Gregory Mann - What Was the Indigenat

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WHAT WAS THE INDIGÉNAT? THE ‘EMPIRE OF LAW’ IN FRENCH WEST AFRICA

GREGORY MANN

The Journal of African History / Volume 50 / Issue 03 / November 2009, pp 331 353DOI: 10.1017/S0021853709990090, Published online: 12 January 2010

Link to this article: http://journals.cambridge.org/abstract_S0021853709990090

How to cite this article:GREGORY MANN (2009). WHAT WAS THE INDIGÉNAT? THE ‘EMPIRE OF LAW’ IN FRENCH WEST AFRICA. The Journal of African History,50, pp 331353 doi:10.1017/S0021853709990090

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WHAT WAS THE IND IG ENAT ? THE ‘EMP IRE OF

LAW’ IN FRENCH WEST AFR ICA*

BY GREGORY MANN

Columbia University

ABSTRACT: What was the indigenat? This article approaches this question viathree arguments. First, a study of the indigenat (the regime of administrativesanctions applied to colonial subjects) challenges the idea that French West Africaformed part of an ‘empire of law’. Second, a dynamic spectrum of political statusesdeveloped around the indigenat until its abolition in 1946. This spectrum is no lesssignificant than one of its poles alone, that of colonial citizens. Third, the indigenat,its narrative of reform, and its relationship to law, bureaucracy, and authorityilluminate the tensions between imperial rhetoric and colonial governance.

KEY WORDS: West Africa, colonial administration, law, state.

WHAT was the indigenat, that obscure core of the French colonial state? Inapproaching this deceptively simple question, this article will make threeintertwined arguments. First, a study of the indigenat – the regime of ad-ministrative sanctions applied to colonial subjects – disrupts the argumentthat French West Africa was part of an ‘empire of law’, as historians ofFrench colonialism in Africa and Southeast Asia have argued.1 Particularlyin the absence of European settlers and the accompanying anxieties aroundrace and ‘dignity’ that they provoked among colonial administrators, law assuch was neither the heart of the imperial project nor the cornerstone ofcolonial authority in FrenchWest Africa.2 Second, until its abolition in 1946,

* A very preliminary version of this paper was presented to Leonard Smith’s FrenchEmpire Workshop, Oberlin College, 18 November 2005. I thank Professor Smith and hisstudents, Alice Conklin, Eric Jennings, and Daniel Sherman, for their comments on thatoccasion; Eike Karin Ohlendorf, Daouda Gary-Tounkara, Jim Brennan, and MarciaWright for comments or assistance; and Laurent Maniere for sharing his thesis.

1 E. Saada, ‘The empire of law: dignity, prestige, and domination in the ‘‘colonialsituation’’ ’, French Politics, Culture and Society, 20 (2002), 98–120; R. L. Roberts,Litigants and Households: African Disputes and Colonial Courts in the French Soudan,1895–1912 (Portsmouth, NH, 2005). Note that Saada adopts an expansive definition of‘ law’ in Les Enfants de la colonie: les metis de l’empire francais entre sujetion et citoyennete(Paris, 2007), 13, note b.

2 Here one might affirm the claim of Aime Cesaire, that colonization was not ‘funda-mentally … an attempt to extend the rule of law’: Discourse on Colonialism, trans. JoanPinkham (New York, 2000), 32. Two distinctions within the French empire must berecognized here: first, between colonies with legislative regimes and colonies, such as theFederation of French West Africa (the AOF), that were ruled by decree; second, betweenthe ‘non-settler ’ colonies such as the AOF and colonies in which laws predicated on raceaimed to control interactions between individuals and populations of ‘native’ and ‘for-eign’ (especially European or Asian) origin. On the first distinction, see R. Delavignette,

Journal of African History, 50 (2009), pp. 331–53. f Cambridge University Press 2009 331doi:10.1017/S0021853709990090

an ever-expanding and contracting spectrum of political statuses, exemp-tions, and privileged categories developed around the indigenat in bothmeanings of that term – the regime of sanctions and the status of the native(indigene). This spectrum is potentially more revealing and surely no lesssignificant than one of its poles taken alone, namely the narrow category ofcolonial citizens on which a rich literature exists.3 Indeed, susceptibility to orexemption from the indigenat represented both marker and motive for theproliferation of political statuses in French colonial Africa. Third, attentionto the workings of the indigenat allows a reassessment of the role of violencein the practice of colonial authority. In contrast, studies focusing on coloniallaw tend to diminish the role of such violence – whether enacted or po-tential – and to privilege legal institutions and procedures over day-to-daypractices revealed, however imperfectly, via other sources.4 Rather thantraversing an analytical terrain of which agency and structure mark the

‘La Politique de Marius Moutet au Ministre des Colonies’, in P. Renouvin and R.Remond (eds.), Leon Blum: chef de gouvernement, 1936–37 (Paris, 1965), 390–4. On thesecond, see Saada, ‘Dignity’ ; Saada, Enfants, esp. ch. 4; A. Stoler, Carnal Knowledge andImperial Power: Race and the Intimate in Colonial Rule (Berkeley, 2002); I. Merle,‘Retour sur le regime de l’indigenat : genese et contradictions des principes repressifs del’empire francais ’, French Politics, Culture and Society, 20 (2002), 77–97, published in aslightly modified version as ‘De la ‘‘ legalisation’’ de la violence en contexte colonial : leregime de l’indigenat en question’, Politix, 66 (2004), 137–62. On law, race, and settlercolonies in sub-Saharan Africa, see notably M. Mamdani, ‘Beyond settler and native aspolitical identities : overcoming the legacy of colonialism’, Comparative Studies in Societyand History, 43 (2001), 651–64; C. Lee, ‘The ‘‘native’’ undefined: colonial categories,Anglo-African status and the politics of kinship in British Central Africa, 1929–1938’,Journal of African History, 45 (2005), 455–78; M. Crowder, The Flogging of PhinehasMcIntosh: A Tale of Colonial Folly and Injustice, Bechuanaland 1933 (New Haven, 1988);D. Anderson, Histories of the Hanged: The Dirty War in Kenya and the End of Empire(New York, 2005); C. Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag inKenya (New York, 2005); and C. Elkins, ‘Race, citizenship, and governance: settlertyranny and the end of empire’, in S. Pederson and C. Elkins (eds.), Settler Colonialism inthe Twentieth Century: Projects, Practices, and Legacies (New York, 2005), 203–22.

3 See notably M. Diouf, ‘Assimilation coloniale et identites religieuses de la civilite desoriginaires des Quatre Communes (Senegal) ’, Canadian Journal of African Studies, 34(1999), 565–87; R. Shereikis, ‘From law to custom: the shifting legal status of Muslimoriginaires in Kayes and Medine, 1903–1913’, Journal of African History, 42 (2001),261–84; C. Coquery-Vidrovitch, ‘Nationalite et citoyennete en Afrique OccidentaleFrancaise: originaires et citoyens dans le Senegal colonial ’, Journal of African History, 42(2001), 285–305; G. Wilder, The French Imperial Nation-state: Negritude and ColonialHumanism Between the Two World Wars (Chicago, 2005); A. Conklin, A Mission toCivilize: The Republican Idea of Empire in France and West Africa, 1895–1930 (Stanford,1997); G. Wesley Johnson, The Emergence of Black Politics in Senegal: The Struggle forPower in the Four Communes, 1900–1920 (Stanford, 1971); M. Crowder, Senegal: AStudy of French Assimilation Policy (rev. edn, London, 1967). See also E. Saada, ‘LaRepublique des indigenes’, in V. Duclert and C. Prochasson (eds.), Dictionnaire Critiquede la Republique (Paris, 2002), 364–70. A. I. Asiwaju made a similar point, directing hisargument against studies of assimilation and association: Asiwaju, ‘Control throughcoercion: a study of the indigenat regime in French West African administration,1887–1946’, Bulletin de l’Institut Fondamental d’Afrique Noire, series B, 41 (1979), 40.

4 For a comparable argument regarding the tendency of American social science towrite violence out of studies of independent Egypt, see T. Mitchell, Rule of Experts:Egypt, Techno-politics, Modernity (Berkeley, 2002), ch. 5.

332 GREGORY MANN

coordinates and law the terra firma,5 or invoking the indigenat as anti-struc-ture,6 I place it at the center of an analysis of the ‘colonial situation’,7 not asthe luminous essence of colonial ideology but as its inverse, a kind of blackhole that represents a center of gravity into which it is difficult to peer butwhich defines the space around it.

WHAT WAS THE INDIG ENAT ?

A ‘regime of exception’ based on rule by decree, enacted in often arbitraryand sometimes spectacular punishments, and concerned primarily with as-serting administrative power, the indigenat was first established in Algeria in1881.8 Its use spread across the empire of the Third Republic: a regime ofadministrative sanctions based on the Algerian model was extended toSenegal in 1887 and to the newly created federation of French West Africa(AOF) in 1904; a colonial court system had been introduced throughout theAOF in 1903.9 Thus, virtually from the moment of their creation, courtsoperating under ‘customary’ and colonial law evolved side by side with atertium quid, an unspoken and roughly sketched domain of ‘non-law’.Crimes – murder, theft, and the like – fell under the purview of colonial tri-bunals on which local notables sat, presided over by French commandants.Offenses, on the other hand, and however loosely defined, were met witharbitrary, albeit limited, sanctions at the discretion of local commandants,who could jail, fine, or bind people.10

Thus, in spite of a complex system of courts and colonial justice – anoxymoron one should not allow to become naturalized – the indigenat

5 As Richard Roberts ably does in ‘Representation, structure and agency: divorce inthe French Soudan during the early twentieth century’, Journal of African History, 40(1999), 389–410. 6 A. Mbembe, On the Postcolony (Berkeley, 2001).

