THE LITERATURE: CUSTOMARY LAW AND COLONIAL RULE

How customary law was articulated over the course of the twentieth century remains one of the most debated themes in Africanist historiography. A first generation of scholars has argued that the consolidation of colonial rule in early twentieth-century Africa involved the cooperation of senior African men and colonial administrators in inventing customary law, particularly marriage law.Footnote ⁸ State and patriarchy codified marriage law in order to enforce senior men's control over women and junior men. Native courts staffed by European or African senior men rigidified formerly fluid definitions of marriage and curtailed women's efforts to maintain autonomy over their marital status. A second wave of literature on law in colonial Africa questioned the idea of codified customary law as crystallizing relationships of power.Footnote ⁹ Colonial courts were not arenas in which African or European judges imposed rigid embodiments of customary law, but ‘battlegrounds’ in which husbands and wives, fathers and sons, slaves and masters, and neighbors battled to challenge or maintain relationships of power.Footnote ¹⁰ Newly created native courts in West and East Africa, scholars argued, sometimes provided new opportunities for women to leave undesired marriages.Footnote ¹¹ Even if customary law was codified, recent scholarship has argued, litigating marriage based on customary law continued to be a process rooted in competing definitions of customary marriage.Footnote ¹²

This article concurs with recent literature that African societies continued to debate customary law and maintain fluid ideas of gender roles and marriage after codification, but contends that scholars have not paid adequate attention to debates and articulations around the codification of customary law. As such, the idea that ‘African men’, ‘Big Men’, ‘senior African men’ or ‘patriarchy’ were part of undifferentiated sociopolitical groups retains credence. Years after Luise White argued for the need to study men as gendered actors, scholarship on men, masculinity and patriarchy has emerged to argue that male identities and power were in flux in modern Africa.Footnote ¹³ As argued by Brett Shadle, much of the literature on masculinity in Africa has focused on generation and intergenerational tension between junior and senior men. Yet, as Shadle contends in his research on marriage in colonial Kenya, ‘junior–senior conflict’ is not a given, as ‘the interests of all juniors and of all seniors do not always coincide’.Footnote ¹⁴ Drawing from this collective scholarship, this article argues that the varied articulations of customary marriage law in twentieth-century colonial Gabon reveal the fissures in state and patriarchal power.

CUSTOMARY LAW AND COLONIAL COURTS: THE UNEVEN ADMINISTRATION OF JUSTICE

As the French transitioned from colonial conquest to colonial rule, administrators sought to make their administration of African societies more legible by establishing systems of civil law and the adjudication of civil conflict. On paper, colonial employees established an embryonic system of justice. As early as 1897, the colonial administration in Gabon decreed that all of the colony's inhabitants were subject to the rule of law in courts administered by colonial officials.Footnote ¹⁵ Yet, in practice the administration of justice in the early years of the colony proved elusive. The colonial state had yet to achieve military control of the colony, few Gabonese living near colonial centers brought their conflicts before colonial authorities, and the small number of officials lacked the infrastructure, resources and knowledge of local politics to effectively mediate in civil disputes.

From 1910 through the 1950s, the French reorganized native justice in Gabon and French Equatorial Africa to impose social and political order.Footnote ¹⁶ Decreeing the end to concessionary rule in 1910, the French regrouped Gabon into French Equatorial Africa and divided the colony into administrative and military units called circonscriptions.Footnote ¹⁷ Only French judges, assisted by native assessors, were to mediate all civil, commercial and criminal conflicts between African subjects.Footnote ¹⁸ In 1927, the colonial court system conceded elements of indirect rule in formally incorporating African chiefs. Now assigned the role of judge–arbitrators, chiefs could reconcile parties in civil conflicts.Footnote ¹⁹ Subsequent reorganizations in 1934 and 1936 delineated a multi-tiered native court system. To lessen the frequency with which individuals brought civil disputes before colonial administrators, it was mandatory that litigants first present their case before the African judge–arbitrator for reconciliation before petitioning French administrators.Footnote ²⁰ After the Second World War, customary courts headed by African judges were to decide upon civil litigation.

The administration of justice amongst African populations brought up the crucial question of which bodies of law were to be applied. Throughout the twentieth century, the French avowed that native courts were to enforce ‘local customs, unless they proved contrary to principles of French civilization’.Footnote ²¹ However, no universal acceptance of customary law emerged. Additionally, litigants who brought matters before colonial courts asserted varying interpretations of what constituted customary law.Footnote ²² Furthermore, senior men and chiefs set up their own courts, not sanctioned by the colonial state, in villages and neighborhoods, deciding upon questions of marriage and divorce without the knowledge of colonial officials.Footnote ²³

Unlike Anglophone colonies in which many colonial states eventually established codified versions of customary law, French colonial officials were cautious of such codification. Nevertheless, by the 1920s administrator–ethnologues had compiled customary practices of many African societies in French West Africa (AOF).Footnote ²⁴ Similar efforts for French Equatorial Africa (AEF) were limited or non-existent. Colonial administration in AEF remained understaffed and underfunded in comparison to AOF. Codifying customary laws in Gabon was further complicated by the diversity of ethno-linguistic communities within the colony's borders. Gabon encompassed over fifty ethno-linguistic groups, with no single group establishing a majority, although the Fang were the largest concentration. However, after the consolidation of Gabon into AEF in 1910, the French concern about the effects on the political economy of AEF's demographic decline compelled colonial administrators to advocate the codifying of customary marriage law.

