Indigénat

The Code de l'indigénat was a set of laws creating, in practice, an inferior legal status for natives of French Colonies from 1887 until 1944-1947. [The "Code d'Indigénat" was promulgated by the French government on 28 June 1881, and officially applied to all colonies in 1887. It was officially abolished in 1946, but parts of it remained in force until independence in the early 1960s. The "senatus consulte" of 14 July 1865 put in place many of the elements of the future Code d'Indigénat in Algeria, and prior to 1887, other colonial subjects lived under similar conditions.] First put in place in Algeria, it was applied across the French Colonial Empire in 1887-1889. A similar strategy was also employed by other European colonial powers, under the concept of Indirect rule.

Theoretical Underpinnings

French colonial policy is often contrasted with the British concept of Indirect rule pioneered by Frederick Lugard of the British East Africa Company in Uganda and later the Royal Niger Company in what is today Nigeria. Lugard devised a method of colonial administration which relied upon maintenance of pre-colonial chiefs and other political structures, who were in turn subject to the authority of British representatives.

The French government, in contrast, wrote much about the assimilation of colonial subjects, with the final aim of creating in their colonies integral parts of France, filled with African, Arab, or Asian "Frenchmen". This combined with a Jacobin tradition of centralizing government, has given weight to the argument that French colonial rule stood in stark contrast to other models. But only small areas of France's colonial possessions were ever afforded full rights as Overseas Departments of the French state. Between 1865 and 1962, only 7,000 [ [http://www.temoignages.re/article.php3?id_article=12652 Le Code de l’indigénat dans l’Algérie coloniale Temoignages December, 2005] : summary of quotations from academic sources] colonial subjects became French citizens, this in a global empire which, in 1939, counted some 69 million subjects.

The Code de l'indigénat has been at the center of revised historical thinking about French colonial policy. [Crowder, Michael: Indirect Rule: French and British Style Africa: Journal of the International African Institute, Vol. 34, No. 3 (Jul., 1964)] The indigénat is an example of "Association": French colonial indirect rule. It outlined an entire legal system by which the vast majority of colonial subjects were governed from the creation of the French Empire, until the reforms of the post World War II period. These laws provided for their enforcement by a system of administrative Cercles: appointed indigenous authorities, religious courts, and native police carrying out the orders of often distant French administrators.

The abolition of the indigénat, with its tax burdens, forced labor, and arbitrary exercise of authority was a primary demand of the resistance to French colonialism. Its removal was the first in a series of victories by native peoples which led to the end of colonialism.

Creation in Algeria

The Indigénat was first created to solve specific problems of administering France's North African colonies in the mid to early 19th century. There had been a royal Code Noir (decreed in 1685) determining the treatment of subject peoples, but it was in Algeria in the 1830s and 1840s that the French government began to actively rule large subject populations. Not only was it realized that this was impractical in areas without a French population, but French experiences with large groups of subject people convinced many that both direct rule and eventual assimilation was undesirable.

In Algeria a legal framework was developed piecemeal, which would later be formalised and exported around the globe.

^{from French rule in Algeria}

Colonization and military control

A royal ordinance in 1845 called for three types of administration in Algeria. In areas where Europeans were a substantial part of the population, "colons" elected mayors and councils for self-governing "full exercise" communes ("communes de plein exercice"). In the "mixed" communes, where Muslims were a large majority, government was in the hands of appointed and some elected officials, including representatives of the grands chefs (great chieftains) and a French administrator. The indigenous communes ("communes indigènes"), remote areas not adequately pacified, remained under the "régime du sabre" (direct rule by the military).

Beginnings of Indirect Rule

The first "Code de l'indigénat" was implemented by the Algerian "senatus consulte" of July 14, 1865. Its first article stipulated that

"The Muslim indigen is French; however, he will continue to be subjected to Muslim law. He may be admitted to serve in the terrestrial and marine Army. He may be called to functions and civil employment in Algeria. He may, on his demand, be admitted to enjoy the rights of a French citizen; in this case, he is subjected to the political and civil laws of France." [ "« L’indigène musulman est français ; néanmoins il continuera à être régi par la loi musulmane. Il peut être admis à servir dans les armées de terre et de mer. Il peut être appelé à des fonctions et emplois civils en Algérie. Il peut, sur sa demande, être admis à jouir des droits de citoyen français ; dans ce cas, il est régi par les lois civiles et politiques de la France » (article 1 of the 1865 Code de l'indigénat) ]

