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WHATWASTHEINDIGNAT?THEEMPIREOFLAWIN FRENCHWESTAFRICA
GREGORYMANN
TheJournalofAfricanHistory/Volume50/Issue03/November2009,pp331353 DOI:10.1017/S0021853709990090,Publishedonline:12January2010

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Journal of African History, 50 (2009), pp. 33153. f Cambridge University Press 2009 doi:10.1017/S0021853709990090

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N A T ? TH E E MP IR E OF WHAT WAS THE INDIGE L A W I N F R E N C H W E S T A F R I C A*

BY GREGORY MANN

Columbia University
A B S T R A C T : What was the indige nat ? This article approaches this question via three arguments. First, a study of the indige nat (the regime of administrative sanctions applied to colonial subjects) challenges the idea that French West Africa formed part of an empire of law . Second, a dynamic spectrum of political statuses developed around the indige nat until its abolition in 1946. This spectrum is no less signicant than one of its poles alone, that of colonial citizens. Third, the indige nat, its narrative of reform, and its relationship to law, bureaucracy, and authority illuminate the tensions between imperial rhetoric and colonial governance. KEY WORDS:

West Africa, colonial administration, law, state.

W H A T was the indige nat, that obscure core of the French colonial state ? In approaching this deceptively simple question, this article will make three intertwined arguments. First, a study of the indige nat the regime of administrative sanctions applied to colonial subjects disrupts the argument that French West Africa was part of an empire of law, as historians of French colonialism in Africa and Southeast Asia have argued.1 Particularly in the absence of European settlers and the accompanying anxieties around race and dignity that they provoked among colonial administrators, law as such was neither the heart of the imperial project nor the cornerstone of colonial authority in French West Africa.2 Second, until its abolition in 1946,
* A very preliminary version of this paper was presented to Leonard Smiths French Empire Workshop, Oberlin College, 18 November 2005. I thank Professor Smith and his students, Alice Conklin, Eric Jennings, and Daniel Sherman, for their comments on that occasion ; Eike Karin Ohlendorf, Daouda Gary-Tounkara, Jim Brennan, and Marcia Wright for comments or assistance ; and Laurent Manie ` re for sharing his thesis. 1 E. Saada, The empire of law : dignity, prestige, and domination in the colonial situation , French Politics, Culture and Society, 20 (2002), 98120 ; R. L. Roberts, Litigants and Households : African Disputes and Colonial Courts in the French Soudan, 18951912 (Portsmouth, NH, 2005). Note that Saada adopts an expansive denition of law in Les Enfants de la colonie : les me tis de lempire franc ais entre suje tion et citoyennete (Paris, 2007), 13, note b. 2 Here one might arm the claim of Aime Ce saire, that colonization was not fundamentally an attempt to extend the rule of law : Discourse on Colonialism, trans. Joan Pinkham (New York, 2000), 32. Two distinctions within the French empire must be recognized here: rst, between colonies with legislative regimes and colonies, such as the Federation of French West Africa (the AOF), that were ruled by decree ; second, between the non-settler colonies such as the AOF and colonies in which laws predicated on race aimed to control interactions between individuals and populations of native and foreign (especially European or Asian) origin. On the rst distinction, see R. Delavignette,

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an ever-expanding and contracting spectrum of political statuses, exemptions, and privileged categories developed around the indige nat in both meanings of that term the regime of sanctions and the status of the native ` ne). This spectrum is potentially more revealing and surely no less (indige signicant than one of its poles taken alone, namely the narrow category of colonial citizens on which a rich literature exists.3 Indeed, susceptibility to or exemption from the indige nat represented both marker and motive for the proliferation of political statuses in French colonial Africa. Third, attention to the workings of the indige nat allows a reassessment of the role of violence in the practice of colonial authority. In contrast, studies focusing on colonial law tend to diminish the role of such violence whether enacted or potential and to privilege legal institutions and procedures over day-to-day practices revealed, however imperfectly, via other sources.4 Rather than traversing 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.), Le on Blum : chef de gouvernement, 193637 (Paris, 1965), 3904. On the second, see Saada, Dignity ; Saada, Enfants, esp. ch. 4; A. Stoler, Carnal Knowledge and Imperial Power : Race and the Intimate in Colonial Rule (Berkeley, 2002); I. Merle, Retour sur le re gime de lindige nat : gene ` se et contradictions des principes re pressifs de lempire franc ais , French Politics, Culture and Society, 20 (2002), 7797, published in a slightly modied version as De la le galisation de la violence en contexte colonial : le re gime de lindige nat en question , Politix, 66 (2004), 13762. On law, race, and settler colonies in sub-Saharan Africa, see notably M. Mamdani, Beyond settler and native as political identities : overcoming the legacy of colonialism , Comparative Studies in Society and History, 43 (2001), 65164; C. Lee, The native undened : colonial categories, Anglo-African status and the politics of kinship in British Central Africa, 19291938 , Journal of African History, 45 (2005), 45578 ; M. Crowder, The Flogging of Phinehas McIntosh : 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 Britains Gulag in Kenya (New York, 2005) ; and C. Elkins, Race, citizenship, and governance : settler tyranny and the end of empire , in S. Pederson and C. Elkins (eds.), Settler Colonialism in the Twentieth Century : Projects, Practices, and Legacies (New York, 2005), 20322. 3 See notably M. Diouf, Assimilation coloniale et identite s religieuses de la civilite des originaires des Quatre Communes (Se ne gal) , Canadian Journal of African Studies, 34 (1999), 56587; R. Shereikis, From law to custom : the shifting legal status of Muslim originaires in Kayes and Medine, 19031913 , Journal of African History, 42 (2001), 26184; C. Coquery-Vidrovitch, Nationalite et citoyennete en Afrique Occidentale Franc aise : originaires et citoyens dans le Se ne gal colonial , Journal of African History, 42 (2001), 285305 ; G. Wilder, The French Imperial Nation-state : Negritude and Colonial Humanism Between the Two World Wars (Chicago, 2005) ; A. Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa, 18951930 (Stanford, 1997); G. Wesley Johnson, The Emergence of Black Politics in Senegal : The Struggle for Power in the Four Communes, 19001920 (Stanford, 1971) ; M. Crowder, Senegal : A Study of French Assimilation Policy (rev. edn, London, 1967). See also E. Saada, La Re publique des indige ` nes , in V. Duclert and C. Prochasson (eds.), Dictionnaire Critique de la Re publique (Paris, 2002), 36470. A. I. Asiwaju made a similar point, directing his argument against studies of assimilation and association : Asiwaju, Control through coercion : a study of the indige nat regime in French West African administration, 18871946 , Bulletin de lInstitut Fondamental dAfrique Noire, se ries B, 41 (1979), 40. 4 For a comparable argument regarding the tendency of American social science to write violence out of studies of independent Egypt, see T. Mitchell, Rule of Experts : Egypt, Techno-politics, Modernity (Berkeley, 2002), ch. 5.