Throughout the twentieth century, African populations in the colony were decreasing.Footnote ²⁵ Florence Bernault has attributed twentieth-century Gabon's fragile demographic state to several factors of colonial rule: exploitation of human lives under concessionary rule; forced labor and porterage, particularly during the two World Wars; and periods of endemic disease and famine.Footnote ²⁶ Deemphasizing environmental factors and colonial labor practices, colonial and church representatives attributed population decrease and AEF's flagging economy to what they termed ‘the disorganization of the native family’, characterized as high divorce rates and women's sexual promiscuity.Footnote ²⁷ In 1910, under the auspices of the Anti-Slavery Society, French administrative and religious representatives conducted a survey of marriage practices throughout Francophone Africa. The authors, Maurice Delafosse, medical doctor Léon Poutrin and former Vicar of the Catholic Church in Gabon Monseigneur Le Roy, published their survey in 1930 and argued that colonial rule and economic change in Gabon had resulted in a state of social anarchy.

These ideas about African marriages, families and women were to be echoed by missionaries and colonial officials over the course of the twentieth century. Customary social control gave senior men power over women – women could not easily obtain a divorce and faced corporal punishment if they committed adultery.Footnote ²⁸ Yet, the growth of a capitalist economy and the intervention of colonial officials in mediating marital conflict had weakened African husbands' control over their wives. Colonial courts readily granted requests for divorce because they sought to ‘emancipate’ African women from forced marriages. Furthermore, the increased circulation of imported goods and cash created a veritable market for women that made it difficult for younger men with fewer resources to marry. In the mid-1800s, bridewealth for Gabonese societies along the coast consisted of bars of iron, yet by the turn of the century 60 to 75 per cent of bridewealth was composed of imported goods worth 500–2,000 francs.Footnote ²⁹ In addition to goods, bridewealth payments ranged from 2,000 to 5,000 francs by the 1930s, 3,000 to 10,000 francs in 1945, and were between 15,000 and 30,000 francs in 1955.Footnote ³⁰ Women and their kin could amass wealth by engaging in cycles of marriage, divorce and remarriage in search of higher bridewealth payments.Footnote ³¹

The ‘disorganization of the native family’, as French medical, religious and administrative representatives argued, had a grave impact also on the colonial state's economic goals. Sexual promiscuity led to diseases that decreased women's fertility, thereby resulting in population decrease and further exacerbating the labor shortage.Footnote ³² It is challenging to separate this rhetoric of African families breaking up in early twentieth-century Gabon from what conjugal–familial compositions might have been like in the nineteenth century. Little has been published on the sociocultural history of precolonial Gabon.Footnote ³³ Certainly, as Martin Chanock observed for the efforts to codify customary law in 1920s–1930s Malawi and Zambia, a combination of colonial anxiety over maintaining colonial rule and the aspirations of African men to gain more power over women and junior men fueled these discourses of the crisis of the African family.Footnote ³⁴ Yet, extant documents for the first wave of codification efforts in Gabon from 1918 to 1930 point to contestations over customary law as conflict between church and state. Missionaries romanticized customary practices as ensuring social order.Footnote ³⁵ Yet, in the first decades of the twentieth century, state administrators initially sought to diminish, not reinforce, the power of senior men. Rather, women and young men were to be allowed to enter more freely into marriages of their choice and the colonial state would oversee the enforcement of customary law.

CONFLICTS BETWEEN CHURCH AND STATE: THE FIRST WAVE OF CODIFICATION PROJECTS, 1918–1930

Between 1918 and 1925, state and church officials launched the first efforts towards codifying customary laws. As indicated by Georges Balandier, the first such project by colonial officials was launched with the 1918 Commission for the Study of Marriage and the Family.Footnote ³⁶ Church and state were in agreement: African marriage was to be a consensual alliance of a man and woman, with concise laws that regulated how the exchange of bridewealth made a relationship legally binding and limited divorce. The French argued for the need to reorganize the native family – to make marriage for young men more attainable by lowering bridewealth; to stop men who were already married from prostituting out their wives to unmarried men; to make marriage illegal for pre-pubescent girls.Footnote ³⁷ Particularly among the Fang who had migrated towards Libreville, unmanageable marriage and sexual relations were making the management of an already mobile and ungovernable population more difficult.Footnote ³⁸ French administrators viewed African communities as being in crisis due to the effects of colonial rule and were surprised by unanticipated social change in African communities.

