What was the indigénat, 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 indigénat – 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.Footnote 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.Footnote 2 Second, until its abolition in 1946, an ever-expanding and contracting spectrum of political statuses, exemptions, and privileged categories developed around the indigénat in both meanings of that term – the regime of sanctions and the status of the native (indigène). This spectrum is potentially more revealing and surely no less significant than one of its poles taken alone, namely the narrow category of colonial citizens on which a rich literature exists.Footnote 3 Indeed, susceptibility to or exemption from the indigénat represented both marker and motive for the proliferation of political statuses in French colonial Africa. Third, attention to the workings of the indigénat 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.Footnote 4 Rather than traversing an analytical terrain of which agency and structure mark the coordinates and law the terra firma,Footnote 5 or invoking the indigénat as anti-structure,Footnote 6 I place it at the center of an analysis of the ‘colonial situation’,Footnote 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 difficult to peer but which defines the space around it.
WHAT WAS THE INDIGÉNAT?
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 indigénat was first established in Algeria in 1881.Footnote 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.Footnote 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. Offenses, on the other hand, and however loosely defined, were met with arbitrary, albeit limited, sanctions at the discretion of local commandants, who could jail, fine, or bind people.Footnote 10
Thus, in spite of a complex system of courts and colonial justice – an oxymoron one should not allow to become naturalized – the indigénat provided legal cover, however scant, for colonial coercion until after the Second World War. In 1946, the indigénat finally 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.Footnote 11 A parliamentary assault led by newly elected African parliamentarians such as Lamine Guèye, Félix Houphouët-Boigny and their allies delivered the coup de grace. Along with the very status of colonial subject (a phrase also captured by the term indigénat), 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 indigénat had enshrined administrative power and ensured that colonial administrators – particularly commandants – could inflict 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 administrator's sleep, the indigénat was at work.Footnote 12 In 1932, when an African auxiliary (garde-cercle) stuffed recalcitrant taxpayers into a small dwelling in which ten of them would suffocate, it was the indigénat that originally provided legal justification for his actions.Footnote 13 And 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 offense punishable under the indigénat.Footnote 14
The term ‘indigénat’ 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.Footnote 15 The indigénat 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 1912.Footnote 16 Thereafter, the indigénat served to protect administrative authority, of which chiefs were considered mere ‘representatives’.Footnote 17 It never relied on the fiction of custom. Moreover, just as ‘customary’ law itself was not necessarily customary, this ‘Native Code’ was neither ‘native’ in origin nor truly a code.Footnote 18 Mahmood Mamdani may have best captured the sense of the indigénat in writing that ‘it crudely and brazenly put on the law books as rules the gist of day-to-day practice in the colonies’.Footnote 19 While Mamdani is not entirely correct – the indigénat marked limits rather than rules – his point on day-to-day practice is entirely accurate, and goes a long way towards explaining why successive generations of commandants battled fiercely with their administrative superiors to preserve the powers with which it provided them.
The indigénat defined the very status of ‘native’ on which colonial rule relied and, as a ‘code’, it listed offenses that ‘by definition only “natives” could commit’.Footnote 20 Thus, the indigénat was ultimately both a set of sanctions and a colonial state of being.Footnote 21 The 1924 revision of the indigénat enumerated twelve offenses, reduced from fifty 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 circulationFootnote 22
and so on. Future revisions would continue to whittle down or ratchet up the number and quality of offenses 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 affronts to colonial prestige’.Footnote 23 Rather, the question of what constituted an ‘affront’ remained vague. In other words, in the AOF the reduction in the number of offenses did not represent liberalization or rationalization but an entrenched arbitrariness. The indeterminate nature of the indigénat – neither law nor its opposite – served to realize the dual and contradictory imperatives of assuring an expansive and rapid field of ‘action’, so cherished by commandants and their champions,Footnote 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 field.Footnote 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 indigénat but was a fundamental part of it.Footnote 26 Examining the indigénat closely tells us a great deal about the shifting theories and practices of French colonial rule. It can do more than that, however, for the very existence of the indigénat, 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.Footnote 27
AN ‘EMPIRE OF LAW’?