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coordinates and law the terra rma, or invoking the indige nat as anti-structure,6 I place it at the center of an analysis of the colonial situation ,7 not as the luminous essence of colonial ideology but as its inverse, a kind of black hole that represents a center of gravity into which it is dicult to peer but which denes the space around it.
NAT ? WHAT WAS THE INDIGE

A regime of exception based on rule by decree, enacted in often arbitrary and sometimes spectacular punishments, and concerned primarily with asserting administrative power, the indige nat was rst established in Algeria in 1881.8 Its use spread across the empire of the Third Republic : a regime of administrative sanctions based on the Algerian model was extended to Senegal in 1887 and to the newly created federation of French West Africa (AOF) in 1904; a colonial court system had been introduced throughout the AOF in 1903.9 Thus, virtually from the moment of their creation, courts operating under customary and colonial law evolved side by side with a tertium quid, an unspoken and roughly sketched domain of non-law. Crimes murder, theft, and the like fell under the purview of colonial tribunals on which local notables sat, presided over by French commandants. Oenses, on the other hand, and however loosely dened, were met with arbitrary, albeit limited, sanctions at the discretion of local commandants, who could jail, ne, or bind people.10 Thus, in spite of a complex system of courts and colonial justice an oxymoron one should not allow to become naturalized the indige nat
5 As Richard Roberts ably does in Representation, structure and agency: divorce in the French Soudan during the early twentieth century , Journal of African History, 40 6 (1999), 389410. A. Mbembe, On the Postcolony (Berkeley, 2001). 7 G. Balandier, La Situation coloniale : approche the orique , Cahiers Internationaux de Sociologie, 11 (1951), 4479. 8 The phrase re gime dexception appears in a 1918 circular on the synthesis of the various texts of the indige nat and it remained in use for decades : see S. Mbaye, Histoire des institutions coloniales franc aises en Afrique de lOuest (18161960) (Dakar, 1991), 712 ; and, e.g., Gouverneur Ge aise (hereafter GGAOF) ne ral de lAfrique Occidentale Franc de Coppet to Administrateur de la circonscription de Dakar, 25 Jan. 1937, no. 134 AP/2, Archives Nationales du Se ne gal (hereafter ANS) 17G97. GGAOF Ponty had characterized the indige nat in much the same way in 1913 : L. Manie ` re, Le Code de lindige nat en Afrique occidentale franc aise et son application : le cas du Dahomey (18871946) (unpublished 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 noire et a moignages ` Djibouti , in J. Clauzel (ed.), La France dOutre-Mer (19301960) : te dadministrateurs et de magistrats (Paris, 2003), 64972. 10 The severity of sanctions changed over time. One might take as a kind of benchmark the version of the indige nat decreed on 15 November 1924. Depending on the administrative district, it allowed for nes of up to 15 or 100 Frs, imprisonment for up to 5 or 15 days, and bondage in case of non-payment of nes for up to 15 days, depending on the amount of the ne. Under the terms of the same decree, governors could intern individuals, seize their goods, and either assign them to a place of residence or forbid them from visiting a given place for up to ten years. See GGAOF, Textes re organisant lindige nat en AOF (Gore e, 1926).

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provided legal cover, however scant, for colonial coercion until after the Second World War. In 1946, the indige nat nally fell to a long-running process of reform that had been at work within the colonial administration and the Ministry of Colonies for over two decades before being pushed along by General Charles de Gaulle, head of the provisional government of the French Republic, beginning in Brazzaville in 1944.11 A parliamentary assault led by newly elected African parliamentarians such as Lamine Gue ` ye, Fe lix Houphoue t-Boigny and their allies delivered the coup de grace. Along with the very status of colonial subject (a phrase also captured by the term indige nat), it was abolished throughout an empire then in the process of being formally reconstituted as the French Union, in which former subjects would hold an ambiguous citizenship. For nearly sixty years, the indige nat had enshrined administrative power and ensured that colonial administrators particularly commandants could inict swift punishments for any challenge, real or perceived, to their personal authority and that of the colonial state. It was perhaps the most important element of the administrative tool kit. When, as recounted by a prominent historian, men and women spent long nights along the marshes of the inland delta of the Niger slapping the water with their hands in order to quiet the frogs that troubled an administrators sleep, the indige nat was at work.12 In 1932, when an African auxiliary (garde-cercle) stued recalcitrant taxpayers into a small dwelling in which ten of them would suocate, it was the indige nat that originally provided legal justication for his actions.13 And
11 ` 1960 On Brazzaville, see J. R. de Benoist, LAfrique occidental franc aise de 1944 a (Dakar, 1982), 26. Gue ` ye would continue to push for reform of native justice in the months after Brazzaville: see GGAOF to Procureur Ge ne ral du Service Judiciare, 1 March 1944, no. 486 AP/1. Abolition occurred rst via a series of texts issued under the provisional government, before the establishment of the Fourth Republic : Minister of Colonies to GGAOF, 6 Aug. 1945, no. 10476 AP ; Ch. De Gaulle, Decree 46-D137 (illeg.) of 22 Dec. 45, printed in Journal Ociel de la Re publique Franc aise, 26 Dec. 1945, promulgated in the AOF on 29 Dec. 1945, printed in Journal Ociel de lAOF, 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 lAOF Cournarie to Governors, AOF, and to the Circonscription of Dakar, 8 March 1946 ; all from ANS 17G168. Abolition was secured by the law of 7 May 1946, known as the Loi Lamine Gue nat had been very signicantly reformed in Algeria in 1927, when ` ye . The indige justices of the peace began to hear charges brought under it. Some refer to this as its abolition in Algeria, while others insist that it existed in this diminished form until 1944 : Saada, Re publique , 368; Merle, De la le galisation , 142, n. 14. Asiwaju overreaches the evidence in attributing the demise of the indige nat in West Africa to local resistance, especially violence and emigration : Control , 6970. I would argue that it was abolished not because it was ineective but because it quite eectively underpinned a certain kind of empire, one that African and (loosely speaking) Leftist political maneuvering, including the designs of Maurius Moutet, the Minister of Colonies (193637, 194647), rendered impracticable. By the same token, its abolition represented not a step towards eventual independence but rather greater incorporation into a rapidly and profoundly changing republican political system. On these points, see generally H. Arendt, The Origins of Totalitarianism (New York, 1994 ; 1st edition 1948), esp. ch. 8 ; more specically, 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

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in the same year, when a man died of a cerebral hemorrhage after a week in detention, the only charge against him the cause of his imprisonment was a bad attitude towards paying his taxes , an oense punishable under the indige nat.14 The term indige nat itself is often translated as the Native Code , a phrase that suggests a false parallel to native or customary law in the British colonies. Customary law worked to enable British rule by establishing and protecting the authority of African chiefs or elders.15 The indige nat did no such thing at least, not after a period of experimentation in which it empowered chefs de canton (canton chiefs). That period ended in nat served to protect administrative authority, 1912.16 Thereafter, the indige of which chiefs were considered mere representatives .17 It never relied on the ction of custom. Moreover, just as customary law itself was not necessarily customary, this Native Code was neither native in origin nor truly a nat code.18 Mahmood Mamdani may have best captured the sense of the indige in 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 on coals in a conned space to create a noxious and suocating gas. For similar examples, see H. Brunschwig, Noirs et Blancs dans lAfrique noire franc aise, ou comment le colonise devient le colonisateur (Paris, 1983), 143 ; M. Saul and P. Royer, West African Challenge to Empire : Culture and History in the Volta-Bani Anticolonial War (Athens, OH, 2001), 100 ; and A. H. Ba , Oui, Mon Commandant ! Me moires II (Arles, 1994), 1749. 14 Registre de crous, San, 1932, ANM 2M309FR, dossier 17. Note that this man was not charged 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 invention in British colonial Africa , Journal of African History, 44 (2003), 328, esp. 1316 ; B. Shadle, Changing traditions to meet current altering conditions : customary law, African courts, and the rejection of codication in Kenya, 19301960 , Journal of African History, 40 (1999), 41131 ; 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 indige nat protected the authority of chiefs was a matter of some confusion among high-ranking administrators in the mid 1930s. Although Dakar insisted that it did indeed, the Governor of Guine e voided several individual sanctions on the grounds that it did not, and in one case went so far as to argue that the indige nat could only be invoked to sanction oenses against European agents of authority . Dakar rejected this interpretation. See Commission Permanente du Conseil dAdministration, Guine e Franc aise, 16 Feb. 1935, no. 42 API ; GGAOF, Circular, 1 July 1935, no. 265 ; GGOAF to Gouverneur du Guine aise, 27 April 1936, no. 214 ; and Directeur des Aaires e Franc Politiques et Administratives (hereafter DAPA), note for GGAOF, 30 April 1936, no. 472 AP/2 ; all from ANS 17G84. 18 Although the indige nat was not technically a code, it is often described as such, and I have retained the term for felicity of usage and to diminish repetition. Colonial jurists often distinguished it from a code by referring to it as a re gime : Merle, De la le galisation , 142. On the irregular practices of colonial judgment and punishment that existed before the indige nat was elaborated in the AOF, see Roberts, Litigants, esp. 601. On codication, see also Wilder, French Imperial Nation-state, 10611; J.-H. Je ze quel, Collecting customary law : educated Africans, ethnographic writings, and colonial justice in French West Africa , in B. Lawrance, E. Osborn, and R. L. Roberts (eds.), Intermediaries, Interpreters, and Clerks: African Employees in the Making of Colonial tudes Historiques et Scientiques de Africa (Madison, 2006); and, e.g., Comite dE lAOF, Coutumiers juridiques de lAOF, tome 1: Senegal ; tome 2: Soudan Franc ais (Paris, 1939).