As the French sought to draw the parameters of colonial governance and customary law, efforts towards codification brought internecine conflict between church and state to the surface. In August of 1921, the Governor of Gabon, Marchaud, convened a commission charged with codifying customary law to regulate native marriage.Footnote ³⁹ It is unclear how involved Africans were in this effort towards codification. The eleven-member commission included mostly Frenchmen: medical and administrative civil servants and representatives from Protestant and Catholic missions. The two African members, one a Fang and the other a Mpongwé, were civil servants of the colonial state.

As missionaries and state administrators drafted various versions of customary law between 1922 and 1925, they disagreed on whether church or state had the authority to determine what types of marriages would be allowable. A report by member Monsignor Matrou encapsulated the common goals of the commission: to establish immutable written laws that would ensure that all African men could find a wife and to make marriages last. Stable marriages would increase the birth rate.Footnote ⁴⁰ Yet Catholic officials viewed marriage as a spiritual contract, consecrated by priests who were intermediaries between humans and God. Colonial bureaucrats viewed marriage as a civil contract, to be first consecrated and recorded before those appointed by the colonial state. Church officials argued that polygamy should be discouraged and eventually made illegal. The church sought to add ‘liberty of consciousness’ as grounds for divorce – women could leave a polygamous marriage in order to enter into a monogamous one.Footnote ⁴¹ Colonial administrators viewed polygamy as ingrained in African practice and assumed that efforts to abolish polygamy could result in revolt. Church officials also argued that bridewealth was equivalent to the sale of women and argued for strict limits.Footnote ⁴² However, colonial administrators argued that bridewealth amounts should fluctuate to encourage African men to participate in the colonial economy.

Proposals emerging from the 1921 commission recognized the state, not the church, as the arbitrator of African marriages. A 1922 document declared French administrative officers as the only officials who could declare a marriage to be legal. The 1922 document, entitled the ‘Project for the regulation of native marriage’, declared that all marriages between Africans must be concluded before the bride's subdivision administrator.Footnote ⁴³ The subdivision administrator would maintain a register of all the marriages he witnessed and would issue two marriage certificates – one to the husband and one to the wife. In case of litigation, colonial courts would only judge marriages that had adhered to these regulations. The 1925 draft sent to the Governor-General subsequently erased the requirement that administrators witness all marriages.Footnote ⁴⁴

The commission's version of customary law sought to weaken senior men's power over women and junior men, but the state was to police African women's conjugal and sexual mobility. Drafts proposed in 1922 and 1925 defined marriage as a contractual relationship consensually entered into by men and women who had reached puberty, with fixed rules for establishing and nullifying marriage. The document also required that bridewealth be paid in cash instead of goods, and did not exceed the maximum amounts of between 150 and 400 francs depending on the region and whether the group was matrilineal or patrilineal.Footnote ⁴⁵ Colonial officials hoped that the requirement of cash payments for bridewealth would encourage men to work within the colonial economy.Footnote ⁴⁶ Modifying the practice of levirate, a widow could choose whether she wanted to remain in her husband's family or return to her own family after reimbursing the portion of bridewealth deemed just by the district administrator. Once a marriage was consecrated, the parameters within which couples could be divorced were limited.Footnote ⁴⁷ Yet, it was not disagreement between church and state that resulted in the failure of the first codification efforts, but the refusal of higher levels of administration to consider codifying customary law.

Responding to initial calls by Gabon's governor to codify laws, Governor-General Alfassa urged him to act with ‘extreme prudence’ as African societies could mutiny against the state's efforts to modify customs. Alfassa also cautioned that efforts towards codification required careful and long-term research to ensure that gathered information was accurate. Rather than creating bodies of law, the Governor-General agreed to administrators gathering ethnographic data on the customs of varied ‘tribes’.Footnote ⁴⁸ However, in 1925, Gabon's Governor sent a final proposal codifying customary marriage law to the Governor-General. In a terse response, the Governor-General rejected the document altogether, arguing: ‘This question of the reorganization of the native family is particularly delicate … We cannot resolve such a problem in a one and half page document’.Footnote ⁴⁹ Administrators at the local level of governance in Gabon were keen to enact social change, battling between church and state to determine the parameters of the civilizing mission. Church and state sought to weaken the power of senior men to determine when and whom women and junior men would marry. Yet, higher-level administrators were hesitant to legislate marriage and sexual practices, preferring to maintain a flexible and pragmatic conceptualization of customary laws as colonial personnel navigated the terrain of the law and governance in Africa. In the 1930s, local church and state officials in Gabon would again call for the need to codify customary marriage laws, but would look towards senior men appointed as chiefs to determine and enforce customary law.

