REPRESENTATION, STRUCTURE AND AGENCY: DIVORCE IN THE FRENCH SOUDAN DURING THE EARLY TWENTIETH CENTURY.

ON 5 October 1905, Baia Bari of Gassin village went before the tribunal de province of Segu seeking a divorce from her husband, Tiemoko Boare of Koila. Both Baia Bari and Tiemoko Boare were Muslims. Baia Bari claimed that Tiemoko Boare had mistreated her and that she was prepared to return the bridewealth. In addition, Baia Bari sought the return of 27,000 cowries she claimed Tiemoko Boare had taken from her, although she did not present any 'proof'. Tiemoko Boare agreed to the divorce but denied having taken the money. The court pronounced the divorce and called for Tiemoko Boare to recover the bridewealth he and his kin had provided to Baia Bari's kin. The court dismissed Baia Ban's claim for the return of 27,000 cowries because she had failed to produce evidence of the alleged 'loan'. Neither Baia Ban nor Tiemoko Boare appealed the court's verdict. [1]

How Baia Bari came to bring suit for divorce against her husband for mistreatment and how the provincial court, presided over by the leading African notables of Segu, saw fit to intervene in the domestic affairs of the Boare household is the subject of this article. The data provided in the 'Register of Civil and Commercial Judgements Rendered by the Provincial Court of Segu during the Third Quarter of 1905' are not detailed enough for us to 'hear' Baia Bari's complaints about marital mistreatment. Nor does the register tell us anything about how the members of the court understood the evidence of mistreatment, which they accepted, and Baia Ban's claim for the return of 27,000 cowries, which they rejected. Despite the sparse annotation of this case, Baia Bari's legal action raises at least two questions. First, from where did the provincial court 'receive' the authority to intervene in the domestic affairs of the Boare household? Second, why did Baia Bari turn to the provincial court to seek the dissolution of her marriage? [2]

In November 1903, the governor-general of French West Africa enacted a new legal code which provided the blueprint for two parallel systems of justice: one for Frenchmen and Africans privileged to bring their cases before a 'metropolitan' system of courts; the other for the vast majority of Africans, whose grievances would be heard before African 'magistrates' applying 'customary' law. [3] Court records, especially those concerning ordinary disputes over inheritance, divorce, property and contract, are a potentially vast source of evidence on everyday life and social change. But court records are not transparently useful documents for social historians. Historians must learn how these court records were created, how the act of recording shaped the nature of the grievance presented, how African litigants saw these new courts, and how they adapted their grievances to fit what the new courts could hear. [4] This study is particularly interested in how colonial institutions -- such as the new courts that came in to existence in 1905 -- contributed to changes in the landscapes of power and authority in Africa and how Africans negotiated these new terrains. In using the new courts, women not only acted in their interests, but forced subsequent changes in the landscapes of power in the French Soudan, including French representations of African marriages and the authority of fathers and husbands.

LANDSCAPES OF POWER

By using a term for a physical feature -- landscape -- to describe the context for studying asymmetrical social relations, this article portrays power as having concrete qualities. To traverse a 'landscape' requires at least two actions: first, it requires intentionality. A person who seeks to move from point A to point B must prepare both physically and cognitively. [5] These preparations can be either routine, such as going to the market or the field, or strategic in the sense of anticipating new outcomes or benefits. And second, it requires action. A person must actually set out to accomplish the goals she or he has defined. Intentionality and action do not preclude unanticipated consequences. Indeed, unanticipated consequences are part of the reflective processes of human learning. Thus, linking 'landscape' to the action of 'traversing' provides readers with a sense that the men and women of the French Soudan actively engaged with the world in which they lived, and whose actions shaped the meanings of the ir experience. This article's concern with agency flows from this sense of active engagement with the world and, following Giddens, refers to the 'capability of doing things in the first place'.

To be able to 'act otherwise' means being able to intervene in the world, or to refrain from such intervention, with the effect of influencing a specific process or state of affairs. This presumes that to be an agent is to be able to deploy (chronically, in the flow of daily life) a range of causal powers, including that of influencing those deployed by others. [6]