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of day-to-day practice in the colonies .19 While Mamdani is not entirely correct the indige nat marked limits rather than rules his point on day-today practice is entirely accurate, and goes a long way towards explaining why successive generations of commandants battled ercely with their administrative superiors to preserve the powers with which it provided them. The indige nat dened the very status of native on which colonial rule relied and, as a code , it listed oenses that by denition only natives nat was ultimately both a set of sanctions could commit .20 Thus, the indige nat enumerated and a colonial state of being.21 The 1924 revision of the indige twelve oenses, reduced from fty in previous versions. These included
obstruction to the collection of taxes and execution of prestations ; refusal to execute work of interest to public order, security, or public utility ; refusal to answer a summons from the administration committing any act of a nature to weaken respect for French authority refusal to accept French money having legal circulation22

and so on. Future revisions would continue to whittle down or ratchet up the number and quality of oenses recognized under this regime of exception . In apparent contradistinction to the case in Indochina analyzed by Saada the code in the AOF did not include increasingly precise descriptions of aronts to colonial prestige .23 Rather, the question of what constituted an aront remained vague. In other words, in the AOF the reduction in the number of oenses did not represent liberalization or rationalization but an entrenched arbitrariness. The indeterminate nature of the indige nat neither law nor its opposite served to realize the dual and contradictory imperatives of assuring an expansive and rapid eld of action , so cherished by commandants and their champions,24 and extending the control of the colonial administration, from the ministry in Paris to governors-general and governors in colonial capitals, over its own agents in the eld.25 And it did so amid the appearance of reform and of the gradual extension of the rule of law. That is to say, the process of reform did not run counter to the logic of the indige nat but was a fundamental part of it.26 Examining the indige nat closely tells us a great deal about the shifting theories and 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 Late 20 Colonialism (Princeton, 1996), 1267. Saada, Re publique , 368. 21 ` ne and indige On the latter sense of indige nat, 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 human remains except in ocial cemeteries, Florence Bernault argues persuasively that what was at stake in the AEF was not prestige but a struggle over the representation of power through the control of bodies and body parts : F. Bernault, Body, power and sacrice in Equatorial Africa , Journal of African History, 47 (2006), 20739, esp. 231, n. 78. 24 R. Delavignette, Freedom and Authority in French West Africa (London, 1950 ; 1st edition 1946). 25 The inspectors of administrative aairs played an important role in this struggle and provide key sources for Merle, De la le galisation . 26 Compare Foucaults argument on punishment and reform : M. Foucault, Discipline and Punish : The Birth of the Prison (New York, 1977 ; 1st edition 1975), esp. 82. Thus the signicance of the phrase re gime dexception (see n. 8 above).

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the very existence of the indige nat, the dynamic and ongoing process of its reform, and its complex relationship to law, bureaucracy, and authority speak to the ability of empire to survive republican regimes and nestle within them, or, inversely, to the capacity of republics to accommodate on their supposed margins the absence of law and the rise of rule by decree.27
A N E M P I R E O F L A W ?

The vein of law is a rich one. Mining it can reveal where and how colonial administrators and their interlocutors were rational or irrational in their projects, reactive or imaginative in their designs, conservative or innovative in their policies. If law can provide a key to intellectual history, the study of court cases can illuminate social history.28 And yet there is an impasse in scholarly writing on law in the colonial context. Law is a culprit for some,29 a neutral agent30 or form of structure for others.31 Such characterizations may give rise to elegant arguments, often placing property and exchange at the core of their analyses.32 However, taken as a whole, such work suggests or may explicitly state that the French colonial regime was fundamentally a legal 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 ranging from uniformity to the independence of the judiciary or the notion of the juridical subject as an individual (as opposed to a collectivity) would represent a transitory aberration, an anomaly to be explained away, rather than the very foundation of a system of government that obtained in the colonies nat but was unthinkable in the imperial metropole.33 Attention to the indige exposes 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 indige nat had until quite recently rarely been the subject of concentrated study,34 and it remains poorly understood by historians of Africa and of French colonialism.35 Over 25 years ago, A. I. Asiwaju sought to demonstrate the signicance of the indige nat for the elaboration of French imperial practice and argued for the importance of its decline. I concur with Asiwaju that the indige nat lay at the very heart of colonial rule and administrative power in francophone Africa. An understanding of it is crucial to any comprehension of the lived experiences of Africans under French colonial rule and of the operations of an administration fundamentally concerned with maintaining order at the
See Arendt, Origins, 2435 ; Wilder, French Imperial Nation-state ; Merle, De la le galisation , esp. 13940. See also Anderson, Histories. 28 29 Roberts, Litigants. Mamdani, Beyond settler and native . 30 Merle, De la le galisation ; 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, 14001900 (Cambridge, 2001); Roberts, Litigants. 33 Wilder approaches this problem in his discussion of law and political rationality, but leaves the indige nat aside : French Imperial Nation-state, chs. 3 and 4. 34 In addition to Merle, Retour and De la le galisation , see Manie ` re, Code ; O. Gue ` ye, Droits de lhomme et pratique historique : le code de lindige nat (unpublished PhD thesis, Universite Cheikh Anta Diop de Dakar, 199596). 35 `res et sujets: la France et lAfrique en perspective (Paris, See, e.g., J. P. Dozon, Fre 2003), 13544.
27

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lowest possible cost. Yet Asiwajus view was resolutely Manichean. Taking Frantz Fanon as his central point of reference and with an implicit nod towards the then-current thesis of underdevelopment Asiwaju emphasized the interplay of the physical and structural violence (or social injustice ) at the foundation of colonial rule. Thus, if for him the indige nat 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 increase economic production. However, the contradictions of the indige nat elude such ready analysis. In fact, under the Vichy regime, administrators in Dakar explicitly forbade the use of the sanctions recognized by the indige nat to punish those who refused to produce non-edible crops destined solely for export.37 That the principle tool used to sanction colonial coercion could not be employed to force export-oriented production at a time of war and economic 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 by decree battled both liberals who sought to extend the reach of the law and local commandants jealous of their power and their prerogatives.38 Law itself was neither a culprit nor an agent of colonial rule. It was at once a tool, the utility of which is evident, and an alibi.39 Throughout the interwar years, colonial administrators used the ongoing process of reform, or the extension and amelioration of legal systems, as rhetorical cover for their continued reliance on coercion and violence. That alibi was made increasingly necessary by metropolitan critics of the colonial regime, by anti-colonial African radicals and activists (often writing from France, where the indige nat did not apply), by the increasingly managerial and bureaucratic approach to governance adopted at the colonial capitals, and by the growing attention paid to an administration that could never quite realize the claim that the empire represented a boon rather than a burden for the metropolitan state. Moving forward with the premise that, at least on the ground, law was an alibi, I now turn to what it enabled.
NAT PRACTICING THE INDIGE

It is dicult to approach the indige nat as a historical problem. Narrative is scarce, yet two forms of it compete. The narrative of reform, driven and chronicled by Paris and Dakar until the indige nats demise, suggests that the
Asiwaju, Control , 53. DAPA to Directeur des Services Economiques, GGAOF, Dakar, 20 Feb. 1942, no. 430 AP/1, ANS 17G168. The indige nat itself, of course, remained in eect. 38 The rst 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 use the indige nat to frame or calibrate the exercise of violence by civilian or military ocers as much as to subjugate the Kanaks in the wake of conquest : Retour , 85, 91; De la le galisation , 150. In comparison, Saada argues that their desire to defend colonial dignity and prestige led imperial ocials to discourage the use of force and to invest great energy in policing and maintaining control over Indochinas Europeans : Empire , 105, 115 ; Enfants, 72. 39 Cf. C. Young, who uses the metaphor of a shroud : The African Colonial State in Comparative Perspective (New Haven, 1994), 154.
37 36