7 G. Balandier, ‘La Situation coloniale : approche theorique’,Cahiers Internationaux deSociologie, 11 (1951), 44–79.

8 The phrase ‘regime d’exception ’ appears in a 1918 circular on the synthesis of thevarious texts of the indigenat and it remained in use for decades: see S.Mbaye,Histoire desinstitutions coloniales francaises en Afrique de l’Ouest (1816–1960) (Dakar, 1991), 71–2;and, e.g., Gouverneur General de l’Afrique Occidentale Francaise (hereafter GGAOF)de Coppet to Administrateur de la circonscription de Dakar, 25 Jan. 1937, no. 134 AP/2,Archives Nationales du Senegal (hereafter ANS) 17G97. GGAOF Ponty had character-ized the indigenat in much the same way in 1913: L. Maniere, ‘Le Code de l’indigenat enAfrique occidentale francaise et son application: le cas du Dahomey (1887–1946) ’ (un-published PhD thesis, Universite Paris-VII – Denis Diderot, 2007), 216.

9 On the development of colonial legal structures in the AOF, see Roberts, Litigants,chs. 2 and 3; Mbaye, Histoire, ch. 4; A. Baccard, ‘[La Justice:] En Afrique noireet a Djibouti ’, in J. Clauzel (ed.), La France d’Outre-Mer (1930–1960): temoignagesd’administrateurs et de magistrats (Paris, 2003), 649–72.

10 The severity of sanctions changed over time. One might take as a kind of benchmarkthe version of the indigenat decreed on 15 November 1924. Depending on the adminis-trative district, it allowed for fines of up to 15 or 100 Frs, imprisonment for up to 5 or 15days, and bondage in case of non-payment of fines for up to 15 days, depending on theamount of the fine. Under the terms of the same decree, governors could intern in-dividuals, seize their goods, and either assign them to a place of residence or forbid themfrom visiting a given place for up to ten years. See GGAOF, Textes reorganisantl’indigenat en AOF (Goree, 1926).

THE ‘ EMPIRE OF LAW ’ IN FRENCH WEST AFRICA 333

provided legal cover, however scant, for colonial coercion until after theSecond World War. In 1946, the indigenat finally fell to a long-runningprocess of reform that had been at work within the colonial administrationand the Ministry of Colonies for over two decades before being pushed alongby General Charles de Gaulle, head of the provisional government of theFrench Republic, beginning in Brazzaville in 1944.11 A parliamentary assaultled by newly elected African parliamentarians such as Lamine Gueye, FelixHouphouet-Boigny and their allies delivered the coup de grace. Along withthe very status of colonial subject (a phrase also captured by the termindigenat), it was abolished throughout an empire then in the process of beingformally reconstituted as the French Union, in which former subjects wouldhold an ambiguous citizenship.For nearly sixty years, the indigenat had enshrined administrative power

and ensured that colonial administrators – particularly commandants – couldinflict swift punishments for any challenge, real or perceived, to their per-sonal authority and that of the colonial state. It was perhaps the most im-portant element of the administrative tool kit. When, as recounted by aprominent historian, men and women spent long nights along the marshes ofthe inland delta of the Niger slapping the water with their hands in order toquiet the frogs that troubled an administrator’s sleep, the indigenat was atwork.12 In 1932, when an African auxiliary (garde-cercle) stuffed recalcitranttaxpayers into a small dwelling in which ten of them would suffocate, it wasthe indigenat that originally provided legal justification for his actions.13 And

11 On Brazzaville, see J. R. de Benoist, L’Afrique occidental francaise de 1944 a 1960(Dakar, 1982), 26. Gueye would continue to push for reform of ‘native justice’ in themonths after Brazzaville: see GGAOF to Procureur General du Service Judiciare, 1March 1944, no. 486 AP/1. Abolition occurred first via a series of texts issued under theprovisional government, before the establishment of the Fourth Republic : Minister ofColonies to GGAOF, 6 Aug. 1945, no. 10476 AP; Ch. De Gaulle, Decree 46-D137 (illeg.)of 22 Dec. 45, printed in Journal Officiel de la Republique Francaise, 26 Dec. 1945, pro-mulgated in the AOF on 29 Dec. 1945, printed in Journal Officiel de l’AOF, 5 Jan. 1946,(vol. 42, no. 2201); and Telegram, M. Moutet, Minister of Colonies to GGAOF, 28 Feb.1946, no. 215/CIRC AP/1; Telegram, Haut Commissaire de l’AOF Cournarie toGovernors, AOF, and to the Circonscription of Dakar, 8 March 1946; all from ANS17G168. Abolition was secured by the law of 7 May 1946, known as the ‘Loi LamineGueye’. The indigenat had been very significantly reformed in Algeria in 1927, whenjustices of the peace began to hear charges brought under it. Some refer to this as itsabolition in Algeria, while others insist that it existed in this diminished form until 1944:Saada, ‘Republique’, 368; Merle, ‘De la ‘‘ legalisation’’ ’, 142, n. 14. Asiwaju over-reaches the evidence in attributing the demise of the indigenat in West Africa to localresistance, especially violence and emigration: ‘Control’, 69–70. I would argue that it wasabolished not because it was ineffective but because it quite effectively underpinned acertain kind of empire, one that African and (loosely speaking) Leftist political maneu-vering, including the designs of Maurius Moutet, the Minister of Colonies (1936–37,1946–47), rendered impracticable. By the same token, its abolition represented not a steptowards eventual independence but rather greater incorporation into a rapidly and pro-foundly changing republican political system. On these points, see generally H. Arendt,The Origins of Totalitarianism (New York, 1994; 1st edition 1948), esp. ch. 8; morespecifically, see F. Cooper, Colonialism in Question (Berkeley, 2005), ch. 7.

12 Interview with Bakari Kamian, Bamako, 11 July 2002.13 Accounts of the tragedy can be found in ANS 15G38v17, Archives Nationales du

Mali (hereafter ANM) 2D105FR, and ANM 2D27FR. This appears to have been a

334 GREGORY MANN

in the same year, when a man died of a cerebral hemorrhage after a week indetention, the only charge against him – the cause of his imprisonment – wasa ‘bad attitude towards paying his taxes’, an offense punishable under theindigenat.14

The term ‘ indigenat ’ itself is often translated as ‘the Native Code’, aphrase that suggests a false parallel to ‘native’ or ‘customary’ law in theBritish colonies. ‘Customary’ law worked to enable British rule by estab-lishing and protecting the authority of African chiefs or elders.15 Theindigenat did no such thing – at least, not after a period of experimentation inwhich it empowered chefs de canton (canton chiefs). That period ended in1912.16 Thereafter, the indigenat served to protect administrative authority,of which chiefs were considered mere ‘representatives’.17 It never relied onthe fiction of custom.Moreover, just as ‘customary’ law itself was not necess-arily customary, this ‘Native Code’ was neither ‘native’ in origin nor truly acode.18 MahmoodMamdani may have best captured the sense of the indigenatin writing that ‘ it crudely and brazenly put on the law books as rules the gist

technique repeated elsewhere, sometimes with the addition of hot peppers thrown oncoals in a confined space to create a noxious and suffocating gas. For similar examples, seeH. Brunschwig, Noirs et Blancs dans l’Afrique noire francaise, ou comment le colonisedevient le colonisateur (Paris, 1983), 143; M. Saul and P. Royer,West African Challenge toEmpire: Culture and History in the Volta-Bani Anticolonial War (Athens, OH, 2001), 100;and A. H. Ba, Oui, Mon Commandant! Memoires II (Arles, 1994), 174–9.

14 Registre d’ecrous, San, 1932, ANM 2M309FR, dossier 17. Note that this man was notcharged with failing to pay his taxes but simply failing to do so with good will.

15 From a vast literature, see T. Spear, ‘Neo-traditionalism and the limits of inventionin British colonial Africa’, Journal of African History, 44 (2003), 3–28, esp. 13–16; B.Shadle, ‘ ‘‘Changing traditions to meet current altering conditions’’ : customary law,African courts, and the rejection of codification in Kenya, 1930–1960’, Journal of AfricanHistory, 40 (1999), 411–31; K. Mann and R. L. Roberts (eds.), Law in Colonial Africa(Portsmouth, NH, 1991).

16 R. L. Buell, The Native Problem in Africa (2 vols., New York, 1928), I, 1016.17 Whether or not the indigenat protected the authority of chiefs was a matter of some

confusion among high-ranking administrators in the mid 1930s. Although Dakar insistedthat it did indeed, the Governor of Guinee voided several individual sanctions on thegrounds that it did not, and in one case went so far as to argue that the indigenat could onlybe invoked to sanction offenses against ‘European agents of authority’. Dakar rejectedthis interpretation. See Commission Permanente du Conseil d’Administration, GuineeFrancaise, 16 Feb. 1935, no. 42 API; GGAOF, Circular, 1 July 1935, no. 265; GGOAFto Gouverneur du Guinee Francaise, 27 April 1936, no. 214; and Directeur des AffairesPolitiques et Administratives (hereafter DAPA), note for GGAOF, 30 April 1936, no.472 AP/2; all from ANS 17G84.

