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Text and Testimony in the Tribunal de Première Instance, Dakar, During the Early Twentieth Century

Published online by Cambridge University Press:  22 January 2009

Richard Roberts
Richard Roberts
Affiliation:
Stanford University
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Extract

Historians have recently come to appreciate the importance of studying the colonial legal system and the potential in mining court cases for historical data. This article is a preliminary effort to present a methodology for the study of the records of the entry level civil court, the tribunal de première instance, in Dakar, Senegal. The records are somewhat peculiar, because they are the consequence of the extension of the legal rights to the African originaires of the four communes of Senegal, which empowered them to bring civil cases before this court. However, these records share with records from other courts in colonial Africa problems of determining how the litigants' ‘testimony’ was shaped by the legal procedures of the court. This article, therefore, focusses on the context in which litigants' testimony was transformed into the texts we read as court records. In particular, it examines how the phases of litigation and how the court's bias towards written evidence shaped the court records. This research was stimulated in part by the need to locate new sources providing African ‘voices’ about the changes associated with the transition to colonialism. This article concludes with an appraisal of the historical potential of using court records for African social history.

Type
Courtroom Dramas
Information
The Journal of African History , Volume 31 , Issue 3 , November 1990 , pp. 447 - 463
Copyright
Copyright © Cambridge University Press 1990

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References

1 I have selected this case from among one file of 83 cases contained in the Archives Nationales, République du Sénégal (ANS) 5 M 201, 1914–15, because of my research on the handicraft textile industry in West Africa. The Seck v Wade case, although initiated in December 1913, is filed with other cases from 1914 to 15. The case also contains a fairly representative sample of what these records contain, including a letter of complaint, the police procès verbal, and some correspondence between the Procureur's office and the police. Some files in this series contain nothing more than a letter of complaint; others contain more detail on grievances and supporting testimony. Most of the cases involve grievances, but some are requests for changes in civil status, such as divorce, inheritance, and recognition of paternity. Others are reports of accidental or suspicious deaths. The ANS 5 M 200 series contain a considerable run of files, beginning with 1885; more files are in the process of being catalogued. I selected the file 1914–15 more or less at random.

2 For example, Chanock, M., Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, 1985)Google Scholar; Chanock, M., ‘Writing South African legal history: a prospectus’, J. Afr. Hist., XXX (1989), 265–88CrossRefGoogle Scholar; Hay, M. J. and Wright, M. (eds.), African Women and the Law: Historical Perspectives (Boston, 1982)Google Scholar; Falk Moore, S., Social Facts and Fabrications: ‘Customary’ Law on Kilimanjaro, 1880–1980 (Cambridge, 1986).Google Scholar Historians have also focussed on colonial court cases as episodes in larger political histories, for example, Crowder, M., The Flogging of Phinehas McIntosh: a Tale of Colonial Folly and Injustice, Bechuanaland 1933 (New Haven, 1988)Google Scholar, and Rathbone, Richard, ‘A murder in the colonial Gold Coast: law and politics in the 1940s’, J. Afr. Hist., XXX (1989), 445–61.CrossRefGoogle Scholar

3 I know of only three scholars who have made even marginal use of case materials. See Snyder, F., Capitalism and Legal Change: an African Transformation (New York, 1981)Google Scholar; Sarr, Dominique, ‘La Chambre Spéciale d'Homologation de la Cour d'Appel de l'AOF et les coutumes pénales de 1903–1920’, Annales Africaines, 1 (1974), 101–16Google Scholar; Sarr, D., ‘Jurisprudence des Tribunaux Indigènes du Sénégal: Les causes de rupture du lien matrimonial de 1872 à 1946’, Annales Africaines, 11 (1975), 143–78Google Scholar; and Dunbar, R. A., ‘The evolution of bridewealth and dowry in West Africa: case studies from Senegal and Niger’, unpublished paper presented at the Stanford—Emory Conference on Law in Colonial Africa, Stanford, 1988.Google Scholar For a more extensive study of Belgian colonial court records see, Dickerman, C., ‘The use of court records as sources for African history: some examples from Bujumbura, Burundi’, History in Africa, XI (1984), 69–81CrossRefGoogle Scholar, and Dickerman, C., ‘African courts under the colonial regime: Usumbura, Ruanda—Urundi, 1938–62’, paper presented as part of the series on ‘Sources and methods for the study of law in colonial Africa’, annual meeting of the African Studies Association, Atlanta, 1989.Google Scholar