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.Footnote 28 And yet there is an impasse in scholarly writing on law in the colonial context. Law is a culprit for some,Footnote 29 a neutral agentFootnote 30 or form of structure for others.Footnote 31 Such characterizations may give rise to elegant arguments, often placing property and exchange at the core of their analyses.Footnote 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 but was unthinkable in the imperial metropole.Footnote 33 Attention to the indigénat 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 indigénat had until quite recently rarely been the subject of concentrated study,Footnote 34 and it remains poorly understood by historians of Africa and of French colonialism.Footnote 35 Over 25 years ago, A. I. Asiwaju sought to demonstrate the significance of the indigénat for the elaboration of French imperial practice and argued for the importance of its decline. I concur with Asiwaju that the indigénat 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 lowest possible cost. Yet Asiwaju's 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 indigénat represented the ‘resuscita[tion] of the essential characteristics of “the Reign of Terror” of [French] history’,Footnote 36 the violence it enabled was ultimately intended to increase economic production. However, the contradictions of the indigénat elude such ready analysis. In fact, under the Vichy regime, administrators in Dakar explicitly forbade the use of the sanctions recognized by the indigénat to punish those who refused to produce non-edible crops destined solely for export.Footnote 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.Footnote 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.Footnote 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 indigénat 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.
PRACTICING THE INDIGÉNAT
It is difficult to approach the indigénat 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 indigénat's demise, suggests that the 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.Footnote 40 Yet that very language of reform must be understood as a fundamental element of the object of study, the indigénat, 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.Footnote 41
By their very nature, traces of the indigénat 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.Footnote 42 Before the 1940s, many villages rarely if ever witnessed the visit of a colonial administrator of any rank, and even the gardes-cercle were scarce. Yet the institutionalization of rural violence under the indigénat fell largely to the account of these men, known in parts of Mali as the gardiké 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 flagellated men who were late to attend the state-run cotton market; gardes seeking taxes and fugitives would whip shrouded corpses to ensure that the figures inside were dead and to humiliate the living.Footnote 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 indigénat, 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.Footnote 44
If the indigénat 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, 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.Footnote 45 For these men, in the approving words of an administrator in Guinea, the indigénat served as ‘a procedure of intimidation’.Footnote 46 Whether in the capital of a cercle or while engaged in ‘the art of going on tour’Footnote 47 in the bush with an escort of gardes, commandants – with few exceptions – greatly prized the power that the indigénat 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 indigénat.Footnote 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 efficiency made their power appear unconditional.
Colonial administrators frequently referred to the indigénat as a necessary holdover from the period of conquest.Footnote 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 firsthand represented a form of resistance to a professionalized, future-oriented, and self-consciously modern faction that was increasingly influential within the administration. The use of the metaphor suggested, of course, that their continued reliance on the indigénat 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 first time, San's commandant had a car. Newly enabled to carry out multiple tours of inspection and inquiry, Commandant Gauthier took it out as many as three times a week in the first 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.Footnote 50 Demands for production were more stringent than ever before – certainly more aggressive than under Vichy (1940–42) – 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.Footnote 51 Along with the car came another increased demand: road maintenance. The corvée regime that had long relied on the labor of those imprisoned under the indigénat intensified, 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.Footnote 52 In other words, the new means of rapid transport did not result in greater transparency or administrative rationality (for instance, by taking offenders 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 offenses and punishments was mandated within the administration,Footnote 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.Footnote 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 effort at ‘reform’ of the indigénat was therefore devoted to attempting to control commandants and other colonial agents.Footnote 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 offenses and released;Footnote 56 instead, they represented attempts to assert central control that were effectively doomed to fail.