18 Although the indigenat was not technically a code, it is often described as such, and Ihave retained the term for felicity of usage and to diminish repetition. Colonial juristsoften distinguished it from a code by referring to it as a ‘regime ’ : Merle, ‘De la ‘‘ legal-isation’’ ’, 142. On the irregular practices of colonial judgment and punishment thatexisted before the indigenat was elaborated in the AOF, see Roberts, Litigants, esp. 60–1.On codification, see also Wilder, French Imperial Nation-state, 106–11; J.-H. Jezequel,‘ ‘‘Collecting customary law’’ : educated Africans, ethnographic writings, and colonialjustice in French West Africa’, in B. Lawrance, E. Osborn, and R. L. Roberts (eds.),Intermediaries, Interpreters, and Clerks: African Employees in the Making of ColonialAfrica (Madison, 2006); and, e.g., Comite d’Etudes Historiques et Scientifiques del’AOF, Coutumiers juridiques de l’AOF, tome 1: Senegal ; tome 2: Soudan Francais (Paris,1939).


of day-to-day practice in the colonies’.19 While Mamdani is not entirelycorrect – the indigenat marked limits rather than rules – his point on day-to-day practice is entirely accurate, and goes a long way towards explaining whysuccessive generations of commandants battled fiercely with their adminis-trative superiors to preserve the powers with which it provided them.The indigenat defined the very status of ‘native’ on which colonial rule

relied and, as a ‘code’, it listed offenses that ‘by definition only ‘‘natives’’could commit’.20 Thus, the indigenat was ultimately both a set of sanctionsand a colonial state of being.21 The 1924 revision of the indigenat enumeratedtwelve offenses, reduced from fifty in previous versions. These included

obstruction to the collection of taxes and execution of prestations; refusal to ex-ecute work of interest to public order, security, or public utility; refusal to answer asummons from the administration … committing any act of a nature to weakenrespect for French authority … refusal to accept French money having legal cir-culation22

and so on. Future revisions would continue to whittle down or ratchet up thenumber and quality of offenses recognized under this ‘regime of exception’.In apparent contradistinction to the case in Indochina – analyzed bySaada – the code in the AOF did not ‘ include increasingly precise descrip-tions of affronts to colonial prestige’.23 Rather, the question of what con-stituted an ‘affront’ remained vague. In other words, in the AOF thereduction in the number of offenses did not represent liberalization or ration-alization but an entrenched arbitrariness. The indeterminate nature of theindigenat – neither law nor its opposite – served to realize the dual and con-tradictory imperatives of assuring an expansive and rapid field of ‘action’,so cherished by commandants and their champions,24 and extending thecontrol of the colonial administration, from the ministry in Paris to gover-nors-general and governors in colonial capitals, over its own agents in thefield.25 And it did so amid the appearance of reform and of the gradual ex-tension of the rule of law. That is to say, the process of reform did not runcounter to the logic of the indigenat but was a fundamental part of it.26

Examining the indigenat closely tells us a great deal about the shifting theoriesand practices of French colonial rule. It can do more than that, however, for

19 M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of LateColonialism (Princeton, 1996), 126–7. 20 Saada, ‘Republique’, 368.

21 On the latter sense of indigene and indigenat, see Mbembe, Postcolony.22 Buell, Native Problem, I, 1018.23 Saada, ‘Empire’, 101. Likewise, although the versions current in French West and

Equatorial Africa (AEF) included among their articles one forbidding burial of humanremains except in official cemeteries, Florence Bernault argues persuasively that what wasat stake in the AEF was not ‘prestige’ but a struggle over the representation of powerthrough the control of bodies and body parts: F. Bernault, ‘Body, power and sacrifice inEquatorial Africa’, Journal of African History, 47 (2006), 207–39, esp. 231, n. 78.

24 R. Delavignette, Freedom and Authority in French West Africa (London, 1950; 1stedition 1946).

25 The inspectors of administrative affairs played an important role in this struggle andprovide key sources for Merle, ‘De la ‘‘ legalisation’’ ’.

26 Compare Foucault’s argument on punishment and reform: M. Foucault, Disciplineand Punish: The Birth of the Prison (New York, 1977; 1st edition 1975), esp. 82. Thus thesignificance of the phrase ‘regime d’exception ’ (see n. 8 above).

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the very existence of the indigenat, the dynamic and ongoing process of itsreform, and its complex relationship to law, bureaucracy, and authorityspeak to the ability of empire to survive republican regimes and nestle withinthem, or, inversely, to the capacity of republics to accommodate on theirsupposed margins the absence of law and the rise of rule by decree.27

AN ‘EMPIRE OF LAW’ ?

The vein of law is a rich one. Mining it can reveal where and how colonialadministrators and their interlocutors were rational or irrational in theirprojects, reactive or imaginative in their designs, conservative or innovativein their policies. If law can provide a key to intellectual history, the study ofcourt cases can illuminate social history.28 And yet there is an impasse inscholarly writing on law in the colonial context. Law is a culprit for some,29 aneutral agent30 or form of structure for others.31 Such characterizations maygive rise to elegant arguments, often placing property and exchange at thecore of their analyses.32 However, taken as a whole, such work suggests – ormay explicitly state – that the French colonial regime was fundamentally alegal regime, one to which law and legal processes were central. By this logic,the absence of the trappings of law as practiced in the metropole – rangingfrom uniformity to the independence of the judiciary or the notion of thejuridical subject as an individual (as opposed to a collectivity) – would rep-resent a transitory aberration, an anomaly to be explained away, rather thanthe very foundation of a system of government that obtained in the coloniesbut was unthinkable in the imperial metropole.33 Attention to the indigenatexposes the limits of that key – and ultimately colonial – argument.Despite its centrality to the lived experience of colonialism and the light it

potentially sheds on the core of administrative power, the indigenat had untilquite recently rarely been the subject of concentrated study,34 and it remainspoorly understood by historians of Africa and of French colonialism.35 Over25 years ago, A. I. Asiwaju sought to demonstrate the significance of theindigenat for the elaboration of French imperial practice and argued for theimportance of its decline. I concur with Asiwaju that the indigenat lay atthe very heart of colonial rule and administrative power in francophoneAfrica. An understanding of it is crucial to any comprehension of the livedexperiences of Africans under French colonial rule and of the operations ofan administration fundamentally concerned with maintaining ‘order’ at the

27 See Arendt, Origins, 243–5; Wilder, French Imperial Nation-state ; Merle, ‘De la‘‘ legalisation’’ ’, esp. 139–40. See also Anderson, Histories.

28 Roberts, Litigants. 29 Mamdani, ‘Beyond settler and native’.30 Merle, ‘De la ‘‘ legalisation’’ ’ ; Saada, ‘Empire’.31 Roberts, Litigants ; Mann and Roberts, Law ; Wilder, French Imperial Nation-state.32 See L. Benton, Law and Colonial Cultures: Legal Regimes in World History,

1400–1900 (Cambridge, 2001); Roberts, Litigants.33 Wilder approaches this problem in his discussion of law and political rationality, but

leaves the indigenat aside: French Imperial Nation-state, chs. 3 and 4.34 In addition to Merle, ‘Retour’ and ‘De la ‘‘ legalisation’’ ’, see Maniere, ‘Code’;

O. Gueye, ‘Droits de l’homme et pratique historique: le code de l’indigenat’ (unpub-lished PhD thesis, Universite Cheikh Anta Diop de Dakar, 1995–96).

35 See, e.g., J. P. Dozon, Freres et sujets: la France et l’Afrique en perspective (Paris,2003), 135–44.


lowest possible cost. Yet Asiwaju’s view was resolutely Manichean. TakingFrantz Fanon as his central point of reference – and with an implicit nodtowards the then-current thesis of underdevelopment – Asiwaju emphasizedthe interplay of the physical and ‘structural ’ violence (or ‘social injustice’) atthe foundation of colonial rule. Thus, if for him the indigenat represented the‘resuscita[tion] of the essential characteristics of ‘‘ the Reign of Terror’’ of[French] history’,36 the violence it enabled was ultimately intended to in-crease economic production. However, the contradictions of the indigenatelude such ready analysis. In fact, under the Vichy regime, administrators inDakar explicitly forbade the use of the sanctions recognized by the indigenatto punish those who refused to produce non-edible crops destined solely forexport.37 That the principle tool used to sanction colonial coercion could notbe employed to force export-oriented production at a time of war and econ-omic crisis is astounding, and could give credence to the ‘empire of law’thesis. After all, what kind of administration other than one representing an‘empire of law’ intentionally establishes legal barriers to imperial interests?One in which partisans of a centralized, bureaucratic regime based on rule bydecree battled both liberals who sought to extend the reach of the law andlocal commandants jealous of their power and their prerogatives.38

Law itself was neither a culprit nor an agent of colonial rule. It was at oncea tool, the utility of which is evident, and an alibi.39 Throughout the interwaryears, colonial administrators used the ongoing process of reform, or theextension and amelioration of legal systems, as rhetorical cover for theircontinued reliance on coercion and violence. That alibi wasmade increasinglynecessary by metropolitan critics of the colonial regime, by anti-colonialAfrican radicals and activists (often writing from France, where the indigenatdid not apply), by the increasingly managerial and bureaucratic approach togovernance adopted at the colonial capitals, and by the growing attentionpaid to an administration that could never quite realize the claim that theempire represented a boon rather than a burden for the metropolitan state.Moving forward with the premise that, at least on the ground, law was analibi, I now turn to what it enabled.