INDIRECT RULE AND NATIVE CHIEFTAINCY: CODIFICATION IN THE 1930S

The years between 1929 and 1939 brought tremendous highs and lows in the colony's economy, and contestations around marriage reflected the overlapping of the political economy and sexual politics.Footnote ⁵⁰ After the First World War, a single activity came to dominate the colony's economy and impacted the lives of African societies along the coast and interior: the felling and transport of okoumé wood.Footnote ⁵¹ Nearly all economic production in African communities in Southern Gabon depended directly or indirectly on the timber industry. Camps near towns such as Libreville, Lambaréné and Port Gentil recruited thousands of male workers from interior regions.Footnote ⁵² While the expansion of the timber industry resulted in precariousness for some communities, many African households prospered.

Wage labor and the export of timber were not the only sources of wealth as African men, missionaries and colonial administrators continued to struggle over wealth-in-women. Libreville was not only a town of male migrant laborers – African men and women alike struggled over the place of women as city dwellers. African men in search of wage labor sometimes traveled with wives or entire kin groups and permanently settled in timber regions. In Libreville, the population of women in town and hinterlands continued to be nearly equal to, or exceeded, that of men.Footnote ⁵³ Yet in Lambaréné, only about one third of migrant laborers were accompanied by their wives.Footnote ⁵⁴ Contrary to the literature on African women in cities, seen as engaging only in sex or illicit work, African women who lived in Gabon's urban areas, surrounding rural areas and centers of timber exploitation engaged in a variety of economic activities.Footnote ⁵⁵ Sociologist Guy Lasserre, who conducted research in Libreville in the 1940s, estimated that 80 per cent of African women in Libreville maintained a plantation on which they grew manioc, and that the small number of women who worked in stores or offices still had plots of land maintained by sisters or other female kin.Footnote ⁵⁶ Women's agricultural labor continued to be crucial not only for sustenance, but for building wealth from the proceeds of the sale of manioc to individual consumers and timber camps. By the 1940s and 1950s, some women were beginning to work for wages in offices, schools and shops, and others took in sewing and tailoring jobs, sold prepared food from their homes, or worked as housekeepers in the homes of more elite Africans.Footnote ⁵⁷ Men who migrated to Libreville without wives attempted to maintain families and marriages they might have left behind or to establish new ones in their places of labor.

Even if fluctuations in the timber industry circumscribed access to cash and imported goods, bridewealth costs continued to escalate. Bridewealth increased among Fang populations in the Estuary to reach typical cash payments of 2,000 to 3,000 francs in addition to imported goods by 1936.Footnote ⁵⁸ Fault lines over the control of women's mobility, sexuality and labor appeared between junior men and senior men, and between newly arrived men from other regions in the colony and more settled populations. In regions of timber exploitation, violent disputes over women occasionally erupted between laborers and villagers who lived near timber camps.Footnote ⁵⁹ Conflicts concerning access to women in the colony's urban and timber centers remained contentious, not because there were too few marriageable women, but because men seeking to marry competed with wealthier elder men who controlled access to female dependents and determined bridewealth costs. Even if a man did manage to negotiate bridewealth and enter into a marriage agreement, a woman's family might not allow her to live in her husband's home until the entire amount had been paid.Footnote ⁶⁰ Furthermore, a woman's family might perpetually pressure the husband for more goods and money and reclaim the wife if he did not give them what they wanted. Another suitor might readily meet their demands. Compounding this situation in which marriages were difficult to contract, yet frequently ruptured, wives sometimes sought to divorce their husbands or otherwise remove themselves from their husband's control by abandoning the conjugal home.

The colonial state sought out fixed African leaders within villages and towns who would maintain order as auxiliaries of the colonial state. Colonial officials worried about their authority and sociopolitical control in the coastal areas.Footnote ⁶¹ Instability in marriage and family, they argued, was caused by excessive and rapid evolution of coastal populations – contact with Europeans had weakened the customary authority of senior men.Footnote ⁶² Enforcing the authority of village chiefs would ‘reinforce the social armature of marriage and family’.Footnote ⁶³ In 1928, the colony's Governor argued that chiefs should be ‘the principal pivot and wheel of our administration’.Footnote ⁶⁴ Conceiving of Africans as inherently tied to tribes, the colonial state appointed a group chief at the head of each ethnic group. Previously an honorific role with few official duties, these chiefs were now judge–arbitrators who would adjudicate litigation under the supervision of French administrators in colonial courts.Footnote ⁶⁵ For the colonial state, the imperative was to fix customary law and utilize the indirect rule of chiefs as the vehicle for enforcement. Four years later, as the state launched another effort towards codification, the Governor urged, ‘if elaborated, debated, and adopted by the chiefs, there is more of a chance that these new customs will be accepted by the population’.Footnote ⁶⁶ The Lieutenant Governor also created regional councils of notables composed of mainly elder men and a few young men.Footnote ⁶⁷ By 1938, administrators had divided the Estuary region into 15 cantons and the city of Libreville into neighborhoods. Each canton and neighborhood was to be presided over by a chief and these chiefs could also preside over colonial courts.Footnote ⁶⁸ They would act as the principal intermediaries between African populations and the colonial state.

