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Community Values, Domestic Tranquility, and Customary Law in Upper Volta

Published online by Cambridge University Press:  11 November 2008

Carol Bohmer
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Extract

The theme of this article is the decline of customary law in Upper Volta where, like most countries in Africa, customary courts operate side by side with the modern, ex-colonial legal system.1 My study of Le Tribunal de Premier Instance in Bobodioulasso suggests that customary courts may not in fact apply customary law. An examination of the criteria and the process by which decisions are reached here may help us to gain an insight into the function the Court serves for the community.

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Articles
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The Journal of Modern African Studies , Volume 16 , Issue 2 , June 1978 , pp. 295 - 310
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Copyright © Cambridge University Press 1978

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References

page 295 note 1 Salacuse, Jeswald W., An Introduction to Law in French-Speaking Africa, Vol. I, Africa South of the Sahara (Charlottesville, 1969), p. 260.Google Scholar

page 295 note 2 A recent estimate puts the population of Bobodioulasso at 118,000; Rapport politique (Bobodioulasso, 1973), p. 9. The Atlas de la Haute Volta (Paris, 1975), p. 26, gives the figure as 102,000.

page 295 note 3 The 11 ethnic groups which are represented by 1,700 or more are as follows: Bobo-Fings (by far the most populous), Toussians, Samblas, Tiefés, Bobodioulas, Dioulas, Peuhls, Vigués, Maricas, Mossi (the major group of Upper Volta), and Bobo-Oulés. Others represented in smaller numbers are: Dafings, Senoufo, Samogos, Gourounsis, Niéniégués, Siamons, Gouins, Dagaris, Maliens (presumably Bambara), Nanergués, Turcas, Dogosses, and Lobis. Rapport politique, p. 6, also noted those with unspecified ethnic identity, classified simply as ‘Divers’.

page 295 note 4 Ester Boserup points out that the population in the 28 largest cities in Africa increased by no less than 5 per cent annually between 1948–60: Woman's Role in Economic Development (London, 1970), p. 207. See also Gregory, J., ‘Migration in Upper Volta’, in African Urban Notes (East Lansing), 44, 1971, p. 6.Google Scholar

page 295 note 5 The religious breakdown given in Rapport politique, p. 9, is as follows: Animists, 69,099; Muslims, 41,074; Catholics, 7,782; and Protestants, 187.

page 296 note 1 See, for example, Allott, A. N., Epstein, A. L., and Gluckman, M., ‘Introduction’, in Gluckman, Max (ed.), Ideas and Procedures in African Customary Law (London, 1969), p. 1.Google Scholar

page 296 note 2 Ibid. pp. 9–50.

page 296 note 3 See, for example, Elias, T. O., The Nature of African Customary Law (London, 1956),Google Scholar especially chs. III and IV, and Allott, Antony, New Essays in African Law (London, 1970).Google Scholar As Elias points out on p. 29: ‘The usual practice of coupling the two words together in the expression “African (or Native) law and custom” should not be allowed to mislead one into thinking that law and custom are synonymous. They are two quite distinct concepts in African, no less than in English, or any other system of law’.

page 296 note 4 According to Lloyd Fallers, ‘African customary law is an excellent example of what Max Weber called “substantive legal rationality”. Decisions are reached by judges on the basis of an implicit body of normative rules which may be highly consistent internally, but these rules are very seldom made explicit and formally manipulated in the decisions that are rendered’; ‘Customary Law in the New African States’, in Baade, H. W. and Everett, R. O. (eds.), African Law: new law for new nations (New York, 1963), p. 81.Google Scholar

page 296 note 5 See, for example, Cotran, Eugene, ‘Nigeria: the Matrimonial Causes Decree, 1970’, in Journal of African Law (London), 40–58, Spring 1972, p. 16,Google Scholar and E. Abitbul, ‘La Famille conjugale et le droit nouveau du mariage en Côte d'Ivoire’, in ibid. 141, 1966, p. 10.

page 296 note 6 See, for example, D. V. Cowen, ‘African Legal Studies — a Survey of the Field and the Role of the United States’, in Baade and Everett (eds.), op. cit. p. 10.

page 297 note 1 They are also sceptical about how widely such laws are adhered to, and accordingly how useful a function they serve. One informant cited the example of the Ivory Coast which outlawed polygamy recently. The result was apparently that husbands simply took one legal wife and the others were left in the unprotected position of mistress. Interview with M Benoit, President du Tribunal de Premier Instance, Ouagadougou.

page 297 note 2 According to Elias, op. cit. pp. 6–7: ‘Almost all African colonial ordinances provide that customary law should primarily apply…in all matters relating to marriage, land tenure, inheritance, succession, testamentary dispositions’. Land tenure matters are handled by Le Tribunal de Deuxième Instance in Upper Volta, which is also a customary court.