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administration grew increasingly rational and liberal as it approached a horizon beyond which its authority would emanate from colonial capitals and be grounded exclusively in law, rather than being dispersed in cercles and contingent upon the personal qualities of commandants and their agents.40 Yet that very language of reform must be understood as a fundamental element of the object of study, the indige nat, rather than as its antidote or, less dramatically, as evidence of its amelioration. A competing set of narratives of episodic brutality and arbitrary sanctions exists primarily, although not exclusively, in West African memories.41 By their very nature, traces of the indige nat and the kind of coercion it sanctioned that appear in oral histories tend to be anachronistic. Such stories focus more often than not on the gardes-cercle, the men Henri Brunschwig dubbed kings of the bush (rois de la brousse). That evocative phrase is frequently associated with the commandants and sometimes the chefs de canton but the gardes were indeed an extension of the commandants power into the countryside.42 Before the 1940s, many villages rarely if ever witnessed the visit of a colonial administrator of any rank, and even the gardescercle were scarce. Yet the institutionalization of rural violence under the indige nat fell largely to the account of these men, known in parts of Mali as the gardike or the murujantigiw (carriers of long knives) for the swords they wore. The gardes became infamous, and stories swell around them : owners of dogs tied them up in the bush with the wild animals at night in order to avoid disturbing the sleep of gardes visiting their villages ; gardes publicly stripped and agellated men who were late to attend the state-run cotton market; gardes seeking taxes and fugitives would whip shrouded corpses to ensure that the gures inside were dead and to humiliate the living.43 Whether such stories represent anecdotes or testimonies, they vividly illustrate the common perception that the gardes wielded an irrational power virtually without limits. Yet they themselves were susceptible to the indige nat, as one drunken garde discovered when he insulted an American missionary at a rural market in 1944 and the commandant jailed him for 15 days.44 If the indige nat 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 of the characteristics of sovereigns. Commandants had the power to accuse,
40 For a defense of the latter practice, see Delavignette, Freedom. Delavignette trained a generation of colonial administrators in his post as director of the Ecole Nationale de la France dOutre-Mer in the 1930s and 40s. 41 The case of the recalcitrant taxpayer cited above is an exception, present in the archives because, almost certainly owing to a beating he received, he died in jail. Mitchell argues 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 `ne ` dougou au cre Brunschwig, Noirs ; R. Colin, Ke pescule de lAfrique occidentale : me moires des anne es cinquante (Paris, 2004), 2004. 43 S. N. Konate , Les chefs de canton et les gardes de cercle dans le syste ` me administratif franc ais au Soudan, 19001945 (unpublished MA dissertation, Ecole Normale Superie ` ure (Bamako), 1983). The son of a former garde, Konate based his dissertation on interviews conducted in southern Mali. 44 Inspecteur des Aaires Administratives, M. Laine, Rapport no. 43/AA, 25 June 1944, ANM 2D39FR.

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condemn, and sanction in an instant with little oversight, and in the local courts they sat in judgment over charges they had brought, thereby serving as both judge and prosecutor.45 For these men, in the approving words of an administrator in Guinea, the indige nat served as a procedure of intimidation .46 Whether in the capital of a cercle or while engaged in the art of going on tour47 in the bush with an escort of gardes, commandants with few exceptions greatly prized the power that the indige nat gave them to exact swift and immediate sanctions. Indeed, the very speed with which it enabled them to mete out punishment remained one of their key and most common arguments in favor of the indige nat.48 They placed great emphasis on the fact that those they punished could be imprisoned on the same day, without appeal or reference to an administrative superior; such eciency made their power appear unconditional. Colonial administrators frequently referred to the indige nat as a necessary holdover from the period of conquest.49 They continued to use that metaphor of the conquest even as their ever-aleatory ability to exert political control became increasingly uniform and subject to the rules and procedures of bureaucratic governance rather than emanating, as many believed, from their personal powers of command. This invocation of even nostalgia for a moment of conquest that by the 1920s very few of them could have known rsthand represented a form of resistance to a professionalized, futureoriented, and self-consciously modern faction that was increasingly inuential within the administration. The use of the metaphor suggested, of course, that their continued reliance on the indige nat was a function of the lack of advancement of the populations that they sought to govern. Thus a form of government that administrators themselves characterized as exceptional and in some sense primitive co-existed awkwardly with slowly changing administrative practices and rapidly evolving tools and technologies of colonial rule. For instance, from 1943 and for the rst time, Sans 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 rst months after it arrived. Tracking down rumors and checking on production, he came into much more frequent contact with the people he governed, and a greater number of them therefore wound up in jail.50 Demands for production were more stringent than ever before certainly more aggressive
In criminal courts, they could impose the death penalty, subject to review by the Governor. 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, 428. See also F. Simonis, Le Commandant en tourne e: une administration au contact des populations en Afrique noire coloniale (Paris, 2005). 48 Such rhetoric appeared as early as 1912 : Manie ` re, Code , 209. 49 Fraternite rejected that rhetorical sleight of hand : see Supprimons la justice indige , 30 Jan. 1946, ANS ` ne , article in lAOF, 8 March 1946, reprinted from Fraternite 17G168. Manie ` re adopts the metaphor of conquest, as well as nding it in his sources: see Code, 17, 82, 91, 292. 50 Rapport de tourne es du mois de Jan 1943, n.d. (Jan. 1943), no. 1, ANM 1E143FR. Gauthier was also a particularly unpopular commandant among the population of the cercle : interview with Bakari Kamian.
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than under Vichy (194042) and before it broke down the new Peugeot enabled Gauthier and his agents to verify whether or not his instructions were being followed to the letter.51 Along with the car came another increased demand : road maintenance. The corve e regime that had long relied on the labor of those imprisoned under the indige nat intensied, and the long-running struggle between the peasantry and the administration over building, repairing, and maintaining roads was waged with new ferocity. Soon the commandant 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 rapid transport did not result in greater transparency or administrative rationality (for instance, by taking oenders to court) ; instead, the technology enhanced the ability of commandants to preserve and carry on practices that they associated 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 in custody or the arrival of new technologies, sporadic record-keeping allows further glimpses into the way in which the regime worked in practice, and into this shadowy intersection of bureaucracy and sovereignty. Yet, although the keeping of records on oenses and punishments was mandated within the administration,53 in the interwar years its men on the spot frequently rejected what they saw as the extension of centralized bureaucratic power and an encroachment on their own personal authority. Many of them struggled to resist both their own subordination within the hierarchy of the colonial administration and the draw of what Robert Delavignette termed the colonial society European and bourgeois which lured them away from the colony that they sought to master.54 At stake, in either case, was the transformation of a much-prized form of personal power into its own rationalized and bureaucratic shadow. As Isabelle Merle suggested, much of the eort at reform of the indige nat was therefore devoted to attempting to control commandants and other colonial agents.55 Yet because decisions repealed by governors and governors-general more often than not dealt with faits accomplis, reversals of the decisions of commandants did little for those who had already been jailed for their oenses and released;56 instead, they

51 Commandant Gauthier, Rapport de tourne es du mois de Mai 1943, 30 May 1943, no. 2, and agricultural agent Chollier, Rapport Agricole Mai 1943, 1 June 1943, ANM 1E143FR. On administrative tours and the indige nat under Vichy, see R. Ginio, French Colonialism Unmasked : The Vichy Years in French West Africa (Lincoln, NE, 2006), 2830. 52 On administrators fascination with both the automobile and roads, see E. Alber, Motorization and colonial rule : two scandals in Dahomey, 1916 , Journal of African Cultural Studies, 15 (2002), 7992. Delavignette was more ambivalent about the eects of the automobile on colonial government : Freedom, 423. On forced labor and roadbuilding, see B. Fall, Le Travail force en Afrique Occidentale Franc aise (19001946) (Paris, 1993), ch. 6 ; see also B. Djibo, Silence ! On de colonise : itine raire politique et syndical dun militant africain (Paris, 1992), 223. 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, 101617.