In contrast to drafts of customary law in the previous generation, African chiefs, not French administrators, were to consecrate marriages and declare divorces and participate in the articulation of what was considered to be customary law. Yet, chiefs and the French often had problems communicating: few chiefs spoke French and few administrators spoke a Gabonese language.Footnote ⁶⁹ Thus, administrators also looked to educate the sons of chiefs and sought French-speaking, mission-educated younger men as a new generation of chiefs who would be mediators with the colonial government. One such younger chief was Léon Mba, the future Prime Minister of independent Gabon, who had been educated in a mission station in the Estuary region. From the 1920s and 1930s, Mba was promoted from civil service in a customs office to canton chief. Mba wrote and spoke French and authored essays on Fang history and customs throughout the 1920s and 1930s, which he forwarded to the colony's French administrators.Footnote ⁷⁰ Administrators and religious officials referred to Mba's essay on Fang customary law in shaping codification projects.

Under the surveillance of the colonial state, chiefs were to decide upon the legality of marriages, declare divorces and determine what amounts of bridewealth would be reimbursed in a manner that reified marriage as an immutable contract. In the 1932 annual report, Gabon's Governor attached a document purporting to summarize the customary marriage laws of Galoas, Fang and Akélais ethno-linguistic groups.Footnote ⁷¹ Resulting from meetings with hundreds of chiefs of different ethnic groups, the text was to ensure uniformity in how chiefs conceptualized and administered conjugal law. The document put forward a concise definition of marriage: a contractual relationship entered into by mutually consenting men and women, with divorce limited to exceptional circumstances. A group chief was to witness the exchange of bridewealth, record the amount in a register and issue a certificate of marriage. The remittance of bridewealth, limited to 1,000 francs for all ethnic groups, made a marriage legally binding. Both the fiancé and fiancée were to consent to the marriage and those who had not yet reached puberty could not be married. Divorce would only be granted in cases of abandonment or adultery by either party, debilitating physical abuse, refusal to provide food and lodging, and serious cases of incompatibility.Footnote ⁷² A widowed woman was free to choose whether she wanted to marry someone within her deceased husband's family, or she could be free to depart the family by reimbursing a proportion of her bridewealth. Group chiefs were also to negotiate proceedings for divorce – a man and woman wishing to divorce would first be heard by the judge–conciliator who was an auxiliary of the first-degree court. If conciliation was not possible, the judge–conciliator, with the approval of the French head of the subdivision, could pronounce a divorce. Gabon's Governor circulated the document to subordinate administrators as a guide for how to mediate litigation in colonial courts.

However, enforcing the centralized authority of chiefs was a contested process that involved reducing the power of individual senior men who were heads of extended families. Even as the colonial state appointed chiefs as centralized figures of political authority, groups of villages or clans throughout the Estuary region recognized a senior man other than those appointed by the colonial state as their leader.Footnote ⁷³ In 1933, the French convened a council of Fang, Galoas and Akélais group chiefs in Lambaréné to discuss how to reduce the ability of male heads of families to determine their dependents' marriage choices.Footnote ⁷⁴ For example, heads of women's families often retained women until women's husbands had paid the full amount of agreed-upon bridewealth. Seeking to diminish the power of male heads of families, the council resolved that bridewealth did not have to be paid all at once in order for a marriage to be valid and that chiefs could intervene in bridewealth negotiations to establish gradual payments. It is not evident that the colonial state ever acted on these recommendations. Yet, the proposal reveals the processes through which chiefs sought to establish control over conjugal practices.

Establishing the authority of chiefs was an uneven process – groups of junior and senior African men struggled against chiefs' assertions that they had the authority to interpret and enforce customary laws. Chiefs could not always maintain their central authority over communities as people routinely moved into surrounding forests or migrated to other regions.Footnote ⁷⁵ Nevertheless, sometimes chiefs achieved sociopolitical power that exceeded colonial officials' intentions. In theory, chiefs were to maintain written registers of judicial hearings, yet most chiefs were not literate and did not have the resources to employ a secretary to transcribe proceedings.Footnote ⁷⁶ Chiefs could use their adjudication of civil conflict to enrich and empower themselves. Individual chiefs set up ad hoc courts in which they ruled on conjugal conflict without the knowledge of colonial officials.Footnote ⁷⁷ Paper trails of what occurred in conciliation hearings only survived because individuals under chiefs' jurisdiction took pen to paper to complain to colonial administrators.Footnote ⁷⁸ A 1936 letter of complaint about chiefs' mediation of marital disputes in the subdivision of Libreville sparked an investigation that was closely monitored by the Governor-General in Brazzaville. Findings of this investigation caused colonial officers to question the efficacy of indirect rule and revive efforts to codify customary law.