4 This article was originally presented as part of the series on ‘Sources and methods for the study of law in colonial Africa’, annual meeting of the African Studies Association, Atlanta, 1989, organized by K. Mann and R. Roberts. I wish to thank David Anderson, Bill Bravman, David W. Cohen, Martin Klein, Jim Lance, Kristin Mann, Thom McClendon, Jim Mokhiber, Donald Moore and David Robinson for their helpful comments. Funding which enabled me to conduct this research was provided by the Social Science Research Council and the Pew Foundation.

5 The Stanford—Emory conference on ‘Law in colonial Africa’ was supported by the SSRC, the Ford Foundation, Stanford Humanities Center, and by both Emory and Stanford universities. We gratefully acknowledge their support. Roberts, R., ‘The case of Faama Mademba Sy and the ambiguities of legal jurisdiction in early colonial French Soudan’, in Mann, K. and Roberts, R. (eds), Law in Colonial Africa (Portsmouth, NH, forthcoming).Google Scholar

6 In another project, I have started to reflect on the methodological and epistemological problems associated with ‘silences’ in the oral record. Donald Moore and Richard Roberts, ‘Listening for silences’, and Roberts, Richard, ‘Reversible social processes, historical memory, and the production of history’, History in Africa (forthcoming).Google Scholar

7 The second order tasks, which go beyond the scope of this article, would be to examine the language of litigation within the tribunal de première instance against the range of expressions of conflict in colonial Senegal in order to assess how the court actually shaped conflict. K. Mann and I have outlined such an argument for colonial Africa in our ‘Introduction: law in colonial Africa’, in Mann and Roberts (eds.), Law in Colonial Africa.

8 The position of procureur as the head of the judiciary followed the Second Republic's reorganization of the colony. Hilde, E., L'Organisation judiciaire en Afrique Occidentale Française (Paris, 1912), 66–7.Google Scholar

9 In France, however, two entry level courts existed virtually side by side: the tribunaux de première instance heard civil cases and the tribunaux de police heard criminal cases.

10 The struggles between administrators, magistrates, and Senegalese centered around the vagueness of the boundaries between ‘citizenship’ and ‘nationality’. While ‘nationality’ conveyed electoral and legal rights, it did not necessarily entail unambiguous citizenship, which would have negated the special privileges accorded originaires to retain their Muslim civil status. Even administrators and magistrates were often uncertain about the prevailing interpretation. For example, see the correspondence between the Commandant Thiès to Lieutenant-Governor Senegal, 28 Feb. 1906, Thiès; Lieutenant-Governor Senegal to Commandant Thiès, n.d., Saint Louis; and Governor-General Merlin to Lieutenant-Governor Senegal, 30 Nov. 1906, Dakar, ANS 2 M. This exchange centers on the ambiguities of legal jurisdiction concerning a case involving a female originaire. Even the celebrated 1916 citizenship law, which formally recognized the originaires as French citizens, maintained the ambiguities surrounding French civil and Muslim personal status. See Buell, R. L., The Native Problem in Africa (New York, 1928), Vol. 1, 946–53Google Scholar; Johnson, G. W., The Emergence of Black Politics in Senegal: the Struggle for Power in the Four Communes, 1900–1920 (Stanford, 1971).Google Scholar I wish to thank Jim Mokhiber for bringing this correspondence to my attention.

11 For an introduction, see Rémond, R., L'Anticlericalisme en France, de 1815 à nos jours (Paris, 1985).Google Scholar

12 Sarr, D. with Roberts, R., ‘The jurisdiction of Muslim tribunals in colonial Senegal’, in Mann, and Roberts, (eds.), Law hi Colonial Africa.Google Scholar

13 O'Brien, D. Cruise, ‘Towards an “Islamic policy” in French West Africa’, J. Afr. Hist., VIII (1967), 303–16CrossRefGoogle Scholar; Robinson, D., ‘French “Islamic” policy and practice in late nineteenth-century Senegal’, J. Afr. Hist., XXIX (1988), 415–35CrossRefGoogle Scholar; Sarr, ‘The jurisdiction of Muslim tribunals’.