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represented attempts to assert central control that were eectively doomed to fail. The failure of central control can be seen in the phenomenon of the particular punishment known as contraint par corps xe (bodily constraint ), which appears to have been practiced in multiple forms. Tribunals could sentence common-law prisoners to serve part of their sentences bound. On no authority other than their own, however, commandants also bound colonial subjects, often in a painful sitting position, for a xed period of time or until their taxes, nes, or debts had been paid o. Some inicted this punishment in combination with imprisonment or nes. In some instances, such constraint eectively represented a form of hostage-taking, by which the family of the person being constrained was compelled to pool its resources, or potentially to go into debt, to obtain his release. In 1934, the oce of the Governor of Soudan Franc ais had remonstrated with one of the colonys commandants, insisting that constraint was intended to be imposed only by tribunals and under certain conditions, and solely to force the payments of nes or debts.57 There was clearly no consensus on such limits. The tribunal of the cercle of Bamako sentenced people to be jailed and bound for oering verbal opposition to military recruitment,58 and in San the commandant expanded upon the powers granted him by the indige nat and not under the law to have people bound for charges ranging from insubordination to preferring cowries over francs in a marriage payment.59 Given the intensity of the struggle for control that reform of the indige nat represented, it is no surprise that, in practice, the gamut of oenses sanctioned under it tended to expand continually, even as it contracted formally. What were people punished for ? More than half of all recorded punishments under the indige nat in the mid 1930s were related to taxation and labor requisition,60 yet these were not the sole oenses leading to the exercise of the indige nat. Peasants could be jailed or sanctioned for neglecting any number of orders, included planting too few peanuts, failing to cultivate castoroil plants, growing too much pepper and selling it to African traders, or emptying reserve granaries. As one might expect, such coercion became more acute at moments of state crisis. The war years, for example, were certainly not the most tranquil of the colonial period, but they were unquestionably years in which taxation was important. Yet hardly more than a fth of the acts sanctioned under the indige nat in San from 1941 to 1944 were even loosely related to taxes (nor did all the punishments take the form of nes). Nearly as many related to refusal to obey the orders of colonial ocials, ranging from gardes-cercle to the commandant himself.61 Demonstrating ill will or refusing to respond to the
Bureau Politique, Soudan Franc ais, observations on Tribunal du premier degre notice des jugements rendus en matie ` re repressive pendant la mois daou t 1934 , ANM 2M239FR. See also GGAOF, Textes, 7. 58 Bamako, Tribunal du premier degre , audience publique du 24 Oct. 1939 , ANM 2N62FR; see also Cercle of Kita, Extrait du registre d e crou concernant six de tenus susceptibles de tre transfe re s 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 lindige nat en AOF , 5 Nov. 1936, unnumbered, ANS 17G84 ; see also Asiwaju, Control , 601. 61 San, Punitions Disciplinaires , 194144, ANM 2M170FR.
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convocation of a canton chief or a garde regularly led to jail sentences and nes. Thus it would seem that in San in the early 1940s, at a moment when extraction was acute, the indige nat was exercised to protect neither extraction, in this case, nor custom itself, as argued above, but the power of the state, 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 the AOF yet illegal under French law, which is built on the principle of individual sanction.62 In 1921, a commandant on tour in a rural canton had inicted identical penalties on as many as 15 men from one village at the same time.63 In the 1940s, the severity of punishments increased: as an elderly veteran would complain to one of the White Fathers in 1942, The French the weaker they are, the more demanding they are [Les Franc ais, plus ils sont faibles, plus ils sont exigeants].64 Interfering with military recruitment, for example, earned 31 men in one village the penalty of six days of bondage, in addition to heavy individual nes.65 Other collective punishments were meted out for evading taxes, interfering with recruitment, or refusing the orders of the administrators, canton chiefs, or gardes-cercle.66 In the 1940s, planting the wrong strand of cotton, or even hoeing a cotton eld poorly could result in sanctions inected on a collectivity rather than any individual.67 Such collective punishments, however, relied on a central proposition : that the population of a village or collectivity shared some uni` nes, form legal or juridical status. There could be no indige nat without indige or, more precisely, without colonial subjects. Yet the phenomenon of reform undermined that central proposition by introducing exemptions for individuals and for social categories.
CATEGORY ERRORS

Given the amount of power invested in them through it, it is no surprise that commandants opposed with near unanimity eorts to reform the indige nat by extending exemptions from it, whether to particular individuals or to entire social categories of colonial subjects, such as women. Not only was the indige nat as a set of sanctions central to the day-to-day operations of colonial rule but, more abstractly, it also marked the boundary between the statuses of subject and citizen that provided its logic. Exemptions risked blurring the stark divisions between categories of people that lay at the core of the colonial system, and they would also eventually produce a heterogeneous spectrum of people occupying distinct juridical categories even if these were recognized
Merle, Retour , esp. 85. Peines disciplinaires , 2nd trimester, 1921, ANM 2M239FR. 64 Rapport du Tourne e, Tioutiou et Mandiakuy , 410 Dec. 1942, ANM 1E38FR. 65 San, Peines disciplinaires , 1943, ANM 2M170FR. 66 San, Punitions disciplinaires , 194144. 67 In 1941, seven people paid 45 Frs a piece for that oense: San, Punitions disciplinaires , 1942, ANM 2M170FR. On the deep connection between cotton cultivation and state power, see R. L. Roberts, The coercion of free markets : cotton, peasants, and the colonial state in the French Soudan, 19241932 , in A. Isaacman and R. L. Roberts (eds.), Cotton, Colonialism, and Social History in Sub-Saharan Africa (Portsmouth, NH, 1995), esp. 227.
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in theory more often than in practice.68 How were commandants to distinguish between those whom they could punish summarily and those who could claim some legal protection ? How were they to impose collective punishments on groups of people with distinct statuses? The self-interested pragmatism of commandants aside, the aspirations of Africans with subject status, and notably e volue s, caused the issue of exemptions to surface again and again, whether pushed by dissidents or by reformers in Dahomey, Paris, and Dakar.69 In the words of the Minister of Colonies in 1924, such individual exemptions represented a kind of promotion to a superior social state ,70 one usually oered at least in principle in exchange for service to the colonial state. They were to be celebrated ; years later, Dakar urged commandants to deliver newly created red booklets of exemption directly to their recipients in public ceremonies conducted with a certain pomp .71 Yet what did such a promotion entail ? Neither citizenship nor anything like it, but rather the privilege for oneself and ones wives and children of being subject to judicial rather than administrative repression .72 The same oenses identied in the indige nat those which only a native could commit still obtained, but the certicate of exemption obliged a commandant to bring his complaints before the tribunal, over which, of course, he presided. Former soldiers (tirailleurs) had gured among the very rst to be exempted, in January 1918, and their collective exemption had sparked serious disagreement between dierent levels of the administration. Commandants in rural cercles howled that a too-liberal central administration had eectively disempowered them,73 while in 1920 the Governor-General, Martial Merlin, aware of the breach that the tirailleurs exemption had opened, began to ponder the idea of abolishing the indige nat altogether in favor of police courts ` ne). His project became a dead for natives (tribunaux de simple police indige letter.74 Instead of abolition, an odd compromise seems to have emerged. The law exempting veterans from the sanctions of the indige nat gradually came to be disregarded in practice,75 even as it was rearmed in 1924, when
68 On colonial dierence, see P. Chatterjee, The Nation and its Fragments : Colonial and Postcolonial Histories (Princeton, 1993), 10, 1624. On British anxiety over maintaining distinctions within regimes of coercion, see Steven Pierce, Punishment and the political body: ogging and colonialism in northern Nigeria , Interventions, 3 (2001), 20621 ; and Crowder, Flogging. 69 On Dahomey, see Buell, Native Problem, I, 1017, citing Les Continents, Quelques re vendications dahome ennes , I, 8 (1 Sept. 1924). See also DAPA, Note pour M. le GGAOF, re. voeux emprime s par les populations du Dahomey a ` la mission parlementaire , 28 Dec. 1937, no. 3106/AP/1, ANS 17G97 ; and Manie ` re, 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 lindige nat . 73 G. Mann, Native Sons : West African Veterans and France in the Twentieth Century (Durham, NC, 2006), 702. 74 M. Merlin, GGAOF to Minister of Colonies, n.d., unnumbered (draft) ; Procureur Ge ne ral AOF to GGAOF, 24 April 1920, unnumbered ; GGAOF, Circular, 22 May 1920, no. 49; all from ANS 11D3/0039. 75 Commandant de Cercle (CdC) Koutiala, Rapport Politique, 4 trim., 1921, ANM IE23FR.