PRACTICING THE INDIG ENAT

It is difficult to approach the indigenat as a historical problem. Narrative isscarce, yet two forms of it compete. The narrative of reform, driven andchronicled by Paris and Dakar until the indigenat’s demise, suggests that the

36 Asiwaju, ‘Control’, 53.37 DAPA to Directeur des Services Economiques, GGAOF, Dakar, 20 Feb. 1942, no.

430 AP/1, ANS 17G168. The indigenat itself, of course, remained in effect.38 The first element of this argument draws on Arendt, Origins. It intersects with that

of Merle, who argues that ‘the French state’ (or the Ministry of Colonies) sought to usethe indigenat to ‘frame’ or calibrate the exercise of violence by civilian or military officersas much as to subjugate the Kanaks in the wake of conquest : ‘Retour’, 85, 91; ‘De la‘‘ legalisation’’ ’, 150. In comparison, Saada argues that their desire to defend colonial‘dignity’ and ‘prestige’ led imperial officials to discourage the use of force and to investgreat energy in policing and maintaining control over Indochina’s Europeans: ‘Empire’,105, 115; Enfants, 72.

39 Cf. C. Young, who uses the metaphor of a shroud: The African Colonial State inComparative Perspective (New Haven, 1994), 154.

338 GREGORY MANN

administration grew increasingly rational and liberal as it approached ahorizon beyond which its authority would emanate from colonial capitals andbe grounded exclusively in law, rather than being dispersed in cercles andcontingent upon the personal qualities of commandants and their agents.40

Yet that very language of reform must be understood as a fundamentalelement of the object of study, the indigenat, rather than as its antidote or,less dramatically, as evidence of its amelioration. A competing set of narra-tives of episodic brutality and arbitrary sanctions exists primarily, althoughnot exclusively, in West African memories.41

By their very nature, traces of the indigenat and the kind of coercion itsanctioned that appear in oral histories tend to be anachronistic. Such storiesfocus more often than not on the gardes-cercle, the men Henri Brunschwigdubbed ‘kings of the bush’ (rois de la brousse). That evocative phrase isfrequently associated with the commandants – and sometimes the chefs decanton – but the gardes were indeed an extension of the commandants’ powerinto the countryside.42 Before the 1940s, many villages rarely if ever wit-nessed the visit of a colonial administrator of any rank, and even the gardes-cercle were scarce. Yet the institutionalization of rural violence under theindigenat fell largely to the account of these men, known in parts of Mali asthe gardike or the murujantigiw (‘carriers of long knives’) for the swords theywore. The gardes became infamous, and stories swell around them: owners ofdogs tied them up in the bush with the wild animals at night in order to avoiddisturbing the sleep of gardes visiting their villages; gardes publicly strippedand flagellated men who were late to attend the state-run cotton market;gardes seeking taxes and fugitives would whip shrouded corpses to ensurethat the figures inside were dead and to humiliate the living.43 Whether suchstories represent anecdotes or testimonies, they vividly illustrate the com-mon perception that the gardes wielded an irrational power virtually withoutlimits. Yet they themselves were susceptible to the indigenat, as one drunkengarde discovered when he insulted an American missionary at a rural marketin 1944 and the commandant jailed him for 15 days.44

If the indigenat enabled sanctions on the margins of a bureaucratic state,it did so by concentrating power in the hands of its most essential actors,the commandants, who, as the ultimate ‘kings of the bush’, bore many ofthe characteristics of sovereigns. Commandants had the power to accuse,

40 For a defense of the latter practice, see Delavignette, Freedom. Delavignette trained ageneration of colonial administrators in his post as director of the Ecole Nationale de laFrance d’Outre-Mer in the 1930s and ’40s.

41 The case of the recalcitrant taxpayer cited above is an exception, present in thearchives because, almost certainly owing to a beating he received, he died in jail. Mitchellargues that such a relative absence of records is central to what he terms a ‘culture of fear’in the Egyptian countryside of the 1960s and 1970s: Mitchell, Rule, ch. 5.

42 Brunschwig, Noirs ; R. Colin, Kenedougou au crepescule de l’Afrique occidentale:memoires des annees cinquante (Paris, 2004), 200–4.

43 S. N. Konate, ‘Les chefs de canton et les gardes de cercle dans le systeme adminis-tratif francais au Soudan, 1900–1945’ (unpublished MA dissertation, Ecole NormaleSuperieure (Bamako), 1983). The son of a former garde, Konate based his dissertation oninterviews conducted in southern Mali.

44 Inspecteur des Affaires Administratives, M. Laine, Rapport no. 43/AA, 25 June1944, ANM 2D39FR.


condemn, and sanction in an instant with little oversight, and in the localcourts they sat in judgment over charges they had brought, thereby servingas both judge and prosecutor.45 For these men, in the approving words of anadministrator in Guinea, the indigenat served as ‘a procedure of intimi-dation’.46 Whether in the capital of a cercle or while engaged in ‘the art ofgoing on tour’47 in the bush with an escort of gardes, commandants – with fewexceptions – greatly prized the power that the indigenat gave them to exactswift and immediate sanctions. Indeed, the very speed with which it enabledthem to mete out punishment remained one of their key and most commonarguments in favor of the indigenat.48 They placed great emphasis on the factthat those they punished could be imprisoned on the same day, without ap-peal or reference to an administrative superior; such efficiency made theirpower appear unconditional.Colonial administrators frequently referred to the indigenat as a necessary

holdover from the period of conquest.49 They continued to use that metaphorof the conquest even as their ever-aleatory ability to exert political controlbecame increasingly uniform and subject to the rules and procedures ofbureaucratic governance rather than emanating, as many believed, from theirpersonal powers of command. This invocation of – even nostalgia for – amoment of conquest that by the 1920s very few of them could have knownfirsthand represented a form of resistance to a professionalized, future-oriented, and self-consciouslymodern faction thatwas increasingly influentialwithin the administration. The use of the metaphor suggested, of course, thattheir continued reliance on the indigenat was a function of the lack of ad-vancement of the populations that they sought to govern. Thus a form ofgovernment that administrators themselves characterized as exceptional andin some sense primitive co-existed awkwardly with slowly changing admin-istrative practices and rapidly evolving tools and technologies of colonialrule.For instance, from 1943 and for the first time, San’s commandant had a car.

Newly enabled to carry out multiple tours of inspection and inquiry,Commandant Gauthier took it out as many as three times a week in the firstmonths after it arrived. Tracking down rumors and checking on production,he came into much more frequent contact with the people he governed, and agreater number of them therefore wound up in jail.50 Demands for pro-duction were more stringent than ever before – certainly more aggressive

45 In criminal courts, they could impose the death penalty, subject to review by theGovernor.

46 Quoted in Young, African Colonial State, 155; see also W. Cohen, Rulers of Empire:The French Colonial Service in Africa (Stanford, 1971), 120.

47 Delavignette, Freedom, 42–8. See also F. Simonis, Le Commandant en tournee: uneadministration au contact des populations en Afrique noire coloniale (Paris, 2005).

48 Such rhetoric appeared as early as 1912: Maniere, ‘Code’, 209.49 Fraternite rejected that rhetorical sleight of hand: see ‘Supprimons la justice

indigene’, article in l’AOF, 8 March 1946, reprinted from Fraternite, 30 Jan. 1946, ANS17G168. Maniere adopts the metaphor of conquest, as well as finding it in his sources: see‘Code’, 17, 82, 91, 292.

50 Rapport de tournees du mois de Jan 1943, n.d. (Jan. 1943), no. 1, ANM 1E143FR.Gauthier was also a particularly unpopular commandant among the population of thecercle : interview with Bakari Kamian.

340 GREGORY MANN

than under Vichy (1940–42) – and before it broke down the new Peugeotenabled Gauthier and his agents to verify whether or not his instructionswere being followed to the letter.51 Along with the car came another increaseddemand: road maintenance. The corvee regime that had long relied on thelabor of those imprisoned under the indigenat intensified, and the long-run-ning struggle between the peasantry and the administration over building,repairing, and maintaining roads was waged with new ferocity. Soon thecommandant was going on tour simply to verify that the roads and tracks(pistes) were in good condition.52 In other words, the new means of rapidtransport did not result in greater transparency or administrative rationality(for instance, by taking offenders to court) ; instead, the technology enhancedthe ability of commandants to preserve and carry on practices that theyassociated with conquest.That ‘spirit of conquest’ coexisted with the extension of a bureaucratic

regime intended to replace it. Thus, in addition to events such as deaths incustody or the arrival of new technologies, sporadic record-keeping allowsfurther glimpses into the way in which the regime worked in practice, andinto this shadowy intersection of bureaucracy and sovereignty. Yet, althoughthe keeping of records on offenses and punishments was mandated within theadministration,53 in the interwar years its ‘men on the spot’ frequently re-jected what they saw as the extension of centralized bureaucratic power andan encroachment on their own personal authority. Many of them struggled toresist both their own subordination within the hierarchy of the colonial ad-ministration and the draw of what Robert Delavignette termed the ‘colonialsociety’ – European and bourgeois – which lured them away from ‘the col-ony’ that they sought to master.54 At stake, in either case, was the trans-formation of a much-prized form of personal power into its own rationalizedand bureaucratic shadow. As Isabelle Merle suggested, much of the effort at‘reform’ of the indigenat was therefore devoted to attempting to controlcommandants and other colonial agents.55 Yet because decisions repealedby governors and governors-general more often than not dealt with faitsaccomplis, reversals of the decisions of commandants did little for thosewho had already been jailed for their offenses and released;56 instead, they

51 Commandant Gauthier, Rapport de tournees du mois de Mai 1943, 30 May 1943, no.2, and agricultural agent Chollier, Rapport Agricole Mai 1943, 1 June 1943, ANM1E143FR. On administrative tours and the indigenat under Vichy, see R. Ginio, FrenchColonialism Unmasked: The Vichy Years in French West Africa (Lincoln, NE, 2006),28–30.