14 Opoku, K., ‘Traditional law under French colonial rule’, Verfassung und Recht in Übersee, 1974, 139–53Google Scholar; Buell, , Native Problem, 946–7.Google Scholar

15 Quellien, A., La politique musulmane dans l'Afrique Occidentale Française (Paris, 1910), 227.Google Scholar

16 Muslim tribunals were re-established in Saint Louis, Dakar, and Kayes in 1905 and extended to Rufisque in 1907. In 1911, Ponty decreed that all decisions in Muslim courts must henceforth be recorded in French. His stated concerns were that this would ensure impartiality on the part of Muslim cadis and assessors, but it also opened the door to more effective control over Muslim tribunals. See Moreau, P., Les indigènes dans l'A.O.F.: leur condition politique et économique (Paris, 1938), 156Google Scholar, and Hilde, , Organisation, 103.Google Scholar

17 But the revision of the 1912 decree qualified the jurisdiction of cases brought by the originaires. In their home districts and in the major towns of the other colonies of French West Africa, the originaires fell under the jurisdiction of the French courts. Outside the home districts and the major towns, they were answerable to ‘native’ jurisdiction.

18 David, R. and de Vries, H., The French Legal System: an Introduction to Civil Law Systems (Dobbs Ferry, 1958), 15, 34.Google Scholar See also Merryman, J. H., The Civil Law Tradition: an Introduction to the Legal Systems of Western Europe and Latin America (Stanford, 1969).Google Scholar This distinction may help explain why legal anthropology is much more advanced in British and American universities than in French ones. It also helps explain why Gluckman focussed on the logic of Barotse judges and why Fallers was so concerned with the Soga judges' task in interpreting the ‘reach’ of legal concepts.

19 Stumberg, G., Guide to Law and Legal Literature of France (Washington, D.C., 1931), 149.Google Scholar Because these codes are usually published separately, they can give the impression that they are not critically integrated in practice. This is not, however, the case.

20 Stumberg, , Guide, 148–9.Google Scholar

21 For this preliminary description of civil procedure, I have used Crémieu, L., Précis théorique et pratique de procédure civile (Paris, 1924)Google Scholar, and Japiot, R., Traité élémentaire de procédure civile et commerciale (Paris, 1929)Google Scholar, because their publication dates most closely approximate the cases I have examined. Before I can discuss with any authority the nature of civil procedure in Senegal, I will have to hunt for manuals used there.

22 Crémieu, Précis, 219.

23 In the absence of any recognized form of legal citation for these cases, I cite them as plaintiff v defendant and the date of the letter of complaint.

24 Davis, N., Fiction in the Archives: Pardon Tales and their Tellers in Sixteenth-Century France (Stanford, 1987), 22.Google Scholar

25 Johnson, , Emergence, 113.Google Scholar

26 In November 1913, J. d'Oxoby began publishing a weekly which became an independent voice in Senegalese politics. La Démocratie published political satire and exposed government scandals. Not surprisingly, d'Oxoby was the object of public resentment. D'Oxoby was equally quick to push to the limit his political and legal rights. See Johnson, , Emergence, 103–4.Google Scholar

27 See for example, Lowy, M., ‘A good name is worth more than money: strategies of court use in urban Ghana’, in Nader, L. and Todd, H. F. Jr. (eds.), The Disputing Process: Law in Ten Societies (New York, 1978).Google Scholar

28 I have not been able to determine what the costs of such services were, but anyone who has been to French West Africa can still see the écrivains publics plying their trade on the steps of the central post offices in most cities.