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the circle of exemption was widened to include chefs de canton, school graduates, and licensed merchants, among a few other narrow social categories.76 Following veterans exemption, the relationship between native status and categories or individuals would grow increasingly complex. An entire spectrum of political and social statuses would eventually emerge in relation to the indige nat, a mode of governance whose time had not yet passed.77 In a series of decrees issued from 1929 to 1936 that applied at various times to the dierent territories of the AOF, West African women and children younger than 16 were excluded from the indige nats sanctions. One could interpret this reform to mean that womens political integration preceded, or in the case of voting rights was simultaneous with, that of men who were subjects.78 Women across the AOF only became immune from the summary sanctions associated with the indige nat (peines de simple police) in December 1936, having at dierent times been exempted from corporal punishment, imprisonment, and nally nes.79 Yet their exemption was never absolute (and indeed applied only to the punishments, not the oenses themselves). Within a few years, Dakar responded to the demands of commandants by suggesting that, for any action involving public hygiene, the production and consumption of food, or the authority of an administrators convocation, women would once again face the threat of administrative sanctions.80 The following year saw another derogation from the exemption of women: they could now be ned for refusing to accept French currency, particularly bills.81 The waxing and waning of such exemptions caused confusion among administrators themselves, not least because many decrees were quite narrowly applicable to particular locales. In a urry of paperwork, commandants and governors sought greater clarity where could women be imprisoned, and
Asiwaju, Control , 53 ; see also Buell, Native Problem, I, 1017. Far from being abolished, the indige nat regime was extended to the mandated territory of Cameroun in 1924. It had been instituted in Togo in 1917 : Buell, Native Problem, II, 314, 37992. 78 It is remarkable that such a major reform has garnered so very little attention from historians. Brief mentions of this reform oer conicting dates: 1924 in Conklin, Mission, 31011; cf. Buell, Native Problem, I, 1017 ; 1934 in Cohen, Rulers, 119; or, in some archival documents, 1935, e.g., DAPA, HCAOF, 3 May 1941, no. 1197/AP/2, ANS 17G97. For correct dates, see GGAOF to Minister of Colonies, 18 Dec. 1936, no. 1929, ANS 17G97 ; Rougier, Note sur lindige nat ; GGAOF, T. L. Circular to Governors, 10 Nov. 1942, no. 998, ANS 17G168. See also Manie ` re, Code, 371. On women in the AOF in this period, see G. Lydon, Women, children and the Popular Fronts mission of inquiry in French West Africa , in T. Chafer and A. Sackur (eds.), French Colonial Empire and the Popular Front (New York, 1999), 17087 ; G. Lydon The unraveling of a neglected source : a report on women in francophone Africa in the 1930s , Cahiers tudes Africaines, 37 (1997), 55584 ; and M. Rodet, Genre, coutume, et droit colonial dE tudes Africaines, 47 (2007), 583602. au Soudan Franc ais (19181939) , Cahiers dE 79 GGAOF to Minister of Colonies, 18 Dec. 1936. Note that a decree of 12 May 1934 had exempted women in most, but not all, of the federation from the sanctions of the 80 indige nat. 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.
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where could they only be ned? In which subdivisions of which particular cercles of Niger did the indige nat continue to apply, and to whom ?82 Did the indige nat apply to colonial subjects in Dakar and the other towns known as the Four Communes? Even the local administration mistakenly believed that it did not, and the metaphor of conquest could hardly be used to justify the policing of a well-established colonial capital with an enfranchised population, but in fact the indige nat did apply to non-citizens there as elsewhere. It had simply never been put to use. Rather than either enforcing or abolishing the indige nat in Dakar, the citys administrator suggested that there was some political advantage in maintaining its indeterminate status.83 Throughout the 1930s, as the granting of exemptions became more common, the logic of the indige nat became more convoluted, and the inadequacies and inconsistencies of the entire system increasingly apparent. Other groups tried and failed to obtain recognition of their collective claims to special status. African Christians, for instance, demanded exemption, based on the logic that as Christians they were no longer native . If their civil status (statut personnel) in family law cases was no longer customary but Christian , and if they were no longer subject to the judgments of chiefs, they argued, then their relationship with the administration should also change.84 In spite of such skirmishes around categories of exemption, historians have more often focused their attention on the relationship between individuals and the indige nat or, more accurately, its inverse, citizenship. Although only a very small elite ever attained French citizenship as opposed to acquiring it through birth in one of the Four Communes of Senegal most of those who did requested it in exchange for some particular service they had rendered to the colonial state.85 The revision of 1924 had allowed for the possibility that exceptional or worthy individuals of in` ne status might be granted an exemption from disciplinary punishdige ments, but such exemptions were slow in coming. A decade later, the rhythm of exemptions would increase, reaching a tempo of 400500 individuals (and by extension their families) per year from 1934 to 1938.86 In a colonial federation of some 15,000,000 people and bearing in mind that, by his own estimate, some 4,200,000 continued to live under the unreformed code of 1887 Dakars Director of Political Aairs was rather optimistic in arguing that, at such a rate, a signicant part of the population would soon be exempt.87 One can see the eects locally. In San in 1935, no one enjoyed this type of exemption. In 1936, however, the commandant proposed exempting ve men of particular use to the colonial administration two were chefs de quartier (chiefs of a neighborhood or ward) in San, one was a scion of one of the towns ruling families, one a loyalist in the Volta-Bani revolt of
See Extrait du Rapport dInspection Coste du 1 fe vrier 1938 , ANS 17G97. Administrateur en Chef des Colonies, Administrateur de la Circonscription de Dakar et De pendances to GGAOF, DAPA, 14 Jan. 1937, no. 107 AG, ANS 17G97. 84 Governor-General Brevie , Les missions chre tiennes et la socie te indige ` ne , 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 lindige nat .
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191516, and one man who had completed the pilgrimage. As far as the records indicate, for the next ten years, until the abolition of the indige nat, those men were the only individuals to be so recognized in a cercle of some 148,000 people. Thus, in the West African colonies of the empire of law, to be subject to law was an exceptional achievement.89
REFORM

Like the modern prison, the indige nat always existed alongside the idea of its reform. And like those whose status it described, the indige nat was always subject to evolution.91 In 1924, a major revision to the regime diminished the severity of punishments that could be exacted, but it notably excluded the areas of the AOF that were considered to be still in a semi-barbarous state : these comprised almost the entire federation and certainly the vast majority of its population.92 The same revision had begun to exempt categories of people. From 1936 to 1938, the Popular Front scrutinized the indige nat once again, although a move to reconsider the code was already under way and had provoked the handful of exemptions discussed above. The GovernorGeneral of the AOF and the Governor of Soudan sought the opinions of the commandants, and the response of F. H. Troupeau, then Commandant of San, merits quoting at length :
[At] the end of my career, I obviously will not change my opinion on the indige nat, which I have always considered an abuse of administrative authority. Any constraint to liberty, and thus any prison sentence however insignicant 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 completely separated from the administration [pouvoir administratif], since no one can be judge and litigant at the same time. Thus I am not only in favor of the abolition pure and simple of the regime of the indige nat, but also for the reorganization of the criminal tribunals [tribunaux re pressifs, over which the commandant presided]. And if I argue that one can make oneself obeyed without recourse to the regime of the indige nat, it is because I myself have never made use of it. It is true that I have rarely served as a Commandant de Cercle [but] in 1930 I made much the same response when I was the administrator of the cercle of Fada (Haute Volta), where I