52 On administrators’ fascination with both the automobile and roads, see E. Alber,‘Motorization and colonial rule: two scandals in Dahomey, 1916’, Journal of AfricanCultural Studies, 15 (2002), 79–92. Delavignette was more ambivalent about the effects ofthe automobile on colonial government: Freedom, 42–3. On forced labor and road-building, see B. Fall, Le Travail force en Afrique Occidentale Francaise (1900–1946) (Paris,1993), ch. 6; see also B. Djibo, ‘Silence! On decolonise… ’: itineraire politique et syndicald’un militant africain (Paris, 1992), 22–3.

53 Cohen, Rulers, 68; Buell, Native Problem, I, 1016.54 On the distinction between the colony and colonial society, see Delavignette,

Freedom, ch. 2.55 Merle, ‘Retour’; see also Cohen, Rulers, 68; Saada, ‘Empire’.56 Buell, Native Problem, I, 1016–17.


represented attempts to assert central control that were effectively doomedto fail.The failure of central control can be seen in the phenomenon of the par-

ticular punishment known as contraint par corps fixe (‘bodily constraint’),which appears to have been practiced in multiple forms. Tribunals couldsentence common-law prisoners to serve part of their sentences bound. Onno authority other than their own, however, commandants also bound col-onial subjects, often in a painful sitting position, for a fixed period of time oruntil their taxes, fines, or debts had been paid off. Some inflicted this pun-ishment in combination with imprisonment or fines. In some instances, suchconstraint effectively represented a form of hostage-taking, by which thefamily of the person being constrained was compelled to pool its resources,or potentially to go into debt, to obtain his release. In 1934, the office of theGovernor of Soudan Francais had remonstrated with one of the colony’scommandants, insisting that constraint was intended to be imposed only bytribunals and under certain conditions, and solely to force the payments offines or debts.57 There was clearly no consensus on such limits. The tribunalof the cercle of Bamako sentenced people to be jailed and bound for offeringverbal opposition to military recruitment,58 and in San the commandant ex-panded upon the powers granted him by the indigenat – and not under thelaw – to have people bound for charges ranging from insubordination topreferring cowries over francs in a marriage payment.59

Given the intensity of the struggle for control that reform of the indigenatrepresented, it is no surprise that, in practice, the gamut of offenses sanc-tioned under it tended to expand continually, even as it contracted formally.What were people punished for? More than half of all recorded punishmentsunder the indigenat in the mid 1930s were related to taxation and laborrequisition,60 yet these were not the sole offenses leading to the exercise of theindigenat. Peasants could be jailed or sanctioned for neglecting any numberof orders, included planting too few peanuts, failing to cultivate castor-oil plants, growing too much pepper and selling it to African traders, oremptying reserve granaries.As one might expect, such coercion becamemore acute at moments of state

crisis. The war years, for example, were certainly not the most tranquil of thecolonial period, but they were unquestionably years in which taxation wasimportant. Yet hardly more than a fifth of the acts sanctioned under theindigenat in San from 1941 to 1944 were even loosely related to taxes (nor didall the punishments take the form of fines). Nearly as many related to refusalto obey the orders of colonial officials, ranging from gardes-cercle to thecommandant himself.61 Demonstrating ill will or refusing to respond to the

57 Bureau Politique, Soudan Francais, observations on ‘Tribunal du premier degrenotice des jugements rendus en matiere repressive pendant la mois d’aout 1934’, ANM2M239FR. See also GGAOF, Textes, 7.

58 Bamako, ‘Tribunal du premier degre, audience publique du 24 Oct. 1939’, ANM2N62FR; see also Cercle of Kita, ‘Extrait du registre d’ecrou concernant six detenussusceptibles d’etre transferes a la Prison de Kidal’, 1 June 1938, ANM 1F242FR.

59 San, ‘Punitions disciplinaires’, 1941 and 1943, ANM 2M170FR.60 DAPA, F. Rougier, ‘Note sur l’indigenat en AOF’, 5 Nov. 1936, unnumbered, ANS

17G84; see also Asiwaju, ‘Control’, 60–1.61 San, ‘Punitions Disciplinaires’, 1941–44, ANM 2M170FR.

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convocation of a canton chief or a garde regularly led to jail sentences andfines. Thus it would seem that in San in the early 1940s, at a moment whenextraction was acute, the indigenat was exercised to protect neither extrac-tion, in this case, nor ‘custom’ itself, as argued above, but the power of thestate, or at least of its commandants and his agents.Collective punishments, too, recalled the continuity of conquest and the

ongoing exceptional nature of the colonial state, as they were common in theAOF yet illegal under French law, which is built on the principle of indi-vidual sanction.62 In 1921, a commandant on tour in a rural canton had in-flicted identical penalties on as many as 15 men from one village at the sametime.63 In the 1940s, the severity of punishments increased: as an elderlyveteran would complain to one of the White Fathers in 1942, ‘TheFrench – the weaker they are, the more demanding they are [Les Francais,plus ils sont faibles, plus ils sont exigeants]. ’64 Interfering with military re-cruitment, for example, earned 31 men in one village the penalty of six daysof bondage, in addition to heavy individual fines.65 Other collective punish-ments were meted out for evading taxes, interfering with recruitment, orrefusing the orders of the administrators, canton chiefs, or gardes-cercle.66 Inthe 1940s, planting the wrong strand of cotton, or even hoeing a cotton fieldpoorly could result in sanctions inflected on a collectivity rather than anyindividual.67 Such collective punishments, however, relied on a centralproposition: that the population of a village or collectivity shared some uni-form legal or juridical status. There could be no indigenat without indigenes,or, more precisely, without colonial subjects. Yet the phenomenon of reformundermined that central proposition by introducing exemptions for in-dividuals and for social categories.

CATEGORY ERRORS

Given the amount of power invested in them through it, it is no surprise thatcommandants opposed with near unanimity efforts to reform the indigenatby extending exemptions from it, whether to particular individuals or toentire social categories of colonial subjects, such as women. Not only was theindigenat as a set of sanctions central to the day-to-day operations of colonialrule but, more abstractly, it also marked the boundary between the statusesof subject and citizen that provided its logic. Exemptions risked blurring thestark divisions between categories of people that lay at the core of the colonialsystem, and they would also eventually produce a heterogeneous spectrum ofpeople occupying distinct juridical categories – even if these were recognized

62 Merle, ‘Retour’, esp. 85.63 ‘Peines disciplinaires’, 2nd trimester, 1921, ANM 2M239FR.64 ‘Rapport du Tournee, Tioutiou et Mandiakuy’, 4–10 Dec. 1942, ANM 1E38FR.65 San, ‘Peines disciplinaires’, 1943, ANM 2M170FR.66 San, ‘Punitions disciplinaires’, 1941–44.67 In 1941, seven people paid 45 Frs a piece for that offense: San, ‘Punitions dis-

ciplinaires’, 1942, ANM 2M170FR. On the deep connection between cotton cultivationand state power, see R. L. Roberts, ‘The coercion of free markets: cotton, peasants, andthe colonial state in the French Soudan, 1924–1932’, in A. Isaacman and R. L. Roberts(eds.), Cotton, Colonialism, and Social History in Sub-Saharan Africa (Portsmouth, NH,1995), esp. 227.


in theory more often than in practice.68 Howwere commandants to distinguishbetween those whom they could punish summarily and those who could claimsome legal protection? How were they to impose collective punishments ongroups of people with distinct statuses? The self-interested pragmatism ofcommandants aside, the aspirations ofAfricanswith subject status, andnotablyevolues, caused the issue of exemptions to surface again and again, whetherpushed by dissidents or by reformers in Dahomey, Paris, and Dakar.69

In the words of the Minister of Colonies in 1924, such individual exemp-tions represented ‘a kind of … promotion to a superior social state’,70 oneusually offered – at least in principle – in exchange for service to the colonialstate. They were to be celebrated; years later, Dakar urged commandants todeliver newly created red booklets of exemption directly to their recipients inpublic ceremonies conducted ‘with a certain pomp’.71 Yet what did such apromotion entail? Neither citizenship nor anything like it, but rather theprivilege – for oneself and one’s wives and children – of being subject to‘ judicial ’ rather than ‘administrative repression’.72 The same offensesidentified in the indigenat – those which ‘only a native could commit’ – stillobtained, but the certificate of exemption obliged a commandant to bring hiscomplaints before the tribunal, over which, of course, he presided.Former soldiers (tirailleurs) had figured among the very first to be ex-

empted, in January 1918, and their collective exemption had sparked seriousdisagreement between different levels of the administration. Commandants inrural cercles howled that a too-liberal central administration had effectivelydisempowered them,73 while in 1920 the Governor-General, Martial Merlin,aware of the breach that the tirailleurs’ exemption had opened, began toponder the idea of abolishing the indigenat altogether in favor of police courtsfor ‘natives’ (tribunaux de simple police indigene). His project became a deadletter.74 Instead of abolition, an odd compromise seems to have emerged.The law exempting veterans from the sanctions of the indigenat graduallycame to be disregarded in practice,75 even as it was reaffirmed in 1924, when

68 On colonial difference, see P. Chatterjee, The Nation and its Fragments: Colonial andPostcolonial Histories (Princeton, 1993), 10, 16–24. On British anxiety over maintainingdistinctions within regimes of coercion, see Steven Pierce, ‘Punishment and the politicalbody: flogging and colonialism in northern Nigeria’, Interventions, 3 (2001), 206–21; andCrowder, Flogging.