29 Even before the procès verbal, the Procureur had already found in favor of Mariem Seck and had sent her complaint to the Commandant de Gendarmerie and instructed him to ‘register the depositions of the plaintiff Mariem Seck and Mamadou Wade and advise the latter to restitute in the shortest possible delay the sum of 126 francs’ (Seck v Wade, letter Procurer to Commissaire de Gendarmerie, 15 Dec. 1913).

30 This case does not fit into the molds I have described. Instead, the case revolves around an Italian inmate in Dakar's prison complaining that two fellow Italian inmates had beaten him and threatened him further. There is no formal letter of complaint, only a procès verbal conducted by prison authorities.

31 Davis, Fiction.

32 Bennett, W. L. and Feldman, M. S., Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture (New Brunswick, 1981), 3, 94.Google Scholar

33 Bennett, and Feldman, , Reconstructing Reality, 6–7.Google Scholar

34 Confronted with the evidence in the carnet and the supervisors' testimony, Baba Diene admitted having received cash advances totalling 28 francs at two separate times. Despite the willingness of Makate Diouf and Malic Gueye to pay Baba Diene 10 francs from their own pockets, Baba Diene refused to accept and continued to demand the 20.30 francs he claimed was owed him.

35 Bennett, and Feldman, , Reconstructing Reality, 6–7.Google Scholar Of course, Bennett and Feldman assume that is it only social action which is ambiguous, rather than contexts. Compare Marks, Shula, Ambiguities of Dependence in South Africa: Class, Nationalism, and the State in Natal (Baltimore, 1986)Google Scholar, who suggests that not only is social action ambiguous, but so too are the ‘structures’ within which social action is expressed.

36 See Roberts, R., ‘Women's work and women's property: household social relations in the Maraka textile industry of the nineteenth century’, Comp.St. Society and Hist., XXVI (1984), 229–50.CrossRefGoogle Scholar For Senegal see Pitt, C., ‘An economic and social history of the Senegambia textile industry’ (unpublished Ph.D. thesis, University of Chicago, 1978), 12, 125–7Google Scholar; Joseph, M., ‘West African indigo cloth’, African Arts, 11 (1978), 34–7.CrossRefGoogle Scholar

37 See Curtin, P., Economic Change in Precolonial Africa: Senegambia in the Era of the Slave Trade (Madison, 1975)Google Scholar; Hopkins, A. G., An Economic History of West Africa (London, 1973)Google Scholar; Newbury, C. W., ‘Trade and authority in West Africa’, in Gann, L. H. and Duignan, P. (eds.), Colonialism in Africa, 1870–1960, vol. 1 (Cambridge, 1969).Google Scholar

38 A. Christelow, ‘Theft, homicide, and oath in early twentieth century Kano, Nigeria’, in Mann and Roberts (eds.), Law in Colonial Africa; Anderson, J. N. D., ‘Muslim procedure and evidence’, parts I and II, J. Afr. Administration, 1 (1949), 123–9; 1 (1949), 176–83Google Scholar; Rosen, Lawrence, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge, 1989).Google Scholar

30 See Reefe, T. Q., ‘The biggest game of all: gambling in traditional Africa’, in Baker, W. J. and Mangan, J. A. (eds.), Sport in Africa: Essays in Social History (New York, 1987).Google Scholar

40 Gluckman, M., ‘Introduction’, in Epstein, A. L. (ed.), The Craft of Social Anthropology (London, 1967), xvi.Google Scholar

41 Fallers, L., Law without Precedent: Legal Ideas in Action in the Courts of Colonial Busoga (Chicago, 1969), 34.Google ScholarClifford, J. makes the same point when he argues that the courtroom encounter is an ‘odd refracting and enlarging lens’, in The Predicament of Culture: Twentieth Century Ethnography, Literature, and Art (Cambridge, MA, 1988), 328–9.Google Scholar

42 For an introduction to this literature, see Coombe, R. J., ‘“Same as it ever was”: rethinking the politics of legal interpretation’, McGill Law Journal /Revue de droit de McGill, XXXIV (1989), 603–52.Google Scholar

43 Cohen, D. W., ‘Comments: sources and methods for the study of law in colonial Africa’, unpublished paper presented at the annual meeting of the African Studies Association, Atlanta, 1989.Google Scholar