The failure of central control can be seen in the phenomenon of the particular punishment known as contraint par corps fixé (‘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 fixed period of time or until their taxes, fines, or debts had been paid off. Some inflicted this punishment in combination with imprisonment or fines. In some instances, such constraint effectively 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 office of the Governor of Soudan Français had remonstrated with one of the colony's commandants, insisting that constraint was intended to be imposed only by tribunals and under certain conditions, and solely to force the payments of fines or debts.Footnote 57 There was clearly no consensus on such limits. The tribunal of the cercle of Bamako sentenced people to be jailed and bound for offering verbal opposition to military recruitment,Footnote 58 and in San the commandant expanded upon the powers granted him by the indigénat – and not under the law – to have people bound for charges ranging from insubordination to preferring cowries over francs in a marriage payment.Footnote 59
Given the intensity of the struggle for control that reform of the indigénat represented, it is no surprise that, in practice, the gamut of offenses 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 indigénat in the mid 1930s were related to taxation and labor requisition,Footnote 60 yet these were not the sole offenses leading to the exercise of the indigénat. Peasants could be jailed or sanctioned for neglecting any number of orders, included planting too few peanuts, failing to cultivate castor-oil 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 fifth of the acts sanctioned under the indigénat in San from 1941 to 1944 were even loosely related to taxes (nor did all the punishments take the form of fines). Nearly as many related to refusal to obey the orders of colonial officials, ranging from gardes-cercle to the commandant himself.Footnote 61 Demonstrating ill will or refusing to respond to the convocation of a canton chief or a garde regularly led to jail sentences and fines. Thus it would seem that in San in the early 1940s, at a moment when extraction was acute, the indigénat 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.Footnote 62 In 1921, a commandant on tour in a rural canton had inflicted identical penalties on as many as 15 men from one village at the same time.Footnote 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 Français, plus ils sont faibles, plus ils sont exigeants].’Footnote 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 fines.Footnote 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.Footnote 66 In the 1940s, planting the wrong strand of cotton, or even hoeing a cotton field poorly could result in sanctions inflected on a collectivity rather than any individual.Footnote 67 Such collective punishments, however, relied on a central proposition: that the population of a village or collectivity shared some uniform legal or juridical status. There could be no indigénat without indigènes, 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 efforts to reform the indigénat by extending exemptions from it, whether to particular individuals or to entire social categories of colonial subjects, such as women. Not only was the indigénat 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 in theory more often than in practice.Footnote 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 évolués, caused the issue of exemptions to surface again and again, whether pushed by dissidents or by reformers in Dahomey, Paris, and Dakar.Footnote 69
In the words of the Minister of Colonies in 1924, such individual exemptions represented ‘a kind of … promotion to a superior social state’,Footnote 70 one usually offered – 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’.Footnote 71 Yet what did such a promotion entail? Neither citizenship nor anything like it, but rather the privilege – for oneself and one's wives and children – of being subject to ‘judicial’ rather than ‘administrative repression’.Footnote 72 The same offenses identified in the indigénat – those which ‘only a native could commit’ – still obtained, but the certificate of exemption obliged a commandant to bring his complaints before the tribunal, over which, of course, he presided.