69 On Dahomey, see Buell, Native Problem, I, 1017, citing Les Continents, ‘Quelquesrevendications dahomeennes’, I, 8 (1 Sept. 1924). See also DAPA, ‘Note pour M. leGGAOF, re. voeux emprimes par les populations du Dahomey a la mission parle-mentaire’, 28 Dec. 1937, no. 3106/AP/1, ANS 17G97; and Maniere, ‘Code’.

70 Minister of Colonies, ministerial circular, 20 Nov. 1924, no. 386, quoted in Buell,Native Problem, I, 1018.

71 DAPA, GGAOF, Circular to Lieutenant Governors [and to the administrator of the]Circonscription of Dakar, 15 Feb. 1935, no. 45 AP/2, ANS 17G168.

72 Rougier, ‘Note sur l’indigenat’.73 G. Mann, Native Sons: West African Veterans and France in the Twentieth Century

(Durham, NC, 2006), 70–2.74 M. Merlin, GGAOF to Minister of Colonies, n.d., unnumbered (draft) ; Procureur

General AOF to GGAOF, 24 April 1920, unnumbered; GGAOF, Circular, 22 May1920, no. 49; all from ANS 11D3/0039.

75 Commandant de Cercle (CdC) Koutiala, ‘Rapport Politique, 4’ trim., 1921’, ANMIE23FR.

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the ‘circle of exemption’ was widened to include chefs de canton, schoolgraduates, and licensed merchants, among a few other narrow social cat-egories.76 Following veterans’ exemption, the relationship between ‘nativestatus’ and categories or individuals would grow increasingly complex. Anentire spectrum of political and social statuses would eventually emergein relation to the indigenat, a mode of governance whose time had not yetpassed.77

In a series of decrees issued from 1929 to 1936 that applied at various timesto the different territories of the AOF, West African women and childrenyounger than 16 were excluded from the indigenat’s sanctions. One couldinterpret this reform to mean that women’s political integration preceded, orin the case of voting rights was simultaneous with, that of men who weresubjects.78 Women across the AOF only became immune from the summarysanctions associated with the indigenat (peines de simple police) in December1936, having at different times been exempted from corporal punishment,imprisonment, and finally fines.79 Yet their exemption was never absolute(and indeed applied only to the punishments, not the offenses themselves).Within a few years, Dakar responded to the demands of commandants bysuggesting that, for any action involving public hygiene, the production andconsumption of food, or the authority of an administrator’s convocation,women would once again face the threat of administrative sanctions.80 Thefollowing year saw another ‘derogation from the exemption’ of women: theycould now be fined for refusing to accept French currency, particularlybills.81

The waxing and waning of such exemptions caused confusion among ad-ministrators themselves, not least because many decrees were quite narrowlyapplicable to particular locales. In a flurry of paperwork, commandants andgovernors sought greater clarity – where could women be imprisoned, and

76 Asiwaju, ‘Control ’, 53; see also Buell, Native Problem, I, 1017.77 Far from being abolished, the indigenat regime was extended to the mandated

territory of Cameroun in 1924. It had been instituted in Togo in 1917: Buell, NativeProblem, II, 314, 379–92.

78 It is remarkable that such a major reform has garnered so very little attention fromhistorians. Brief mentions of this reform offer conflicting dates: 1924 in Conklin,Mission,310–11; cf. Buell, Native Problem, I, 1017; 1934 in Cohen, Rulers, 119; or, in somearchival documents, 1935, e.g., DAPA, HCAOF, 3 May 1941, no. 1197/AP/2, ANS17G97. For correct dates, see GGAOF to Minister of Colonies, 18 Dec. 1936, no. 1929,ANS 17G97; Rougier, ‘Note sur l’indigenat ’; GGAOF, T. L. Circular to Governors, 10Nov. 1942, no. 998, ANS 17G168. See also Maniere, ‘Code’, 371. On women in the AOFin this period, see G. Lydon, ‘Women, children and the Popular Front’s mission ofinquiry in French West Africa’, in T. Chafer and A. Sackur (eds.), French ColonialEmpire and the Popular Front (New York, 1999), 170–87; G. Lydon ‘The unraveling of aneglected source: a report on women in francophone Africa in the 1930s’, Cahiersd’Etudes Africaines, 37 (1997), 555–84; and M. Rodet, ‘Genre, coutume, et droit colonialau Soudan Francais (1918–1939) ’, Cahiers d’Etudes Africaines, 47 (2007), 583–602.

79 GGAOF to Minister of Colonies, 18 Dec. 1936. Note that a decree of 12 May 1934had exempted women in most, but not all, of the federation from the sanctions of theindigenat. 80 DAPA, HCAOF, 3 May 1941.

81 DAPA, ‘[Rapport] en Commission Permanente du Conseil de Gouvernement’, n.d.(document stamped 2 Nov. 1942), unnumbered, ANS 17G168; GGAOF, T. L.Circulaire to Governors, 10 Nov. 1942.


where could they only be fined? In which subdivisions of which particularcercles of Niger did the indigenat continue to apply, and to whom?82 Didthe indigenat apply to colonial subjects in Dakar and the other towns knownas the Four Communes? Even the local administration mistakenly believedthat it did not, and the metaphor of conquest could hardly be used to justifythe policing of a well-established colonial capital with an enfranchisedpopulation, but in fact the indigenat did apply to non-citizens there as else-where. It had simply never been put to use. Rather than either enforcingor abolishing the indigenat in Dakar, the city’s administrator suggestedthat there was some political advantage in maintaining its indeterminatestatus.83

Throughout the 1930s, as the granting of exemptions became morecommon, the logic of the indigenat became more convoluted, and the in-adequacies and inconsistencies of the entire system increasingly apparent.Other groups tried and failed to obtain recognition of their collective claimsto special status. African Christians, for instance, demanded exemption,based on the logic that as Christians they were no longer ‘native’. If theircivil status (statut personnel) in family law cases was no longer ‘customary’but ‘Christian’, and if they were no longer subject to the judgments ofchiefs, they argued, then their relationship with the administration shouldalso change.84 In spite of such skirmishes around categories of exemption,historians have more often focused their attention on the relationshipbetween individuals and the indigenat – or, more accurately, its inverse,citizenship.Although only a very small elite ever attained French citizenship – as op-

posed to acquiring it through birth in one of the Four Communes ofSenegal – most of those who did requested it in exchange for some particularservice they had rendered to the colonial state.85 The revision of 1924 hadallowed for the possibility that exceptional or ‘worthy’ individuals of in-digene status might be granted an exemption from ‘disciplinary punish-ments’, but such exemptions were slow in coming. A decade later, therhythm of exemptions would increase, reaching a tempo of 400–500 in-dividuals (and by extension their families) per year from 1934 to 1938.86 In acolonial federation of some 15,000,000 people – and bearing in mind that, byhis own estimate, some 4,200,000 continued to live under the unreformedcode of 1887 – Dakar’s Director of Political Affairs was rather optimistic inarguing that, at such a rate, ‘a significant part of the population’ would soonbe exempt.87 One can see the effects locally. In San in 1935, no one enjoyedthis type of exemption. In 1936, however, the commandant proposed ex-empting five men of particular use to the colonial administration – two werechefs de quartier (chiefs of a neighborhood or ward) in San, one was a scion ofone of the towns’ ruling families, one a loyalist in the Volta-Bani revolt of

82 See ‘Extrait du Rapport d’Inspection Coste du 1 fevrier 1938’, ANS 17G97.83 Administrateur en Chef des Colonies, Administrateur de la Circonscription de

Dakar et Dependances to GGAOF, DAPA, 14 Jan. 1937, no. 107 AG, ANS 17G97.84 Governor-General Brevie, ‘Les missions chretiennes et la societe indigene’, circular,

6 Feb. 1933, no. 37 AP/2, ANS 17G73v17.85 Coquery-Vidrovitch, ‘Nationalite ’.86 DAPA, Conseil de Gouvernement to GGAOF, 25 Nov. 1938, ANS 17G168.87 Rougier, ‘Note sur l’indigenat’.