By protesting against chiefs who interpreted and applied their own notions of customary law, men under their jurisdiction asserted their own visions of custom and moral and legal order. In August of 1936, a letter signed by the ‘Native Married Population of Libreville’ arrived at the Governor's desk.Footnote ⁷⁹ The anonymous letter, written by aggrieved Fang husbands, lodged a series of complaints regarding abuses committed by village chiefs in the subdivision of Libreville in the settling of adultery, divorce and bridewealth conflicts. The first grievance was that village chiefs extorted money from litigants. In cases in which the chiefs ruled for divorce, chiefs ruled that wives' families only had to reimburse half of the original amount of bridewealth. Of the half to be reimbursed, the chief retained 100 francs. A second complaint was that rather than settling disputes between husbands and wives expeditiously, chiefs sought to maintain custody of the women for as long as possible.Footnote ⁸⁰ The husbands charged that chiefs retained custody of women for two to three months while they worked in chiefs' plantations, or lent the women out to others in exchange for money. The postscript lamented that husbands depended on their wives' agricultural labor for economic survival: ‘P.S. Our wives help us in our plantations, but the chiefs keep them to make them work on their own plantations. How do you expect us to work?’ The petitioners were not wealthy, polygynous men, but men with one wife who greatly depended upon their wives' labor to earn a livelihood. In response to the letter, colonial officials launched an investigation. Inquiries throughout the Estuary region revealed widespread discontent among Fang husbands with chiefs' mediation of marital differences.Footnote ⁸¹

The protests of less wealthy African men over chiefs' ruling on marital disputes reveal conflict within Fang communities regarding the authority of native chiefs and the implementation of indirect rule. What constituted ‘patriarchy’ and which men were to maintain control over the circulation of women in the Estuary's Fang communities were not clearly established. The complaints and investigations of chiefs' rulings expose tensions among wealthy and less well-off Fang men over how marriage should be maintained or dissolved, and which groups of men had the authority to direct the circulation of women. It is certain that men and women in the distant past also challenged the idea of marriage as an alliance of two lineages and argued that relationships could be made or broken by the spouses themselves. Yet, the position of judge–arbitrator gave chiefs the formal political role of controlling the circulation of women, a role that had formerly been in the hands of individual clan patriarchs. Husbands expected chiefs to dismiss women's requests for divorce and force wives to return to their husbands' homes. Yet chiefs sought to establish themselves as the group of men who had the authority to determine how and whom women could marry. The ability of chiefs to circumvent lineage heads and marry and divorce men and women at will indicated their aspiration for centralized authority in Gabonese communities. By the end of the 1920s, younger, mission-educated men also disagreed with the authority of chiefs to administer customary law. In a document he sent to the colony's Governor in 1927, Léon Mba argued that chiefs should be young, active, literate men who would articulate customary law that reflected historical change under colonial rule.Footnote ⁸² Mba and other elite African men would increasingly assert competing views of customary law in the aftermath of the Second World War.

‘THESE LAWS SHOULD BE MADE BY US’: ELITE AFRICAN MEN AND CUSTOMARY LAW IN THE SHADOW AND AFTERMATH OF THE SECOND WORLD WAR

During and after the Second World War, administrators at the highest levels of colonial government in AEF and France began to view the codification of customary marriage law in Africa as vital. French interest in questions of marriage, the family and the status of women in AEF expanded under the governorship of Felix Eboué, a black French citizen from the Francophone Caribbean, from 1940 to 1944.Footnote ⁸³ Eboué believed that France had the duty to introduce its economic systems and social and political organization to improve the material conditions of African masses, but that certain aspects of African cultures were to be maintained. This vision of the French colonial rule culminated in a document entitled ‘Native social policy’ that was the foundation of post-war French colonial policies.Footnote ⁸⁴ Eboué and AEF governors who followed him initiated discussions on a host of reforms aimed at facilitating marriages, decreasing divorce and increasing the birth rate among African populations.Footnote ⁸⁵

Marriage and sex were undoubtedly contested relations in precolonial Gabon, yet historical change under colonial rule brought about new sociopolitical and economic contexts in which African communities negotiated marriage and family life. Migration and greater access to cash for both women and junior men reordered gender, generational and colonial hierarchies of power. African men and the French viewed their control over marriage and sex as key to maintaining moral, political and economic order. Arguments about the necessity of codifying customary marriage law in the post-Second World War years centered on the argument that African populations had too quickly adapted to living in urban areas and valuing money.Footnote ⁸⁶ Administrators and missionaries argued that the African family cell, particularly among the Fang, had disintegrated.Footnote ⁸⁷ Africans living in or near urban areas had been ‘detribalized’ – urbanization, contact with the colonial state and the church, and wage labor had resulted in African communities that no longer lived according to customs.Footnote ⁸⁸ Elite African men argued that family heads no longer had the authority to control the actions of their dependents and growing individualism and the search to earn money meant that individuals acted at will.Footnote ⁸⁹ Additionally, women increasingly engaged in libertinage – married women often engaged in adultery, and married, divorced and remarried other men at will. The result perpetuated the problem of demographic and socioeconomic crisis – women were not giving birth to enough children to ensure a reliable population of laborers.Footnote ⁹⁰ Establishing social order meant controlling women's sexuality and limiting divorce and bridewealth payments.