page 297 note 3 For a more detailed discussion of the court system of Upper Volta, see Salacuse, op. cit. pp. 257–62.

page 297 note 4 Interview with Jean Baptiste Traore Issa, the sous-préfet of Bobodioulasso, who was responsible for suggesting appropriate elders for these duties.

page 298 note 1 See, for example, Allot, Epstein, and Gluckman, loc. cit. p. 23, for a discussion of the informality of African courts, and their ability to provide legal advice.

page 298 note 2 The reliability and extent of written court records in Africa obviously varies, depending inter alia on the dedication and skill of the clerk, or a particular system of record-keeping set up by the judicial administration. See, for example, White, C. M. N., ‘Matrimonial Cases in the Local Courts of Zambia’, in Journal of African Law, 251, Autumn, 1975 p. 15,Google Scholar and S. Roberts, ‘The Settlement of Family Disputes in the Kgatla Customary Courts: some new approaches’, in ibid. 60, Spring 1970, p. 15.

page 298 note 3 The President Judge was more interested in remembering if he had heard a case in the event of an appeal, rather than in providing either himself or his successors with any information for future similar cases.

page 298 note 4 The assumed knowledge of the assessors on such matters was, of course, one of the reasons they were selected: ‘Dependant, las vrais connaisseurs de Ia Coutume était aussi peu nombreaux que si elle eût été ésotérique’; Poirier, J., ‘L'Avenir du droit coutumier négroafricain’, in The Future of Customay Law in Africa (Amsterdam, 1956), p. 158.Google Scholar

page 298 note 5 The reliance on previous decisions is said to be more widespread in those societies which have a regular system of court officials, because they can partly compensate for the lack of written records by their extensive memory of family histories, previous decisions, and social norms. Cf. Elias, op. cit. p. 258.

page 299 note 1 Some observers deny that previous decisions are used for their precedential value, and consider that at most they are consulted as a guide to determine the nature of established custom. However, according to Elias, op. cit. pp. 256—8, African judges do pay at least some heed to the precedential significance of the decisions with which they are familiar. Cf. for example, M. M. Green, in her discussion of a case argued by the Ibo of Umieke Agbaga: ‘Her suggestion was hotly discussed, both sides in the usual Ibo fashion quoting many other cases as precedents in support of their own points.’ Ibo Village Affairs (London, 1948), p. 204. Nothing like this took place in the Court observed in Bobodioulasso.

page 299 note 2 Elias, op. cit. p. 258.

page 299 note 3 Elsewhere in Africa, notably the anglophone countries, this process of codification has begun. See, for example, Lewin, Julius, Studies in African Native Law (Oxford, 1947), ch. I,CrossRefGoogle Scholar and Cotran, Eugene, The Law of Marriage and Divorce (London, 1968),Google Scholar which deals with family law in Kenya, and is Vol. I in the Restatement of African Law series.

page 299 note 4 The only published study dealing specifically with ethnic law is that by Pageard, R., Le Droit privé des Mossi: tradition et évolution (Paris and Ouagadougou, 1969).Google Scholar I was never able to come across a copy in Bobodioulasso, an indication that it could not have been consulted by the Court, even if its existence had been known, which it was not.

page 300 note 1 As J. N. D. Anderson points out: ‘Efforts to reconcile customary law with Islamic doctrine differ widely from country to country or from community to community; in other words, the constituent elements in the amalgam of Islamic and customary law vary greatly’; ‘The Adaptation of Muslim Law in Sub-Saharan Africa’, in Kuper, Hilda and Kuper, Leo (eds.), African Law: adaptation and development (Berkeley and Los Angeles, 1965), p. 154.Google Scholar Elsewhere Anderson gives an example of a situation where customary law has overridden ethnic law: ‘When a woman is dissatisfied with her marriage, and wants a divorce, customary law in fact prevails over the strict requirements of Maliki law even in the most rigidly Muslim areas in Northern Nigeria’; ‘Islamic Law in Africa’, in Anderson, J. N. D. (ed.), Changing Law in Developing Countries (London, 1963).Google Scholar

page 300 note 2 This assessor was related to the parties, and was expected to be able to provide relevant information to clarify some confusing issues.

page 300 note 3 According to Rapport politique, p. 6, there were only 1,700 Maricas in the area.

page 301 note 1 This mandate was not adhered to in several ways: the assessors would amble in and out during a session of the Court, and sometimes more than two were present (even as many as six), so it was obvious that they did not only sit during their one month's assignment.

page 301 note 2 Much of the data relied upon come from manuscripts, often written by missionaries who spent time in the area. I would like to thank Père Gilles de Rasilly of the Catholic Mission in Bobodioulasso for making this unpublished material available to me. M Benoit, President du Tribunal de Premier Instance, Ougadougou, said: ‘You can't make general statements about ethnic laws because they are all different, although some differ more than others.’