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1915–16, and one man who had completed the pilgrimage.88 As far as therecords indicate, for the next ten years, until the abolition of the indigenat,those men were the only individuals to be so recognized in a cercle of some148,000 people. Thus, in the West African colonies of the ‘empire of law’, tobe subject to law was an exceptional achievement.89

REFORM

Like the modern prison,90 the indigenat always existed alongside the idea ofits reform. And like those whose status it described, the indigenat was alwayssubject to evolution.91 In 1924, a major revision to the regime diminished theseverity of punishments that could be exacted, but it notably excluded theareas of the AOF that were considered to be still in a ‘semi-barbarous state’ :these comprised almost the entire federation and certainly the vast majorityof its population.92 The same revision had begun to exempt categories ofpeople. From 1936 to 1938, the Popular Front scrutinized the indigenat onceagain, although a move to reconsider the code was already under way and hadprovoked the handful of exemptions discussed above. The Governor-General of the AOF and the Governor of Soudan sought the opinions of thecommandants, and the response of F. H. Troupeau, thenCommandant of San,merits quoting at length:

[At] the end of my career, I obviously will not change my opinion on the indigenat,which I have always considered an abuse of administrative authority. Any con-straint to liberty, and thus any prison sentence – however insignificant it might be,whatever the skin color of the suspect – should only be pronounced by a tribunal,and I would even say that it should be pronounced by a tribunal that is completelyseparated from the administration [pouvoir administratif], since no one can bejudge and litigant at the same time. Thus I am not only in favor of the abolitionpure and simple of the regime of the indigenat, but also for the reorganization of thecriminal tribunals [tribunaux repressifs, over which the commandant presided]. Andif I argue that one can make oneself obeyed without recourse to the regime of theindigenat, it is because I myself have never made use of it. It is true that I haverarely served as a Commandant de Cercle [but] … in 1930 … I made much the sameresponse when I was the administrator of the cercle of Fada (Haute Volta), where I

88 CdC San, ‘Etat nominatif des indigenes du cercle proposes en vue de beneficier desdispositions de l’article 5 du decret du 15 Novembre 1924 sur l’indigenat’, n.d. (1936),ANM 2M170FR. Governor, Soudan Francais (GSF) to GGAOF, DAPA, 29 Sept. 1936,no. 2078AP, ANS 17G79. On the Volta-Bani war, see Saul and Royer, West AfricanChallenge.

89 See also Shereikis, ‘Law’. 90 Foucault, Discipline.91 Maniere counted 94 texts regulating the indigenat in Dahomey from 1887 to 1946;

these included 15 decrees, 27 administrative orders, and 40 circulars for the AOF, inaddition to those particular to Dahomey: Maniere, ‘Code’, 13, n. 19. To these must beadded an enormous volume of correspondence between various levels of the adminis-tration seeking greater precision on the practice and theory of the indigenat.

92 Exempt from the reforms were the colonies of Haute-Volta, Mauritania, and Niger,most of the Soudan, Guinea, and Dahomey, and all but ten cercles of the Cote d’Ivoire. Inother words, Senegal was the only colony to experience reform across the entirety of theterritory. See Buell, Native Problem, I, 1019, n. 60.


was dealing with one of the most primitive and backwards populations of the[AOF] … I have no doubts on the subject whatsoever.93

Troupeau’s response was unique. Eight of his colleagues argued that theindigenat should not be reformed at all, while an equal number pressed formoderate reform.94 It is clear from Troupeau’s tone that he expected to findhimself in the minority. Few administrators of his time wrote frankly of‘color’ as an important dividing line in colonial society, at least not in officialcorrespondence. Not many more would have relished greater scrutiny of theway that they and their colleagues exercised power. Moreover, Troupeauraised the stakes of the inquiry considerably when he suggested the reform ofthe tribunaux repressifs by which the commandants sat in judgment on chargesthat they themselves brought.In spite of such reform-minded administrators, fundamental change

would be a long time coming. It is unclear whether the short-lived PopularFront regime had a great effect on the exercise of the indigenat, at least on theground. In an article on the Popular Front in Guinea, Michel Brot rec-ognized a decline in the frequency of incarceration between 1937 and 1940,but argued that this was an effect of good harvests and high prices for agri-cultural commodities: better able to pay their head taxes, fewer peoplewound up in prison.95 In San, on the other hand, the number of peopleimprisoned rose steadily, doubling twice in the late 1930s, including underthe reform-minded Troupeau and during the Popular Front.96 However,although people detained under the indigenat were housed in separate sec-tions of colonial jails,97 it is impossible, from available records, to disentangleprisoners sentenced under criminal law from those being punished under theindigenat.While San’s prisons were packed, in Paris and in Dakar further change was

on the horizon. In the last years of the Third Republic, administratorssought to refine a colonial practice that would become more repressive beforecoming to an end. The Popular Front’s Governor-General in Dakar, Marcelde Coppet, moved to reform the indigenat gradually and, in consultation withhis subordinates across the AOF, by changing the status of particular terri-tories of the AOF and by accelerating the extension of individual exemp-tions. After the fall of the Popular Front, the advent of the Second WorldWar re-opened the question of whether or not categories of people would beexempted. A decree of 19 April 1939 assigned veterans and ex-tirailleurs to

93 F. H. Troupeau, CdC San to Lieutenant-Governor, Soudan Francaise, 14 March1937, no. 107, Response to note no. 69/AP, 27 Jan. 1937 and circular of GGAOF, no. 777AP/2, ANM 2M170FR.

94 F. Rougier, GSF, ‘Circulaire’, 17 June 1937, no. 1288 AP, ANM 1E002FR. Othersources state that support for the indigenat was unanimous, meaning that it was wide-spread indeed: see Cohen, Rulers, 119–20.

95 M. Brot, ‘Did the Popular Front have any significant impact in Guinee?’, in Chaferand Sackur, French Colonial Empire, 188–202.

96 ANM 2M106FR. Note that available figures represent the number of people held atthe end of each year, and not the total number of people incarcerated over its course.

97 Cercle of Sikasso, ‘Rapport annuel sur la justice indigene, annee 1941’, ANM2M170FR; F. Bernault, ‘The politics of enclosure in colonial and post-colonial Africa’,in F. Bernault (ed.), A History of Prison and Confinement in Africa (Portsmouth, NH,2003), 19–20.

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French criminal courts, which could exclusively apply the French penal codeand metropolitan regulations. Some veterans applauded the 1939 decree,98

while commandants were hardly enthusiastic.99 By 1941, ex-tirailleurs onceagain lost their particular legal status, enabling the heightened repression ofthe Vichy and Free French years.100

The idea that ex-tirailleurs and others who had served France should havesome kind of particular legal status remained an important one throughoutthe war. At the imperial conference at Brazzaville in January and February1944, General Charles de Gaulle spoke of creating a new category of privi-leged colonial demi-citizens who would enjoy a political status somewherebetween that of the subject and that of the citizen. Although no immediateaction was taken, two years later and in the aftermath of the war, the varietyof forms of political belonging in the French empire had expanded dra-matically. A new electorate included veterans and members of certain otherselect categories; its ranks would expand considerably over the next dec-ade.101 Under the Fourth Republic, exemptions of individuals or social cat-egories suddenly became moot as former colonial subjects saw that statusabolished in favor of the extension of an ill-defined citizenship in the FrenchUnion.

ABOLITION

If, in 1946, France was offering a new bargain to its imperial subjects andAfrican politicians in Paris were working to sweeten its terms, commandantsin West Africa were far from being uniformly supportive of the new regime.Reforms enacted in the months before the final abolition of the indigenatwere simply ignored by some local administrators, who continued to detainpeople and inflict heavy fines in spite of ministerial orders to the contrary.102

In San, the commandant’s adjoint (the deputy or petit commandant) undertooka tour to the cercle’s rural markets to explain the new political arrangementand its meaning, but he did not make explicit one of the most significantchanges, the end of the indigenat. Neither, of course, did he point out thattwo of the key provisions of the new system – the abolition of the indigenatand of forced labor – were not simply granted by France, but fought for byAfrican parliamentarians.103

98 ‘Les anciens combattants noirs d’AOF manifestent leur attachement a la France’,Journal de Rouen, 1 May 1939, Centre des Archives d’Outre-Mer (Aix-en-Provence,France), Agence de la France d’Outre-Mer (Agefom), 389 13/b.

99 R. Cazenave, CdC San, ‘Rapport annuel sur la fonctionnement de la justice in-digene, 1939’, 29 Jan. 1940, ANM 2M106FR. See also his ‘Rapport annuel’ for 1940, 31Dec. 1940, ANM 2M106FR; Mann, Native Sons, 111–16.

100 R. Cazenave, CdC San, ‘Rapport annuel sur la fonctionnement de la justice in-digene, 1941’, 16 Jan. 1942, ANM 2M106FR.

101 By 1951, these would include civil servants, religious leaders, those literate inFrench or Arabic, members of the Chambers of Commerce, and mothers of two children:V. Thompson and R. Adloff, French West Africa (Stanford, 1957), 58.

102 De Benoist, L’Afrique, 52–3.103 Adjoint Mader, ‘Rapport de tournee’, 21 Oct. 1946, ANM 1E38FR. On texts

abolishing the indigenat, see n. 11 above. A law of 11 April 1946, known as the ‘LoiHouphouet-Boigny’, abolished forced labor. On its political impact, see F. Cooper,‘Conditions analogous to slavery: imperialism and free labor ideology in Africa’, in


Such a subterfuge was not available to the feared Governor EdmondLouveau two years later. When he toured the towns of southern Mali toexplain the new constitution of the Fourth Republic and the French Union,he was accompanied by the two key leaders of the anti-colonial RDA party,Mamadou Konate of Soudan Francais and Felix Houphouet-Boigny of theCote d’Ivoire. Gathering crowds of up to 3,000 people in early morning,open-air marketplaces, Louveau used blunt language to illustrate the roles ofthe parliamentarians – who made law – and the role of the adminis-tration – which applied it. The contortions of his speech reveal the confusionof authority engendered by its multiplication under the new constitution, theabsence of a shared understanding about what law meant, and, most of all,the profound transformation in political power caused by the abolition of theindigenat :

I’m going to explain to you how the French constitution works …What I amsaying … is not politics. The administration is not political. We are here to applythe law and the law is the same for everyone: all French citizens, they [Konate andHouphouet-Boigny] and I alike, are equal before the law; whatever their politicalparty or their skin color, all French citizens are equal before the law. It’s the lawthat creates custom, it’s the law that commands everyone. The law is made in Parisby bringing together all the deputies from here and from the metropole [and from]wherever the French flag flies, and thus everyone is submitted to it …If the law is broken, people are brought before the judicial system [la Justice].