Eboué suggested that customary courts presided over by appointed chief judges of varied ethnic groups should decide upon matters of marriage and divorce, not colonial officials.Footnote ⁹¹ In order for these customary courts to function, there had to be consensus as to what was custom. Eboué directed each colony to organize meetings of chiefs of each ethnicity, to name one head of each group and to have these heads meet to study and decide upon customs for their groups.Footnote ⁹² Yet, as colonial officials searched for groups of men who were the heads or chiefs of Gabon's populations, struggles among African men over who had political and moral authority continued.

As argued by Elikia M'Bokolo, there emerged ‘two elites [after 1945], the chiefs and the évolués; and [the administration] favored the chiefs in its doctrine while in practice promoting the évolués’.Footnote ⁹³ The French began to look towards evolués – elite, French-speaking, Christian African men – to determine what customary laws were to be included in modern African marriages.Footnote ⁹⁴ The disintegration of the family, colonial officials argued, was partially tied to the failure of indirect rule. Chiefs' ability to maintain control over their communities was uneven.Footnote ⁹⁵ In the aftermath of the Second World War, evolués throughout AEF, many of whom had worked as civil servants for the colonial state and supported Eboué and Charles de Gaulle, advocated greater responsibility in their regional governance. Thus, the French created a Territorial Assembly (TA) in each colony to review and propose legislation to be considered by the Representative Assembly (RA) in Brazzaville.Footnote ⁹⁶ The RA was composed only of French men and had the authority to enact legislation for AEF. The African delegates of the TA in Gabon, some of whom were French citizens, were a mixture of Myènè and Fang delegates who were all mission-educated men. Delegates such as Léon Mba, Jean-Hilaire Aubame and Laurence Gondjout would later lead Gabon towards independence. As educated French citizens, delegates to the TA viewed themselves as the rightful political leaders of African communities and often sought to act independently of the colonial state.

In February 1947, Fang delegates to the Pahouin Congress of Mitzic (le Congrès pahouin de Mitzic) met to determine who would be the political leaders of the Fang and to codify customary marriage. Over fifty male leaders – canton chiefs, delegates to the TA and members of councils of notables – met in the town of Mitzic located in the Northern Fang province of Woleu-N'Tem.Footnote ⁹⁷ Marriage needed to be regulated, attendees argued, because the falling birth rate threatened the survival of Fang society.Footnote ⁹⁸ Tensions arose between a group led by Léon Mba, called the ‘Libreville progressives’, who sought to maintain some autonomy from the colonial state, and appointed chiefs whose authority was dependent upon the support of the state.Footnote ⁹⁹ The resulting codification of customary law recognized high-level chiefs as intermediaries between African populations and the colonial state, but also enforced the authority of heads of clans to determine the circulation of women. This document was to serve as a universally accepted version of customary law that would regulate the behavior of Fang throughout the colony.

The recommended customary laws listed in the brochure reflected the idea of the revision of custom (la réforme de la coutume) and the recommendation that Fang customs of marriage and family be revised due to the changes resulting from interactions with the French.Footnote ¹⁰⁰ Delegates claimed a tradition of centralized authority among the Fang in spite of the decentralized nature of clan heads in the Equatorial tradition. Canton chiefs were to be the authorities to consecrate customary marriage; all customary marriages needed to be declared to canton chiefs who would maintain records in a register.Footnote ¹⁰¹ Yet, as argued by Georges Balandier, the Congress's document on customary law was ‘essentially concerned to protect the husband's rights with regard to his in-laws’.Footnote ¹⁰² The delegates' version of customary law sought to facilitate marriages and maintain them once they had been consecrated. Delegates recommended that limits on bridewealth and adultery fines be immediately put into practice. Bridewealth was to be limited to the maximum of 2,000 francs, and fines for adultery fixed at the sum of 500 francs for the first offense and 1,000 francs for the recidivist. Furthermore, a widow was free to divorce, but only if she reimbursed her husband's family's bridewealth.Footnote ¹⁰³ These recommendations would limit women's ability to marry, divorce and remarry as a strategy to increase their wealth, and that of their families. Once marriages had been sealed with the transfer of bridewealth, the recommendation establishing high amounts for the adultery fine would dissuade unmarried men from seeking sexual access to married women. Yet, the Mitzic document was never accepted as the final word on customary law. Rather, the Congress ignited further debates among African male leaders about role and forms of bridewealth in defining customary marriage.