However, until 1870, fewer than 200 demands were registered by Muslims, and 152 by Jewish Algerians settlers. [http://www.ldh-toulon.net/spip.php?article527 le code de l’indigénat dans l’Algérie coloniale] , "Human Rights League" (LDH), March 6, 2005 - URL accessed on January 17, 2007 fr icon ] The 1865 decree was then modified by the 1870 Crémieux decrees, which granted French nationality to Jews living in one of the three Algerian departments. In 1881, the "Code de l'Indigénat" officialized the discrimination, by creating specific penalties for indigenes and organizing the seizure or appropriation of their lands. [http://www.ldh-toulon.net/spip.php?article527 le code de l’indigénat dans l’Algérie coloniale] , "Human Rights League" (LDH), March 6, 2005 - URL accessed on January 17, 2007 fr icon ]

The Franco-Algerian philosopher Sidi Mohammed Barkat has described this legal limbo as: "Not truly inclusion nor in fact exclusion, but the indefinite hanging on for some future inclusion" [Sidi Mohammed Barkat le Corps d'Exception: les artifices du pouvoir colonial et la destruction de la vie, (2005) "Ni vraiment une inclusion ni tout à fait une exclusion, mais le report indéfini d’une pleine inclusion annoncée"] . He has argued that this legal limbo enabled the French to treat the colonised as a "mass" less than human, but still a subject to a humanising mission; only able to become fully human when they cast off all the features that the French used to define them as part of the indigen mass. [For more on the contemporary effects of the , see Barkat (op. sit), and Mona Chollet, dans l’ornière du droit colonial, 22 November 2005, [http://www.ldh-toulon.net/spip.php?article1018 Website of Section de Toulon de la LDH] ] .

In practical terms, by continuing the fiction that the "indigen is French", the Code de l'indigénat enabled French authorities to place a large, alien population under their rule through a legal separation and a practice of indirect institutions to substitute for a tiny French governing force.

Expanding Empire 1887-1904

While the Indigénat grew from circumstances of the colonial rule of North Africa, it was in sub-saharan Africa and Indochina that the code became formalised. As French rule expanded during the Scramble for Africa, the government found itself nominal ruler of some 50 million people, with only a tiny retinue of French officials. The Berlin Conference specified that territory seized must be actively ruled, or other powers were welcome to seize it. The Indigénat was the tool with which France ruled all its territories in Africa, Guiana, New Caledonia, and Madagascar without having to extend the rights of Frenchmen to the people who lived there.

In Practice: Africa 1887-1946 [For this section, see: Jean Suret-Canele. French Colonialism in Tropical Africa 1900-1945. Trans. Pica Press (1971) pp.331-341]

Punishment

The "commandant de cercle", or any white man in practice, was free to impose summary punishment for any of 34 (later 12) vague headings of infractions of the code: from murder down to 'disrespect' of France, its symbols, or functionaries. These could range from fines, to 15 days in prison, to being executed immediately. [Le Vine, Victor T., Politics in Francophone Africa. Lynne Rienner (2004) pp 48-51 ISBN 1588262499] While the statute stated that all punishments must be signed by the colonial governor, this was almost always done after the fact. Corporal punishment was outlawed, but still regularly used. And while reforms were periodically placed upon these powers, in practice they became common and arbitrary. Over 1,500 officially reported infractions were punished under the indigénat in Moyen Congo in 1908-09 alone. [Martin, Phyllis: Leisure and Society in Colonial Brazzaville Cambridge University Press (1995)pp 83-87 ISBN 0521524466]

Taxes and Forced Labor

Beneath these punishments, were a set of tools for extracting value from colonial subjects. In Africa, these included the "Corvée" (forced labor for specific projects) [ Babacar Fall and Mohamed Mbodj, "Forced Labor and Migration in Senegal" in Forced Labor and Migration: Patterns of Movement within Africa, edited by Abebe Zegeye and Shubi Ishemo (New York: Hans Zell Publishers, 1989)] , "Prestation" (taxes paid in forced labor) "Head Tax" (often arbitrary monetary taxes, food and property requisitioning, market taxes) and the "Blood Tax" (forced conscription to the native Tirailleur units). All major projects in French West Africa in this period were carried out by forced labor, including work on roads, mines, and in fields of private companies. [Andrew, C. M. and Kanya-Forstner, A. S.: French Business and the French Colonialists The Historical Journal, Vol. 19, No. 4 (Dec., 1976) Suret-Canale, Jean. 1966. "La Fin de la Chefferie en Guinée," Journal of African History, Vol. VII, No. 3, pp. 459-493. retrieved at [http://www.guinee.net/bibliotheque/histoire/jscanale/finChefferie/chefferie.html] , where example orders from Comandants de Cercle are quoted.]