The judge does not take orders from the deputies or from the governor, he makeshis decisions according to the law and following his own judgment …In sum, the deputies … make the custom, which is the law, and then only the

government has the power to apply it, and the only representative of the govern-ment here is the administrator. The Chamber of Deputies is like the Council ofNotables, and the Administrator is like the Chef de canton.Do you understand?104

Apparently the answer to Louveau’s question was ‘no’. What Louveauand Clement hoped to get across in their windy speeches, people in Soudaninterpretedwith thousands of individual acts of rural rebellion, demonstratingthat the balance of power among the new political parties, the administration,the chieftaincy, the judiciary, and themselves was not at all clear.105 Troubledadministrators – particularly those of the ‘old school’ – then set out to provethat they remained in command, and that imperial reform did not necessarilymean a change in everyday practice in the colonies.Formulated in Paris and Dakar, the abolition of labor requisitions and the

end of the indigenat did not have immediate effect in Soudan. The gapbroadened between colonial practice and imperial theory, seen here in the

F. Cooper, T. Holt, and R. Scott, Beyond Slavery: Explorations Of Race, Labor, andCitizenship in Postemancipation Societies (Chapel Hill, NC, 2000). On the context ofMader’s tour, see Mann, Native Sons, 119–21.

104 ‘Rapports de tournee du Gouverneur Louveau, Tournee Sud et sud-est, Nov.1948’, ANM 1E94FR. This particular speech was actually delivered in Dioila on 20February 1948. The text is presented as being ‘the literal translation from the shorthand’.

105 See for example, Mader, ‘Rapport de tournee’ ; CdC San, ‘Rapport sur la justice,annee 1947’, 28 Feb. 1948, ANM 2M106FR; G. Mann, ‘Fetishizing religion: AllahKoura and French ‘‘Islamic policy’’ in late colonial French Soudan’, Journal of AfricanHistory, 44 (2003), 263–82.

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form of a spectrum of political statuses whose continuing expansion had beenreversed. The end of the indigenat meant a new uniformity in political statuswithin and between West African communities. But neither its demise northe abolition of forced labor meant the end of coercion and arbitrary exac-tions or the advent of an empire of law.106 In San, the majority of the ad-ministration’s buildings were constructed in 1947 using forced labor,immediately after the indigenat’s abolition and in the lag before that law’sultimate effect.107 The man responsible for that construction, Rocca Serra,was the same commandant who, while posted to Ke-Macina, had peopleslapping the water at night to quiet the frogs. Stricken with a liver cancer thatwould soon be fatal, he seemed to regard the end of the indigenat as a problemto be overcome. His successors and his aggressive deputy, Clement, wouldfight a long and bitter battle against the US-RDA and its supporters forsupremacy in the town of San and its hinterland, while Rocca Serra died inBamako. It would be too much to say that the death of one commandantrepresented the passing of an old order – and Rocca Serra had softened sincehis days in Ke-Macina108 – but in his eyes, and those of many of his peers, theabolition of the indigenat represented an abdication of authority. It in-troduced a distinction between administrative and judiciary authority, which

the African has not understood … Seeing that the power to sanction no longerbelongs to the man who had the power to command, he has concluded that auth-ority itself is weakened. Thus the expression fanga bana, ‘authority no longer ex-ists’, [in which] … the power to command is associated with the power topunish.109

With the end of the indigenat, a long period in which power emanated froma central figure, the commandant, rather than from laws or institutions – aperiod of virtually pre-modern sovereignty in colonial rule – came to aclose. From that moment, the gardes also witnessed a decline in their coercivepower. Interpreters, who in many cercles maintained the prison registriesthat would allow them to control the duration of a subject’s detention, lostinfluence as well.110 Clement’s generation of administrators had to findother ways to pursue their administrative and political objectives. They en-countered a new scenario, a shift to a system in which a government ofwide aspirations generated an entire matrix of rules, decrees, and regulations.No longer could the commandant, in the words of a long-time colonial clerk,simply reach for his long-form notebook, sign a slip of paper to be tornfrom it, and send anyone (‘a functionary or anyone else! ’) to prison fora fortnight, after which the unlucky prisoner might be told, ‘this was awarning’.111 If governmental rationality – or a regime of ‘governmentality’

106 On labor, see Fall, Travail force, 279–90.107 Interview with Gaoussou ‘RDA’ Konate, San, 24 March 1999; ‘Rapport de tour-

nee du Gouverneur [Louveau] du 19 au 25 fevrier 1947’, and ‘Rapport de tournee duGouverneur [Louveau] juillet 1948’, ANM 1E094FR.

108 Interview with Bakari Kamian; interview with Moussa Doumbia, San, 27 July2002. 109 Rocca Serra, ‘Rapport sur la justice ’.

110 E.g., Cercle of Sikasso, ‘Rapport annuel sur la justice indigene’.111 Interviews with Amadou Thera, San, 2 July 1998 and 1 Aug. 1998. Thera himself

became a commandant in post-colonial Mali ; the very term ‘commandant ’ remained inofficial use in Mali until quite recently, when ‘prefet ’ (‘prefect ’) replaced it.


seeking to regulate the conditions of life of populations – ever properly arosein French West Africa, it did so in this period after the end of the indigenatand not before.112

CONCLUSION

It is sorely tempting to connect the practices of rule enabled by the indigenatand the kind of arbitrary police powers exercised by commandants and gardes-cercle to the type of authoritarianism and small-scale government violencethat has afflicted too many African states since independence.113 Indeed, it ishard not to see traces of colonial governance – particularly a predilection foremphasizing individual authority over legal institutions – in any number ofthe newly independent regimes of the 1960s and ‘70s and their successors.The indigenat gave legal standing to the local despotisms of colonial com-mandants and created a culture of commandement – and fear – that continuedto inflect post-colonial African political culture and relations betweencitizens and agents of the new states.114 However, the analytical leap from theindigenat to the often seemingly arbitrary violence of some African post-colonial states – or to the rise of military regimes115 – is a perilous one forseveral reasons. Not least of these is the fact that colonial violence enforceda certain kind of exclusion, that of the ‘native’ who would remain a subject(or who had not yet achieved exemption). Post-colonial violence and threatsof violence, on the other hand, were frequently (and paradoxically) designedto force participation in new political communities dubbed republics, whichwere grounded at least rhetorically in emerging principles of citizenship andequality.The true significance of the indigenat can be fully captured neither by the

everyday ‘intimidation’ it enabled – as vital as that is for understanding thehistory of colonial rule – nor by the development of a set of reforms and anevolving spectrum of political memberships around it – even if these mayhave engendered aleatory legal practices and a complex multiplicity ofpolitical statuses that post-colonial governments often perpetuated.116

The indigenat was at the very core of the exercise of colonial power in theAOF. Within the administration, it enabled the fiction that institutions andprocedures prevailed over individuals and practices – that administrativecapitals controlled commandants and their agents. Its very existence, ever

112 Here my interpretation differs from those of Saada, ‘Empire’ ; Wilder, FrenchImperial Nation-state ; and Maniere, ‘Code’. Drawing on Foucault’s Discipline, ratherthan on his work on governmentality, Merle and Maniere argue that the indigenat en-gendered a particularly Foucaultian form of power in the French colonies : Merle, ‘De la‘‘ legalisation’’ ’ ; Maniere, ‘Code’. I find this argument difficult to accept: the indigenatwas not so subtle a regime as to inculcate an internalized discipline or to serve as aninstrument of ‘micropower’. On governmentality, see M. Foucault, ‘Governmentality’,in G. Burchell, C. Gordon, and P. Miller (eds.), The Foucault Effect: Studies inGovernmentality (Chicago, 1991), 87–104.

113 Here Mamdani (Citizen) and Mbembe (Postcolony, ch. 1, esp. 25, 31–2) agree.114 Mbembe, Postcolony, ch. 3; see also I. Ly, Toiles d’araignees (roman) (Paris, 1982).115 Maniere, ‘Code’, 432.116 See Dao Rokiatou Coulibaly, Amnistie et grace amnistiante: recueil de textes de la

Republique du Mali de la justice indigene a nos jours (Bamako, 1996); Mamdani, Citizen.

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entwined with its own reform, allowed the colonial state to practice a formof government grounded in difference and coercion while maintaining a re-publican rhetoric of assimilation and eventual inclusion. For much of thecolonial period, and indeed beyond it, those two bright promises attractedthe gaze of colonial elites, anti-colonial activists, and historical analysts alike.The ‘empire of law’ did the same. Meanwhile, like a black hole, the indigenatgenerated obscurity and ordered the space around it.


Gregory Mann - What Was the Indigenat

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