page 301 note 3 See Anderson, loc. cit.

page 301 note 4 For example, adultery by the husband as well as neglect of his wife by ‘never going home to her’ were described as grounds for divorce under Muslim law, whereas in fact neither are appropriate for a wife under the Maliki school to which most West Africans adhere. According to Coulson, N. J., A History of Islamic Law (Edinburgh, 1964), p. 187,Google Scholar the Maliki law allows a wife to base a petition for divorce on the husband's cruelty (not neglect), his inability to maintain her, his desertion, or his affliction with some serious ailment which makes continuance of the marital relationship harmful to the wife.

page 302 note 1 Pageard talks of divorce by mutual consent among the Mossi; op. cit. p. 24.

page 302 note 2 According to Izard, François, Les Mossi de Yatenga (Bordeaux, 1969), p. 35,Google Scholar a Mossi husband apparently needs to offer no reason for divorcing his wife. However, Paul Reisman indicates that in practice among the Peuhl either spouse can get a divorce if so desired; ‘Société et liberté chez les Peul djelgôbé de Haute Volta’, in Cahiers de l'homme (Paris), 1974.

page 302 note 3 There is some dispute as to whether formal ‘grounds for divorce’, in the western sense, in fact exist in African customary law, or whether it is better to describe the basis for a divorce in broader terms; cf. Allott, Epstein, and Gluckman, op. cit. p. 65. It is generally agreed, however, that African customary courts do not, in general, give a divorce simply in response to a request. The African judge differs from his western counterpart in that he can, and habitually does, look at a much broader range of issues before making his decision: see, for example, the case described by Lebigre, A., ‘Le Juge, la famille et le village: quelques examples de droit coutumier en République Populaire du Congo’, in Journal of African Law, 241, Summer 1973, p. 17.Google Scholar In addition to the facts of the marital dispute itself; the judge may consider the number of children, the ability of the wife's family to return the bride price, and possible remedies other than divorce. Cotran, Eugene, ‘The Changing Nature of African Marriage’, in Anderson, J. N. B. (ed.), Family Laws in Asia and Africa (London, 1968), p. 15.Google Scholar

There is evidence that some changes are taking place, and these are developed by Cotran, op. cit. p. 22: ‘the Local or African Courts are increasingly imitating the superior courts in looking at the question of divorce in terms of establishing rigid ‘grounds’, rather than using the more sensible traditional methods at [sic] looking at all the circumstances of the case.’ It is ironic that this is happening at a time when many western legal systems are moving in the opposite direction: cf. for example, the 1973 Matrimonial Causes Act in the United Kingdom, and many jurisdictions in the United States now requiring only proof that the marriage has ‘irretrievably broken down’.

page 302 note 4 Anderson, J. N. B., Islamic Law in the Modern World (London, 1959), p. 40.Google Scholar

page 303 note 1 As mentioned above, theoretically a written document, known as a plaint, was necessary to initiate a divorce action. However, it was my conclusion that this was used as a delaying tactic when the Court wanted to make it harder for the complainant to press his or her claim. In several of the cases heard there was no written documentation whatever, and in none was it as extensive or articulate as in this case.

page 303 note 2 In the words of Elias, op. cit. pp. 271–2: ‘Generally African judges are wont to indulge in end-of-trial judicial homilies to the parties. In these they attempt to state and enunciate the norms of social behaviour expected of right-minded members of the community, to condemn departures from these objective standards and to praise such acts as tend to maintain and enhance the general well-being of the community.’ This rôle in Bobodioulasso had been taken over by the Clerk of the Court.

page 304 note 1 The Bobo-Finas, Toussians, and Samblas together account for 74,695 out of the total population of 118, 142; Rapport politique, p. 6.

page 304 note 2 It is recognised that this could fit the description of customary law as described by some scholars: see, for example, Allott, Epstein, and Gluckman, op. cit. pp. 9–10, and textual discussion on the subject. However, as mentioned there, scholars tend to define customary law with reference to those areas where only one ethnic group is represented.

page 304 note 3 Interview with M Sissako Amadou, President du Tribunal de Deuxième Instance, Bobodioulasso.

page 304 note 4 According to J. E. Pool, 59 per cent of the marriages (both religious and customary) in Bobodioulasso are Muslim, which means that there must be many more followers of the Prophet than the 45,074 mentioned in the Rapport politique, p. 9, although hardly the ‘almost everyone’ asserted by Amadou, M Sissako. See ‘A Cross-Comparative Study of Aspects of Conjugal Behavior among Women of Three West African Countries’, in Canadian Journal of African Studies (Montreal), VI, 1972, pp. 233, 244,Google Scholar and Table VI.