Tax and forced labor application depended largely upon the local French "Cercle", and in some areas, forced labor continued as a staple of the colonial economy, where private enterprises could not attract workers, [Jean Suret-Canele. op sit, pp.233, 247-248,253-256. Detailing forced contracts as long as two years (paid only at the end of contract) in Cote d'Iviore, Congo and Madagascar for cotton plantations, forestry, and public works] , or for personal projects of colonial officials [Myron Echenberg, Jean Filipovich: African Military Labour and the Building of the Office du Niger Installations, 1925-1950 in The Journal of African History, Vol. 27, No. 3 (1986) Details the 1926 decree allowing long term forced labor for the building of a vast irrigation system for a largely unpopulated area, where it was never used.] The vision of a 'forced modernization' of even the most well intentioned officials (that 'progress' would only result from coercion), combined with tremendous power given to French created 'Chiefs', saw a massive increase in forced labor demands in the inter-war period. Unsurprisingly this resulted in enrichment for chiefs and the French, and suffering for other Africans. [Martin Klein. Slavery and Colonial Rule in French West Africa. Cambridge University Press (1998) ISBN 05215967785 pp.208-213.]

Plantations, forestry operations, and salt mines [ Babacar Fall, "Manifestations of Forced Labor in Senegal: as Exemplified by the Société des Salins du Sine-Saloum Kaolack 1943-1956" in Forced Labor and Migration: Patterns of Movement within Africa, edited by Abebe Zegeye and Shubi Ishemo (New York: Hans Zell Publishers, 1989)] in Senegal continued to be operated on forced labor, mandated by the local commandant and provided by official chiefs through the 1940s. Forced agricultural production was common in sub-Saharan Africa from the 19th century until the Second World War, sometimes mandated by the central government (rubber until 1920, rice during the Second World War), sometimes for profit (the cotton plantations of Compagnie Française d'Afrique Occidentale and Unilever), and sometimes on the personal whim of the local commandant (such as an attempt to introduce cotton into the Guinean highlands by one official). Unlike the Belgian Congo, infamous for its 19th century forced rubber cultivation by private fiat, the French government administration was legally bound to provide labor for its rubber concessionaires in French Equatorial Africa and settler owned cotton plantations in Côte d'Ivoire [Jean Suret-Canele. op cit, pp.230-233] .

Native Governance

In addition, native sub-officials, such as the appointed local chiefs, made use of forced labor, compulsory crops, and taxes in kind at their discretion. As the enforcers of the indigénat, they were also, in part, beneficiaries. Still, they themselves were quite firmly under French authority when the French chose to exercise it. It was only in 1924 that chiefs du canton were exempted from the Indigénat, and if they showed insubordination or disloyalty they could still (as all Africans) be imprisoned for up to ten years for 'Political offences' by French officials (subject to a signature of the Misnister of Colonies). [Michael Crowder. Colonial West Africa: Collected Essays: Routledge (1978) ISBN 071462943X. pp142-143.]

Courts

In Africa, "Sujets" fell under two separate court systems. After their creation by Governor-General Ernest Roume and Secretary General Martial Merlin in 1904, most legal matters were officially handled by the so-called "customary courts". These were either courts convened by village 'chefs du canton' or some other French recognized native authority, or else by Muslim Sharia courts. While Muslim courts had some real local relevance behind them, the French history of chief creation was to replace traditional leaders with Africans who would be dependent upon the French. Consequently customary courts often served simply to place more power in the hands of official chiefs. What was deemed customary differed from cercle to cercle, with the Commandant relying upon his native sub-officials to interpret and formalize oral traditions of which the French had no knowledge. [See Martin Klein. op cit.: pp.132-137, 208-209, 237-240. As the title indicates, Klein is concerned with the persistence of African slavery under French rule. He argues that customary law and French appointed chiefs allowed formal slavery to continue in some areas up to the 1920s, and the social relationship to survive through independence. ] Civil cases which came to the attention of the French officials were tried by an administrator-judge in a "tribunaux du premier degré", where the administrator-judge was an appointed African notable (other than local Chief).

