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Wednesday 14 November 2018
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Small charges, big implications


“POLICE REGULATIONS lay at the very heart of the [British] slave system,” pointed out one of the Caribbean’s most eminent historians, Prof Elsa Goveia, back in 1960. Most laws of the slavery era have been long superseded.

But Caribbean people continue to be governed by laws that were formed in the immediate aftermath of the end of slavery, many of them actively promoted by the British imperial government.

As a historian of the Caribbean for more than 20 years, I’ve researched the role of the policing of minor offences in reinforcing class, gender, and race inequality across the region.

Immediately after slavery ended, the British colonial government acted quickly to legislate to maintain the power of planters. In September 1838, just a month after the transition to “full freedom,” the British colonial office issued a draft vagrancy law, versions of which were adopted across Britain’s Caribbean colonies.

Vagrancy laws and their close cousins, Summary Jurisdiction or Small Charges Ordinances, were designed to assist landowners in controlling agricultural workers. They often targeted indentured Indian workers on sugar estates, especially in Trinidad and British Guiana.

They also policed all kinds of behaviour that we might imagine to be the choice of the individual, from the clothes people wore to their religious practices. Vagrancy laws often included provisions against obeah, which were widely used against religious practices perceived as African. Provisions against making noise were used to target revival communities in Jamaica, and later legislation that prohibited being “unkempt” was used against dreadlocked Rastafarians. In TT, public-order measures were used to suppress Carnival and Hosay in the 19th century, while in the 20th, specific legislation was passed prohibiting the practice of the Spiritual Baptist faith.

Many parts of the Caribbean still retain summary justice provisions that date from that early post-emancipation period.

In 1837, an ordinance in British Guiana to “Promote Habits of Morality and Decency” declared that anyone over five years of age must be “decently clothed” and that men had to wear at least a “shirt and pair of trousers” and women at least “a shift and petticoat.”

This law was later tightened when it was included in the 1893 Summary Conviction Offences Ordinance. This ordinance made it illegal for anyone “being a man, in any public way or public place, for any improper purpose, [to] appear in female attire; or being a woman, in any public way or public place, for any improper purpose, [to] appear in male attire.”

In this form, the provision remains in force in Guyana today, meaning that cross-dressing is effectively prohibited. This will be challenged in the forthcoming appeal at the Caribbean Court of Justice (the McEwan case).

TT’s nearly century-old Summary Offences Act still contains a provision that a constable may enter premises where he or she suspects people to be rogues and vagabonds are gathered in a number more than ten, or are singing or dancing, and take them into custody and seize their drums, gongs, tambours and chac-chacs (section 60).

The vagueness of “small charges” like this one allowed for their capacious use by the police. In Barbados, substantial numbers of adolescent girls have been convicted of the colonial offence of “wandering,” or leaving home without permission, in the last few years. The situation of these girls and other working-class young people is treated primarily as a problem of public order and law-breaking rather than of marginalisation, discrimination and social welfare. The solution is not to turn these young people into criminals to be dealt with by the criminal justice system, but to provide better support for them, their families and their communities.

Caribbean legislatures and judicial systems need to review the full range of their summary judicial provisions, especially in light of the recent TT High Court decision that “saving law clauses” should not protect unjust colonial-era laws. The judge in that case cited my fellow historian Prof Richard

Drayton, who says these clauses “wrapped an externally imposed legal order formed by centuries of despotism and structural inequality in a knot which naturally became encrusted with political and public inertia until it became our own.”

Many of the provisions of summary justice laws respond to the needs of the rulers of a post-slavery plantation society. Contemporary Caribbean law should instead by driven by the needs of independent 21st-century states, committed to justice and equality for all their citizens.

Diana Paton is William Robertson Professor of History at the University of Edinburgh

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