Former soldiers (tirailleurs) had figured among the very first to be exempted, in January 1918, and their collective exemption had sparked serious disagreement between different levels of the administration. Commandants in rural cercles howled that a too-liberal central administration had effectively disempowered them,Footnote 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 indigénat altogether in favor of police courts for ‘natives’ (tribunaux de simple police indigène). His project became a dead letter.Footnote 74 Instead of abolition, an odd compromise seems to have emerged. The law exempting veterans from the sanctions of the indigénat gradually came to be disregarded in practice,Footnote 75 even as it was reaffirmed in 1924, when the ‘circle of exemption’ was widened to include chefs de canton, school graduates, and licensed merchants, among a few other narrow social categories.Footnote 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 indigénat, a mode of governance whose time had not yet passed.Footnote 77
In a series of decrees issued from 1929 to 1936 that applied at various times to the different territories of the AOF, West African women and children younger than 16 were excluded from the indigénat's sanctions. One could interpret this reform to mean that women's political integration preceded, or in the case of voting rights was simultaneous with, that of men who were subjects.Footnote 78 Women across the AOF only became immune from the summary sanctions associated with the indigénat (peines de simple police) in December 1936, having at different times been exempted from corporal punishment, imprisonment, and finally fines.Footnote 79 Yet their exemption was never absolute (and indeed applied only to the punishments, not the offenses themselves). Within a few years, Dakar responded to the demands of commandants by suggesting that, for any action involving public hygiene, the production and consumption of food, or the authority of an administrator's convocation, women would once again face the threat of administrative sanctions.Footnote 80 The following year saw another ‘derogation from the exemption’ of women: they could now be fined for refusing to accept French currency, particularly bills.Footnote 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 flurry of paperwork, commandants and governors sought greater clarity – where could women be imprisoned, and where could they only be fined? In which subdivisions of which particular cercles of Niger did the indigénat continue to apply, and to whom?Footnote 82 Did the indigénat 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 indigénat did apply to non-citizens there as elsewhere. It had simply never been put to use. Rather than either enforcing or abolishing the indigénat in Dakar, the city's administrator suggested that there was some political advantage in maintaining its indeterminate status.Footnote 83
Throughout the 1930s, as the granting of exemptions became more common, the logic of the indigénat 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.Footnote 84 In spite of such skirmishes around categories of exemption, historians have more often focused their attention on the relationship between individuals and the indigénat – 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.Footnote 85 The revision of 1924 had allowed for the possibility that exceptional or ‘worthy’ individuals of indigène status might be granted an exemption from ‘disciplinary punishments’, but such exemptions were slow in coming. A decade later, the rhythm of exemptions would increase, reaching a tempo of 400–500 individuals (and by extension their families) per year from 1934 to 1938.Footnote 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 – Dakar's Director of Political Affairs was rather optimistic in arguing that, at such a rate, ‘a significant part of the population’ would soon be exempt.Footnote 87 One can see the effects locally. In San in 1935, no one enjoyed this type of exemption. In 1936, however, the commandant proposed exempting five 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 1915–16, and one man who had completed the pilgrimage.Footnote 88 As far as the records indicate, for the next ten years, until the abolition of the indigénat, 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.Footnote 89
REFORM
Like the modern prison,Footnote 90 the indigénat always existed alongside the idea of its reform. And like those whose status it described, the indigénat was always subject to evolution.Footnote 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.Footnote 92 The same revision had begun to exempt categories of people. From 1936 to 1938, the Popular Front scrutinized the indigénat once again, although a move to reconsider the code was already under way and had provoked the handful of exemptions discussed above. The Governor-General 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 indigénat, which I have always considered an abuse of administrative authority. Any constraint to liberty, and thus any prison sentence – however insignificant it might be, whatever the skin color of the suspect – should only be pronounced by a tribunal, and I would even say that it should be pronounced by a tribunal that is 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 indigénat, but also for the reorganization of the criminal tribunals [tribunaux répressifs, over which the commandant presided]. And if I argue that one can make oneself obeyed without recourse to the regime of the indigénat, 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 was dealing with one of the most primitive and backwards populations of the [AOF] … I have no doubts on the subject whatsoever.Footnote 93
Troupeau's response was unique. Eight of his colleagues argued that the indigénat should not be reformed at all, while an equal number pressed for moderate reform.Footnote 94 It is clear from Troupeau's tone that he expected to find 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 official 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 répressifs 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 effect on the exercise of the indigénat, 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 effect of good harvests and high prices for agricultural commodities: better able to pay their head taxes, fewer people wound up in prison.Footnote 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.Footnote 96 However, although people detained under the indigénat were housed in separate sections of colonial jails,Footnote 97 it is impossible, from available records, to disentangle prisoners sentenced under criminal law from those being punished under the indigénat.