Matters deemed especially serious by the French officials, or matters in which the colonial power had any interest, were handled by a French administrator-judge. All criminal cases were handled by a "tribunaux du premier degré" led by the "chef du subdivision" (the lowest post held by whites) with the assistance of two local notables and two white officials, or (in practice) anyone the administrator-judge chose. These could be appealed to the "tribunal criminal" where the administrator-judge was the local "Commandant du cercle", and was not bound to heed the advice of even his own appointed assistants. [Michael Crowder. op cit. p.142.] beyond this, there was no functioning appeals process, though on paper, the colonies governor had to sign off on all decisions which imposed punishments over those allowed for summary sentences. Historians examining the court records have found governors were asked for approval after the fact, and in all but a minuscule number of cases signed off on whatever their commandants decided. [Jean Suret-Canale. "... Tropical Africa", op cit.]

Those Africans who had obtained the status of French citizens(Évolué) or those born into the Four Communes ("originaires") were subject to the small French court system, operating under the Code Napoleon as practiced in France. The lack of an adversarial system (In French law, the Judge is also the prosecutor) may have worked in France, but was hardly trusted by educated Africans, especially if their accusors or opponents were white colonials. This goes some way to explain why French Africans demand for access (led by Lamine Guèye) to both local and French courts was so strong, and why so few who managed to meet the requirements of citizenship chose to pursue it, abandoning themselves to French justice.

Even "originaires" were not free from summary law. In 1908, most African voters in Saint-Louis were removed from the rolls, and in the "Decree of 1912", the government said that only "originaires" who complied with the rigorous demands of those seeking French Citizenship from the outside, would be able to exercise French rights. Even them, "originaires" were subject to customary and arbitrary law if the stepped outside the Four Communes. It was only through a protracted battle by Senegalese Deputy Blaise Diagne, and his help in recruiting thousands of Africans to fight in World War I, that legal and voting rights were restored to even the "originaires" with the Loi Blaise Diagne of 29 September, 1916 [For Blaise Diagne, see:
*G. Wesley Johnson. The Ascendancy of Blaise Diagne and the Beginning of African Politics in Senegal. In Africa: Journal of the International African Institute, Vol. 36, No. 3 (Jul., 1966), pp. 235-253.For the background of the "Decree of 1912", see:
*Michael Crowder. Colonial West Africa: Collected Essays: Routledge (1978) ISBN 071462943X.]

Becoming French

see Évolué and Assimilation (French colonial)

Resistance

Resistance, while common, was usually indirect. Huge population shifts occurred in France's African colonies, especially when large conscription or forced labor drives were pushed by particularly zealous officials. [Echenberg, Myron J.: Paying the Blood Tax: Military Conscription in French West Africa, 1914-1929 in the Canadian Journal of African Studies / Revue Canadienne des Études Africaines, Vol. 9, No. 2 (1975), pp. 171-192]

Whole villages fled during the roadbuilding push in the 1920s and 30s, and colonial officials gradually relaxed the use of forced labor. Rober Delavignette (a former colonial official) documented the mass movement of some 100,000 Mossi people from Upper Volta to Gold Coast to escape forced labor, while the investigative journalist Albert Londres claims the figures are closer to 600,000 sujets fleeing to Gold Coast and 2 million fleeing to Nigeria [ R. Delavignette, Les vrais chefs de l'empire. Galliard (1941).] .

Dissolution of the Indigénat

Some elements of the Indigénat were reformed over time. The formal right of white civilians to exercise summary punishment was removed in the decree of 15 November, 1924. This decree cut the headings under which subjects could be summarily punished to 24, and later to 12. Maximum fines dropped from 25 francs to 15, and summary imprisonment was capped at five days. In practice, though, summary punishment continued at the discression of local authorities. In French controlled Cameroon, 1935 saw 32,858 prison sentences for these 'administrative' offenses, compared to 3,512 for common law offenses. [Jean Suret-Canele. French Colonialism in Tropical Africa 1900-1945. Trans. Pica Press (1971) p.333]

Head taxes had been rising well above inflation from the First World War right through to the economic crisis of the 30s, and reached their high point during the Second World War [Patrick Manning: Francophone Sub-Saharan Africa 1880-1985. Cambridge University Press (1988) pp.50-56] , but it was decolonisation which saw a real drop in taxes paid without representation.