90

88 CdC San, Etat nominatif des indige ` nes du cercle propose s en vue de be ne cier des dispositions de larticle 5 du de cret du 15 Novembre 1924 sur lindige nat , n.d. (1936), ANM 2M170FR. Governor, Soudan Franc ais (GSF) to GGAOF, DAPA, 29 Sept. 1936, no. 2078AP, ANS 17G79. On the Volta-Bani war, see Saul and Royer, West African Challenge. 89 90 See also Shereikis, Law. Foucault, Discipline. 91 Manie nat in Dahomey from 1887 to 1946 ; ` re counted 94 texts regulating the indige these included 15 decrees, 27 administrative orders, and 40 circulars for the AOF, in addition to those particular to Dahomey : Manie ` re, Code , 13, n. 19. To these must be added an enormous volume of correspondence between various levels of the administration seeking greater precision on the practice and theory of the indige nat. 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 Co te dIvoire. In other words, Senegal was the only colony to experience reform across the entirety of the territory. See Buell, Native Problem, I, 1019, n. 60.

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

Troupeaus response was unique. Eight of his colleagues argued that the indige nat should not be reformed at all, while an equal number pressed for moderate reform.94 It is clear from Troupeaus tone that he expected to nd himself in the minority. Few administrators of his time wrote frankly of color as an important dividing line in colonial society, at least not in ocial correspondence. Not many more would have relished greater scrutiny of the way that they and their colleagues exercised power. Moreover, Troupeau raised the stakes of the inquiry considerably when he suggested the reform of the tribunaux re pressifs by which the commandants sat in judgment on charges that 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 Popular Front regime had a great eect on the exercise of the indige nat, at least on the ground. In an article on the Popular Front in Guinea, Michel Brot recognized a decline in the frequency of incarceration between 1937 and 1940, but argued that this was an eect of good harvests and high prices for agricultural commodities: better able to pay their head taxes, fewer people wound up in prison.95 In San, on the other hand, the number of people imprisoned rose steadily, doubling twice in the late 1930s, including under the reform-minded Troupeau and during the Popular Front.96 However, although people detained under the indige nat were housed in separate sections of colonial jails,97 it is impossible, from available records, to disentangle prisoners sentenced under criminal law from those being punished under the indige nat. While Sans prisons were packed, in Paris and in Dakar further change was on the horizon. In the last years of the Third Republic, administrators sought to rene a colonial practice that would become more repressive before coming to an end. The Popular Fronts Governor-General in Dakar, Marcel de Coppet, moved to reform the indige nat gradually and, in consultation with his subordinates across the AOF, by changing the status of particular territories of the AOF and by accelerating the extension of individual exemptions. After the fall of the Popular Front, the advent of the Second World War re-opened the question of whether or not categories of people would be exempted. A decree of 19 April 1939 assigned veterans and ex-tirailleurs to
F. H. Troupeau, CdC San to Lieutenant-Governor, Soudan Franc aise, 14 March 1937, no. 107, Response to note no. 69/AP, 27 Jan. 1937 and circular of GGAOF, no. 777 AP/2, ANM 2M170FR. 94 F. Rougier, GSF, Circulaire , 17 June 1937, no. 1288 AP, ANM 1E002FR. Other sources state that support for the indige nat was unanimous, meaning that it was widespread indeed : see Cohen, Rulers, 11920. 95 M. Brot, Did the Popular Front have any signicant impact in Guine e?, in Chafer and Sackur, French Colonial Empire, 188202. 96 ANM 2M106FR. Note that available gures represent the number of people held at the end of each year, and not the total number of people incarcerated over its course. 97 Cercle of Sikasso, Rapport annuel sur la justice indige ` ne, anne e 1941 , ANM 2M170FR; F. Bernault, The politics of enclosure in colonial and post-colonial Africa , in F. Bernault (ed.), A History of Prison and Connement in Africa (Portsmouth, NH, 2003), 1920.
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French criminal courts, which could exclusively apply the French penal code and metropolitan regulations. Some veterans applauded the 1939 decree,98 while commandants were hardly enthusiastic.99 By 1941, ex-tirailleurs once again lost their particular legal status, enabling the heightened repression of the Vichy and Free French years.100 The idea that ex-tirailleurs and others who had served France should have some kind of particular legal status remained an important one throughout the war. At the imperial conference at Brazzaville in January and February 1944, General Charles de Gaulle spoke of creating a new category of privileged colonial demi-citizens who would enjoy a political status somewhere between that of the subject and that of the citizen. Although no immediate action was taken, two years later and in the aftermath of the war, the variety of forms of political belonging in the French empire had expanded dramatically. A new electorate included veterans and members of certain other select categories ; its ranks would expand considerably over the next decade.101 Under the Fourth Republic, exemptions of individuals or social categories suddenly became moot as former colonial subjects saw that status abolished in favor of the extension of an ill-dened citizenship in the French Union.
ABOLITION

If, in 1946, France was oering a new bargain to its imperial subjects and African politicians in Paris were working to sweeten its terms, commandants in West Africa were far from being uniformly supportive of the new regime. Reforms enacted in the months before the nal abolition of the indige nat were simply ignored by some local administrators, who continued to detain people and inict heavy nes in spite of ministerial orders to the contrary.102 In San, the commandants adjoint (the deputy or petit commandant) undertook a tour to the cercles rural markets to explain the new political arrangement and its meaning, but he did not make explicit one of the most signicant changes, the end of the indige nat. Neither, of course, did he point out that two of the key provisions of the new system the abolition of the indige nat and of forced labor were not simply granted by France, but fought for by African parliamentarians.103
Les anciens combattants noirs dAOF manifestent leur attachement a ` la France , Journal de Rouen, 1 May 1939, Centre des Archives dOutre-Mer (Aix-en-Provence, France), Agence de la France dOutre-Mer (Agefom), 389 13/b. 99 R. Cazenave, CdC San, Rapport annuel sur la fonctionnement de la justice indige ` ne, 1939 , 29 Jan. 1940, ANM 2M106FR. See also his Rapport annuel for 1940, 31 Dec. 1940, ANM 2M106FR; Mann, Native Sons, 11116. 100 R. Cazenave, CdC San, Rapport annuel sur la fonctionnement de la justice indige ` ne, 1941 , 16 Jan. 1942, ANM 2M106FR. 101 By 1951, these would include civil servants, religious leaders, those literate in French or Arabic, members of the Chambers of Commerce, and mothers of two children : V. Thompson and R. Adlo, French West Africa (Stanford, 1957), 58. 102 De Benoist, LAfrique, 523. 103 Adjoint Mader, Rapport de tourne e, 21 Oct. 1946, ANM 1E38FR. On texts abolishing the indige nat, see n. 11 above. A law of 11 April 1946, known as the Loi Houphoue t-Boigny , abolished forced labor. On its political impact, see F. Cooper, Conditions analogous to slavery : imperialism and free labor ideology in Africa , in
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Such a subterfuge was not available to the feared Governor Edmond Louveau two years later. When he toured the towns of southern Mali to explain 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 ais and Fe of Soudan Franc lix Houphoue t-Boigny of the Co te dIvoire. Gathering crowds of up to 3,000 people in early morning, open-air marketplaces, Louveau used blunt language to illustrate the roles of the parliamentarians who made law and the role of the administration which applied it. The contortions of his speech reveal the confusion of authority engendered by its multiplication under the new constitution, the absence of a shared understanding about what law meant, and, most of all, the profound transformation in political power caused by the abolition of the indige nat :
Im going to explain to you how the French constitution works What I am saying is not politics. The administration is not political. We are here to apply the law and the law is the same for everyone : all French citizens, they [Konate and Houphouet-Boigny] and I alike, are equal before the law ; whatever their political party or their skin color, all French citizens are equal before the law. Its the law that creates custom, its the law that commands everyone. The law is made in Paris by bringing together all the deputies from here and from the metropole [and from] wherever the French ag ies, 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 makes his 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 government here is the administrator. The Chamber of Deputies is like the Council of Notables, and the Administrator is like the Chef de canton. Do you understand ?104