African elites and French administrators agreed that high bridewealth was the source of conflicts within marriages and in the 1950s embarked upon codifying bridewealth payments for all of Francophone Africa. However, elite African men sought to assert themselves as regulators of customary marriage in the place of chiefs and the colonial state. Some elite Gabonese men argued that bridewealth needed to be abolished altogether and that African marriages were to be consecrated in civil ceremonies without the exchange of bridewealth.Footnote ¹⁰⁴ Calls for the abolishment of bridewealth by African men, however, remained rare and most proposals focused on establishing maximum bridewealth amounts. Fathers, uncles or other men who maintained control over female dependants would force married women to divorce if another wealthier suitor appeared. Furthermore, high bridewealth costs made marriage prohibitive for younger men. In March 1950, Senator Okikadi of the Territorial Assembly presented a version of customary law for the Haut-Ogouée that proposed to ‘slightly’ modify customary law.Footnote ¹⁰⁵ Senator Okikadi argued that bridewealth had become such a source of wealth that African women in marriages were akin to slaves sold for profit. The resolution was that bridewealth could not exceed 6,000 francs. Witnesses from a groom's and bride's families would appear before the canton chief to corroborate the bridewealth amount and the chief would enter this in a register. African delegates vehemently defended bridewealth in the face of criticism from French delegates that bridewealth was equivalent to the sale of women.Footnote ¹⁰⁶ The Assembly unanimously approved this proposal and passed it on to Brazzaville, but higher-ranked administrators wished to see bridewealth limits established for all of AEF. Addressing all of the colonies in the AEF, administrators in Brazzaville directed each colony to establish maximum bridewealth amounts for each ethnic group.Footnote ¹⁰⁷ These new limits would be applied to new marriages and also reimbursement in cases of divorce. The governors of individual colonies were to convene groups of senior men, notables, chiefs and women notables to gather information about customary marriage, bridewealth and divorce. This effort opened the door for delegates not only to debate bridewealth limits, but also to propose their own version of the codification of marriage, divorce and adultery laws.Footnote ¹⁰⁸

Delegates concurred on a common idea of a ‘marriage crisis’: marriages did not last, as women often sought divorces or committed adultery, and it was difficult for young people to marry since bridewealth demands by women's families were excessive. Sociopolitical control needed to be maintained over women's conjugal strategies, mobility and sexuality, and delegates argued that chiefs had not managed to maintain this control. In May 1952, Senator Aubame argued that a written study on African marriage formulated by the Assembly could then serve as a text that chiefs would follow in adjudicating marital conflict.Footnote ¹⁰⁹ A week later the commission proposed a resolution meeting the demands of delegates for a more comprehensive document that regulated marriage.Footnote ¹¹⁰ The proposal addressed three items: the registration of customary marriages, the limiting of divorce and penalties for adultery. Echoing the Pahouin Congress, all marriages were to be witnessed by the canton chief in order to be legally binding. Clearly seeking to diminish the power of individual chiefs, the resolution proposed that all chefs de terre and de village were required to bring couples before the canton chief who would then record all marriages in a register. Second, the resolution stipulated that the Governor would put measures in place to make divorces less frequent. Based on the rationale that fathers' quest for the highest bridewealth for their daughters was the catalyst for divorce, delegates proposed that such efforts be prosecuted under the criminal charge of fraud. Heads of families who requested high bridewealth, future husbands who agreed to pay such elevated bridewealth, and village chiefs who facilitated the fraud were all equally liable for criminal charges. Lastly, they proposed that adultery fines normally paid to husbands be deposited with social organizations such as churches, schools and cultural centers. Delegates, colonial officials and missionaries charged that husbands sometimes encouraged their wives to engage in adultery so that husbands could profit from the monetary fines and that this amounted to prostitution. The resolution sought to fix marriage as a contract, recorded and regulated by set rules on how one could enter into and break the contract.

The 1952 debates over the codification of customary marriage law in Gabon became a stage on which African delegates questioned the political authority of the colonial state. Senator Gondjout raised an objection to the proposal that chiefs be punished for encouraging divorce.Footnote ¹¹¹ Gondjout argued that village and canton chiefs used to have the authority to pronounce divorce, but that the French had inserted themselves in the place of chiefs. Delegates then turned to the question of whether the colonial state even had the authority to regulate customary marriage. Senator Owanga argued that, though Africans in Overseas France were declared to be French citizens in 1946, they were still judged according to customary and not French law. Therefore, Owanga asked, ‘Why is the administration involving itself in questions about women, our affairs?’Footnote ¹¹² Senator Mossot further expressed suspicions about the sudden French interest when he questioned why the French had not intervened sooner to curtail these longstanding problems of divorce, adultery and prostitution. Responding to this questioning of the state, delegates agreed that, as the elite, they should be the ones to take the responsibility in directing the country, in leading the masses towards reforming customary law and practices. Emphasizing the idea that the elite were to take the lead in shaping modern Gabon, Senator Gondjout argued, ‘We will not succeed in suddenly reforming custom in one day. What is applicable to us is not applicable for the masses. As we evolve, we will abandon customs’. Delegates unanimously voted for the first and second resolutions and rejected the paragraph on adultery. There is no evidence that the higher administration in AEF ever acted upon any of these recommendations, and, on the eve of independence in 1960, no codified versions of customary law existed. Elite African men could not actualize their self-representations as the legal and moral agents of sexual–conjugal practices.