Gradually, the Corvée system was reformed, both because of international pressure and popular resistance. In the AOF (French West Africa), the Corvée had been formalised by the local decree of November 25, 1912. Duration and conditions varied, but as of in 1926, all able bodied men were required to work for no longer than eight days at a stint in Senegal, ten in Guinea and twelve in Soudan and Mauritania. Workers were supposed to be provided with food if working more than 5km from home, but this was often ignored. In 1930, the Geneva Convention outlawed the corvée, but France substituted a work tax ("Prestation")in the AOF decree of September 12, 1930, whereby able bodied men were assessed a high monetary tax, which they could pay via forced labor.

Political Moves

It was, in fact, political processes which doomed the indigénat system.

The Popular Front government in the decrees of 11 March and 20 March 1937 created the first labor regulations on work contracts and the creation of trades unions, but these remained largely unenforced until the late 40s.

The journalism of Andre Gide and Albert Londres, the political pressure of the French left and groups like the League for Human Rights and Popular Aid put pressure on the colonial system, but it was the promises made at Brazzaville in 1944, the crucial role of the colonies for the Free French in the Second World War, and the looming Indochina War and the Malagasy Uprising all made the new Fourth Republic reorient France to decolonization. The declaration at Brazzaville, more revolutionary for its discussion of the issue rather than any formal processes, declared the "progressive suppression" of the code de l'indigénat, but only following the end of the war.

The inclusion of some small political representation from the colonies after the war saw ending the indigénat as a primary goal, even though these men were drawn from the Évolué class of full French citizens. The passage of the loi Lamine Guèye was the culmination of this process, and saw the repeal of the courts and labor laws of the Indigénat.

Legally, the Indigénat was dismantled in three steps. The ordnance of 7 May 1944 suppressed the summary punishment statutes, and offered citizenship to those who met certain criteria and would give up their rights to native or Muslim courts. This citizenship was labeled "à titre personnel": their (even future) children would still fall under the Indigénat [ [http://www.mouvement-egalite.org/article.php?id_article=12 Le corps d’exception : questions à Sidi Mohammed Barkat] , mouvement-egalite.org, 14 June 2006] . The loi Lamine Guèye of 7 April 1946 formally extended citizenship across the empire, indigènes included. Third, the law of 20 September 1947 removed the two tier court system and mandated equal access to public employment.

Applied in fact only very slowly, the abrogation of the code de l'indigénat only became real in 1962. At this date, the last of the colonies became independent and French law adopted the notion of double jus soli. Thus, any child of colonial parents born in French ruled territory became French citizens. All others were by then full citizens of their respective nations.

Full voting representation and full French legal, labor, and property rights were never offered to the entire sujet class. The Loi Cadre of 1956 extended more rights, including consultative 'legislatures' for the colonies within the French Union. Within three years, this was replaced by the referendum on the French Community, in which colonies could vote for independence The First Indochina War led to independence for the different regions of French Indochina. The Algerian War and the French Fifth Republic of 1958 led to independence for most of the rest of empire in the period 1959-1962. Those parts of the empire that remained (New Caledonia, French Guiana) became legally parts of France, and only then was the category of French Subject retired.

References

Additional Bibliography

*Weil Patrick, "Qu'est-ce qu'un Français", Paris, Grasset, 2002
* [http://www.editionsamsterdam.fr/livres/Barkat_Corps.htm Sidi Mohammed Barkat, "Le Corps d'exception: les artifices du pouvoir colonial et la destruction de la vie"] (Paris, Editions Amsterdam, 2005) propose, afin de rendre compte des massacres coloniaux de mai 1945 et d'octobre 1961, une analyse des dimensions juridiques, symboliques et politiques de l'indigénat.
*Julien, C. A.: From the French Empire to the French Union in International Affairs (Royal Institute of International Affairs 1944-), Vol. 26, No. 4 (Oct., 1950), pp. 487-502
*Mortimer, Edward France and the Africans, 1944-1960, A Political History (1970)
*Crowder, Michael: West Africa Under Colonial Rule Northwestern Univ. Press (1968) ASIN: B000NUU584
*Thomas, Martin: The French Empire Between the Wars: Imperialism, Politics and Society Manchester University Press, (2005). ISBN 0719065186.
*Benton, Lauren: Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State in Comparative Studies in Society and History, Vol. 41, No. 3 (Jul., 1999)

See also

* Code Noir (1689)
* Décret Crémieux
* loi Lamine Guèye (1946)
* Loi Cadre (1956 Overseas Reform Act)
* French Union
* French rule in Algeria
* French Colonial Empire
* Indirect rule
* Évolué
* Assimilation (French colonial)
* French nationality law
* French citizenship and identity