Apparently the answer to Louveaus question was no . What Louveau and Clement hoped to get across in their windy speeches, people in Soudan interpreted with thousands of individual acts of rural rebellion, demonstrating that the balance of power among the new political parties, the administration, the chieftaincy, the judiciary, and themselves was not at all clear.105 Troubled administrators particularly those of the old school then set out to prove that they remained in command, and that imperial reform did not necessarily mean a change in everyday practice in the colonies. Formulated in Paris and Dakar, the abolition of labor requisitions and the end of the indige nat did not have immediate eect in Soudan. The gap broadened between colonial practice and imperial theory, seen here in the
F. Cooper, T. Holt, and R. Scott, Beyond Slavery : Explorations Of Race, Labor, and Citizenship in Postemancipation Societies (Chapel Hill, NC, 2000). On the context of Maders tour, see Mann, Native Sons, 11921. 104 Rapports de tourne e du Gouverneur Louveau, Tourne e Sud et sud-est, Nov. 1948 , ANM 1E94FR. This particular speech was actually delivered in Dioila on 20 February 1948. The text is presented as being the literal translation from the shorthand . 105 See for example, Mader, Rapport de tourne e ; CdC San, Rapport sur la justice, anne e 1947 , 28 Feb. 1948, ANM 2M106FR; G. Mann, Fetishizing religion : Allah Koura and French Islamic policy in late colonial French Soudan , Journal of African History, 44 (2003), 26382.

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form of a spectrum of political statuses whose continuing expansion had been reversed. The end of the indige nat meant a new uniformity in political status within and between West African communities. But neither its demise nor the abolition of forced labor meant the end of coercion and arbitrary exactions or the advent of an empire of law.106 In San, the majority of the administrations buildings were constructed in 1947 using forced labor, immediately after the indige nats abolition and in the lag before that laws ultimate eect.107 The man responsible for that construction, Rocca Serra, was the same commandant who, while posted to Ke -Macina, had people slapping the water at night to quiet the frogs. Stricken with a liver cancer that would soon be fatal, he seemed to regard the end of the indige nat as a problem to be overcome. His successors and his aggressive deputy, Clement, would ght a long and bitter battle against the US-RDA and its supporters for supremacy in the town of San and its hinterland, while Rocca Serra died in Bamako. It would be too much to say that the death of one commandant represented the passing of an old order and Rocca Serra had softened since his days in Ke -Macina108 but in his eyes, and those of many of his peers, the abolition of the indige nat represented an abdication of authority. It introduced a distinction between administrative and judiciary authority, which
the African has not understood Seeing that the power to sanction no longer belongs to the man who had the power to command, he has concluded that authority itself is weakened. Thus the expression fanga bana, authority no longer exists , [in which] the power to command is associated with the power to punish.109

With the end of the indige nat, a long period in which power emanated from a central gure, the commandant, rather than from laws or institutions a period of virtually pre-modern sovereignty in colonial rule came to a close. From that moment, the gardes also witnessed a decline in their coercive power. Interpreters, who in many cercles maintained the prison registries that would allow them to control the duration of a subjects detention, lost inuence as well.110 Clements generation of administrators had to nd other ways to pursue their administrative and political objectives. They encountered a new scenario, a shift to a system in which a government of wide 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 torn from it, and send anyone ( a functionary or anyone else!) to prison for a fortnight, after which the unlucky prisoner might be told, this was a warning .111 If governmental rationality or a regime of governmentality
On labor, see Fall, Travail force , 27990. Interview with Gaoussou RDA Konate , San, 24 March 1999 ; Rapport de tourne e du Gouverneur [Louveau] du 19 au 25 fe vrier 1947 , and Rapport de tourne e du Gouverneur [Louveau] juillet 1948 , ANM 1E094FR. 108 Interview with Bakari Kamian ; interview with Moussa Doumbia, San, 27 July 109 2002. Rocca Serra, Rapport sur la justice . 110 E.g., Cercle of Sikasso, Rapport annuel sur la justice indige ` ne . 111 Interviews with Amadou The ra, San, 2 July 1998 and 1 Aug. 1998. The ra himself became a commandant in post-colonial Mali ; the very term commandant remained in ocial use in Mali until quite recently, when prefet (prefect ) replaced it.
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seeking to regulate the conditions of life of populations ever properly arose in French West Africa, it did so in this period after the end of the indige nat and not before.112
CONCLUSION

It is sorely tempting to connect the practices of rule enabled by the indige nat and the kind of arbitrary police powers exercised by commandants and gardescercle to the type of authoritarianism and small-scale government violence that has aicted too many African states since independence.113 Indeed, it is hard not to see traces of colonial governance particularly a predilection for emphasizing individual authority over legal institutions in any number of the newly independent regimes of the 1960s and 70s and their successors. The indige nat gave legal standing to the local despotisms of colonial commandants and created a culture of commandement and fear that continued to inect post-colonial African political culture and relations between citizens and agents of the new states.114 However, the analytical leap from the indige nat to the often seemingly arbitrary violence of some African postcolonial states or to the rise of military regimes115 is a perilous one for several reasons. Not least of these is the fact that colonial violence enforced a certain kind of exclusion, that of the native who would remain a subject (or who had not yet achieved exemption). Post-colonial violence and threats of violence, on the other hand, were frequently (and paradoxically) designed to force participation in new political communities dubbed republics, which were grounded at least rhetorically in emerging principles of citizenship and equality. The true signicance of the indige nat can be fully captured neither by the everyday intimidation it enabled as vital as that is for understanding the history of colonial rule nor by the development of a set of reforms and an evolving spectrum of political memberships around it even if these may have engendered aleatory legal practices and a complex multiplicity of political statuses that post-colonial governments often perpetuated.116 The indige nat was at the very core of the exercise of colonial power in the AOF. Within the administration, it enabled the ction that institutions and procedures prevailed over individuals and practices that administrative capitals controlled commandants and their agents. Its very existence, ever
Here my interpretation diers from those of Saada, Empire ; Wilder, French Imperial Nation-state ; and Manie ` re, Code . Drawing on Foucaults Discipline, rather than on his work on governmentality, Merle and Manie nat en` re argue that the indige gendered a particularly Foucaultian form of power in the French colonies : Merle, De la le nat galisation ; Manie ` re, Code . I nd this argument dicult to accept: the indige was not so subtle a regime as to inculcate an internalized discipline or to serve as an instrument of micropower . On governmentality, see M. Foucault, Governmentality , in G. Burchell, C. Gordon, and P. Miller (eds.), The Foucault Eect : Studies in Governmentality (Chicago, 1991), 87104. 113 Here Mamdani (Citizen) and Mbembe (Postcolony, ch. 1, esp. 25, 312) agree. 114 Mbembe, Postcolony, ch. 3 ; see also I. Ly, Toiles daraigne es (roman) (Paris, 1982). 115 Manie ` re, Code , 432. 116 ce amnistiante : recueil de textes de la See Dao Rokiatou Coulibaly, Amnistie et gra ` ne a ` nos jours (Bamako, 1996) ; Mamdani, Citizen. Re publique du Mali de la justice indige
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entwined with its own reform, allowed the colonial state to practice a form of government grounded in dierence and coercion while maintaining a republican rhetoric of assimilation and eventual inclusion. For much of the colonial period, and indeed beyond it, those two bright promises attracted the gaze of colonial elites, anti-colonial activists, and historical analysts alike. The empire of law did the same. Meanwhile, like a black hole, the indige nat generated obscurity and ordered the space around it.