretation of Lord Milner should also be accepted. If, however, we are to discard Lord Milner's interpretation, and the meaning which the word has acquired by usage and custom throughout South Africa, and as defined in the Self Governing Colonies, still there is no reason why we should accept the Boer definition any more than that which was given by the British Government in 1901-1903 in the Transvaal. But seeing that the word " Native " was not defined in the Treaty (nor was it defined in the convention of 1884, in which the Boers as late as 1899 admitted that it did not include Cape Coloured people), and seeing that we have a definition under Proclamation 58 of 1903, and as it has never in any part of South Africa, including the Free State and the Transvaal, been universally used at any time in the sense the Boers now wish to interpret it, I ask is the British Government bound to give way to their construction, a construction opposed to all written and unwritten laws ?

I beg to make the following suggestion: ­

I ­ That the Imperial Government before granting Self-Government to the New Colonies, should wipe off the statute book all those restrictive and offensive laws which humiliate and degrade all non-white, simply and purely on account of the colour of their skin, and against which laws the Imperial Government always protested before the War. They are still there; others have been added to them, and the whole are now enforced with British rigour. They are a disgrace to Englishmen . They loosen the affection of non-Europeans for the flag, and are an insult to humanity. In the Orange River Colony regulations are framed which even enters the sanctity of one's home, while in the Transvaal some laws place a premium on immorality.

II ­ If it be impossible to grant the Franchise to all fully qualified men, irrespective of colour, race or creed, then the British Government should keep direct control over the unrepresented masses, and not hand them over to the Colonists, nor allow the Colonial Government to tax any section of the people until they are represented in the Councils of the State. This is only in accordance with the British principle of no taxation without representation .

Ill ­ Have a reservation in the constitution which will prevent any person being placed under any disability whatsoever simply on account of the colour of his skin.

IV ­ Enfranchise all Coloured persons, other than natives, who according to the mass of available evidence are not, and never were, included in the term " Native " , and I would suggest that a clause somewhat after the following be inserted in the Constitution: " Every male British subject, other than Natives, of the age of 21 years, etc., and who is not subject to any legal incapacities shall be entitled to be registered as a voter. This would afford a way out of the difficulty, if difficulty there be, and cannot be considered, even by the Boer signatories, as a breach of the Treaty.

The 8th Clause of the Vereeniging Treaty says: " That the question of granting the Franchise to 'Natives', etc., etc. "

If the above suggestion is adopted, the Franchise will be granted to all British subjects other than Native , as the Boers are unwilling to accept Lord Milner's interpretation of the term "native", they surely cannot expect that their decision on this matter should be final and accepted by Great Britain. The Chief Justice of the Transvaal, than whom there is no more impartial and just man, will then decide the question. The Under-Colonial Secretary is reported to have said a few days ago, that the Supreme Court will decide who is a white man and who is a Coloured person: but that is going further than the framers of the Treaty contemplated, or than is necessary for the interpretation of the 8th Clause of the Treaty. The word " Native " is used. The term "White person" is not found in the Treaty.

I am, etc.,

A. ABDURAHMAN