While San's prisons were packed, in Paris and in Dakar further change was on the horizon. In the last years of the Third Republic, administrators sought to refine a colonial practice that would become more repressive before coming to an end. The Popular Front's Governor-General in Dakar, Marcel de Coppet, moved to reform the indigénat 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 French criminal courts, which could exclusively apply the French penal code and metropolitan regulations. Some veterans applauded the 1939 decree,Footnote 98 while commandants were hardly enthusiastic.Footnote 99 By 1941, ex-tirailleurs once again lost their particular legal status, enabling the heightened repression of the Vichy and Free French years.Footnote 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.Footnote 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-defined citizenship in the French Union.
ABOLITION
If, in 1946, France was offering 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 final abolition of the indigénat were simply ignored by some local administrators, who continued to detain people and inflict heavy fines in spite of ministerial orders to the contrary.Footnote 102 In San, the commandant's adjoint (the deputy or petit commandant) undertook a tour to the cercle's rural markets to explain the new political arrangement and its meaning, but he did not make explicit one of the most significant changes, the end of the indigénat. Neither, of course, did he point out that two of the key provisions of the new system – the abolition of the indigénat and of forced labor – were not simply granted by France, but fought for by African parliamentarians.Footnote 103
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 Konaté of Soudan Français and Félix Houphouët-Boigny of the Côte d'Ivoire. 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 indigénat:
I'm 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 [Konaté 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. It's the law that creates custom, it's 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 flag flies, and thus everyone is submitted to it …
If the law is broken, people are brought before the judicial system [la Justice]. The judge does not take orders from the deputies or from the governor, he 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?Footnote 104
Apparently the answer to Louveau's 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.Footnote 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 indigénat did not have immediate effect in Soudan. The gap broadened between colonial practice and imperial theory, seen here in the form of a spectrum of political statuses whose continuing expansion had been reversed. The end of the indigénat 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.Footnote 106 In San, the majority of the administration's buildings were constructed in 1947 using forced labor, immediately after the indigénat's abolition and in the lag before that law's ultimate effect.Footnote 107 The man responsible for that construction, Rocca Serra, was the same commandant who, while posted to Ké-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 indigénat as a problem to be overcome. His successors and his aggressive deputy, Clement, would fight 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 Ké-MacinaFootnote 108 – but in his eyes, and those of many of his peers, the abolition of the indigénat 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.Footnote 109
With the end of the indigénat, a long period in which power emanated from a central figure, 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 subject's detention, lost influence as well.Footnote 110 Clement's generation of administrators had to find 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’.Footnote 111 If governmental rationality – or a regime of ‘governmentality’ 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 indigénat and not before.Footnote 112
CONCLUSION
It is sorely tempting to connect the practices of rule enabled by the indigénat and the kind of arbitrary police powers exercised by commandants and gardes-cercle to the type of authoritarianism and small-scale government violence that has afflicted too many African states since independence.Footnote 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 indigénat gave legal standing to the local despotisms of colonial commandants and created a culture of commandement – and fear – that continued to inflect post-colonial African political culture and relations between citizens and agents of the new states.Footnote 114 However, the analytical leap from the indigénat to the often seemingly arbitrary violence of some African post-colonial states – or to the rise of military regimesFootnote 115 – 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 significance of the indigénat 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.Footnote 116 The indigénat was at the very core of the exercise of colonial power in the AOF. Within the administration, it enabled the fiction that institutions and procedures prevailed over individuals and practices – that administrative capitals controlled commandants and their agents. Its very existence, ever entwined with its own reform, allowed the colonial state to practice a form of government grounded in difference 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 indigénat generated obscurity and ordered the space around it.