page 305 note 1 Elias alludes to this rôle when he talks of the ‘end of trial judicial homilies’, op. cit. p. 37. He adds ‘the delivery of these sermons in the course of judgment often affords the listeners a measure of vicarious pleasure. It would be superfluous to add that they are invariably as instructive as they are edifying’; ibid. p. 272. In my view this function is served by the entire proceedings of the Court and not just the judgement.

page 305 note 2 See Gregory, loc. cit.

page 305 note 3 Many western courts also have their coterie of ‘hangers-on’, who regularly observe interesting cases. However, their silent presence serves little social purpose, and merely provides entertainment for them (and a warm or cool enviromnent, depending on the season).

page 305 note 4 By way of contrast, elsewhere in Africa, see Fallers, loc. cit. p. 73: ‘the judges, formally attired in their long white gowns and Western-style jackets, file in and take their places on the dais…As each speaker, litigant or witness addresses the bench, he bows respectfully to the judges and speaks with as much gravity and eloquence as he can muster.’

page 306 note 1 Interview with M Pasquier, Premier Juge du Cour Suprême, Ouagadougou. An appeal is initially taken to Le Tribunal de Deuxième Instance, also a customary Court sitting with different but similarly appointed assessors, and then to Le Cour d'Appel which may investigate the following: whether the judges who heard the case originally were of the same ethnic group as the parties or, if they were not, the valid reason for the difference; whether different judges heard the case on appeal to Le Tribunal de Deuxieme Instance; whether the correct customary law was applied; and whether its application and origin was written into the judgement. Cf. Salacuse, op. cit.

page 307 note 1 This is apparently generally true in African customary courts. See Allott, Epstein, and Gluckman, op. cit. p. 22.

page 307 note 2 See, for example, Paton, G. W. and Derham, D. P. (eds.), Jurisprudence (Oxford, 1972), p. 599.Google Scholar

page 308 note 1 This also happens among the Shona: ‘In case of marital trouble the court does not shrink from publicly censuring a guilty spouse and often advises the family to take certain steps to remedy the situation.’ Holleman, J. F., Shona Customary Law (Cape Town, 1952), p. 293.Google Scholar

page 308 note 2 It may have been fortuitous but I only saw this happen to wives; on several occasions those who asked for a divorce were disbelieved entirely and ridiculed by the entire Court, which — if the emotional reaction was any indication — could be a very humiliating experience.

page 309 note 1 Cotran, loc. cit. p. 33, alludes to the traditionally frequent rôle of family members as conciliators or arbitrators, and deplores its declining use.

page 309 note 2 The accessibility and specialisation of Family and Small Claims Courts are making them increasingly appealing to law reformers in the West.

page 309 note 3 This is a general characteristic of such courts: ‘Not only are customary laws changing today but also they were subject to constant change in the pre-colonial past. Furthermore, even where the formulation of laws remains fixed, we have to take into account that there may be substantial respecifications in the application of persisting legal formulae both to recurrent and to new situations.’ Allott, Epstein, and Gluckman, op. cit. p. 9. Fallers stresses the importance of this flexibility as a characteristic of customary law; loc. cit. p. 80.

page 309 note 4 With reference to Upper Volta, see Coulibaly, , ‘Socio-Cultural Values and Fertility: the case of Upper Volta’, M.A. thesis, Cornell University, 1972.Google Scholar For a general discussion of this issue, see Cotran, loc. cit. p. 17, and Goode, W. J., World Revolution and Family Patterns (New York, 1970), pp. 197–8.Google Scholar

page 310 note 1 See Pageard, loc. cit. p. 333, and Houlas, B., Les Sénoufo (Paris, 1966).Google Scholar

page 310 note 2 Interview with M Osseini, President du Tribunal de Premier Instance, Bobodioulasso.

page 310 note 3 Interview with M Sanon, Court Clerk for the Registration of Marriages, Bobodioulasso. See also Phillips, A. and Morris, H. F., Marriage Laws in Africa (London, 1971), pp. 37–48.Google Scholar

page 310 note 4 Ibid. pp. 38–9, and Allott, Epstein, and Gluckman, op. cit. pp. 25–6.

page 310 note 5 This recommendation was made by the Conseil consultative national pour le renouveau, set up to discuss issues relating to family law and the customary court, which completed its business in early 1976, but did not set a specific date for such a change to take effect.

page 310 note 6 Allott, Epstein, and Gluckman, op. cit. p. 25, wisely observe that ‘The informality of local courts may not continue to be effective in securing justice when the judges are no longer selected from among the local community and are no longer conversant with the people, with customary law and daily practice, and with what litigants expect from their courts.’