The term 'landscapes of power' also suggests the uneven nature of the terrain that men and women traversed in order to accomplish their goals. A landscape of power differs from its physical counterpart in terms of historical change. Historians can 'measure' changes to the landscapes of power in eventful time, and not merely according to natural or geological time. [7] The landscapes of power during the three or four decades of transition from the late precolonial to early colonial Africa changed very rapidly. Established forms of power and authority were often eroded, only to be replaced by new or re-constituted forms established first by Africans responding to the crises associated with the end of the trans-Atlantic slave trade and then by the practices and policies of colonial officials. [8] During this period, Africans also tested the limits of power, sometimes unleashing ferocious efforts to re-assert the power of those being challenged, often eroding power in the process, and sometimes merely slipping t hrough the cracks opened in the landscapes of power in the aftermath of colonial conquest. [9] The year 1905 stands as one of these moments of accelerated change: this was the year in which thousands of slaves throughout the French Soudan began to leave their masters and by so doing began the process of ending slavery. [10] This was also the year when French officials established native courts designed to channel African litigants into new institutions for dispute resolution. The end of slavery and the linked transformations set in motion by slaves' actions and the establishment of new courts altered the landscapes of power in the French Soudan and structured power in new ways. Landscapes of power thus contain physical institutions such as chieftaincy, heads of households and courts as well as social and cultural practice such as kinship, marriage, slavery, labor, leisure, wealth and authority.

These institutions and practices contributed to the structures of everyday life, which are the product of recursive human engagement with the world that establish both 'sets of rules and resources'. [11] To engage with the world requires cognition and reflection. People produce history through both words and deeds. [12] Representations of landscapes of power thus have at least two qualities central to the argument presented here. First, representations are intellectual constructions, products of perception and cognition. Perceptions and cognition are unstable in time and over time, reflecting ongoing struggles to shape meaning and experience. And second, as social constructions, representations have significant institutional consequences. They actually influence the structure and performance of institutions and the ways people use them. [13] This article thus argues that representations have distinctive histories, but that without attention to how humans act on them or in spite of them, representations are h ollow explanations for historical change.

Agency, structure, and representation are germane to the study of colonial courts in the French Soudan because these courts became part of the new landscapes of power and authority that resulted from the encounter between French colonialism and dynamic local processes of change predating conquest. The construction of courts for African subjects took place within the context of intersecting and contradictory forces. Between 1890 and 1903 these included a significant struggle between different models of colonialism, the predominance of lawyers within the middle and senior administration of the Third Republic, the willingness of civilian administrators to tame French soldiers by imposing a 'rule of law' based upon a cognitive grid of metropolitan principles of dispute settlement, and a willingness to respect 'custom' assumed to be central to the solidity of pre-modern African societies. [14] The colonial courts of 1905 were also constructed against the backdrop of the end of slavery, changes in access to resourc es and challenges to the authority of household heads and chiefs.

When he took office in 1902, Governor-General Ernest Roume pushed for the rapid conclusion of the commission charged with the amalgamation and normalization of justice in French West Africa. Roume's concern about normalizing the colonial legal system was based upon judicial anomalies between metropolitan design and legal practice in the colonies, and upon political struggles centered around competing models of colonialism. The decree of 10 November 1903 established a federation-wide legal system. The first courts for African subjects in the Soudan were up and running in the spring of 1905.

Almost immediately, the French officials charged with supervising these new native courts were confronted by African women seeking divorce. [15] The Bamako administrator wrote in third quarter of 1906, just one year after the new courts were established, that 'the incidence of divorce cases is slightly less than last quarter, but nonetheless very frequent. It is almost always the woman who brings the request for divorce before the provincial court'. [16] The Gumbu administrator in 1906 echoed his Bamako counterpart when he wrote that 'nearly all of the grievances brought before the provincial court during the course of this quarter concerned divorce.' [17] Women seeking divorce continued to preoccupy the native courts as late as the First World War. The Mopti administrator wrote in 1911 that 'the principal category of civil process [in the district] are the divorces; many women come forward to demand the rupture of their marriages'. [18]

Faced with the incidence of women seeking divorce through these new courts, administrators were forced to explain why women were seeking divorce. Some reports identified the 'poor treatment women receive' and physical abuse. Others described cases where wives were abandoned by their husbands. [19] French administrators began to construct a model of African families as inherently unstable owing to the lack of women's volition in marriage and the status of African women as beasts of burden, commodities and exploited workers. Drawing upon recent changes in French family law, many colonial officials were inclined to listen to women's grievances and to act favorably in response to their requests for divorce. [20]

Administrators were also concerned that the incidence of divorce both reflected and contributed to 'familial anarchy'. [21] The Gumbu administrator attributed the incidence of divorce to the 'weak bonds attaching the native woman to her new family'. [22] Linking women seeking divorce to the organization of the African family and to marriage practices, French district administrators developed components of a discourse about African women. [23] The high incidence of divorce, …