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APPLES TO ORANGES: EPISTEMOLOGICAL DISSONANCE IN
THE HUMAN RIGHTS CASE HADIJATOU MANI V. NIGER
Thomas Kelley*
I. INTRODUCTION
In 2008, Hadijatou Mani,1 a twenty-four year-old2 uneducated
woman from the hinterlands of the Republic of Niger,3 successfully sued
Niger in the Community Court of Justice of the Economic Community
of West African States (“the ECOWAS Court”)4 for failing to protect her
from slavery.5 As the facts of the case showed, and as Part II of this
paper will discuss in detail, Hadijatou was purchased at the age of
twelve and was held in servitude for ten years before her gumption and a
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* Paul B. Eaton Distinguished Professor of Law, University of North Carolina at Chapel
Hill School of Law. Thanks to my friend and colleague, Bachir Tidiani. Thanks also to Julie
Grimley, Brett Neve, and Andrew Arnold for their research assistance.
1
Some published reports name the plaintiff as Hadijatou Mani, while others refer to her
as Adidjatou Mani Koraou. Compare West Africa Slavery Still Widespread, BBC NEWS,
http://news.bbc.co.uk/2/hi/africa/7693397.stm (last updated Oct. 27, 2008, 4:46 PM)
(referring to her as Hadijatou Mani), with Boureima Hama, Woman Wins Case Against Niger
for Slavery, SYDNEY MORNING HERALD (Oct. 28, 2008, 3:09 AM), http://news.smh.com.au/
world/woman-wins-case-against-niger-for-slavery-20081028-59vd.html (referring to her as
Adidjatou Mani Koraou). For ease and consistency, this paper will refer to the woman as
Hadijatou, and will refer to the various legal actions with variants of “the Mani case.”
2
Hama, supra note 1.
3
See West Africa Slavery Still Widespread, supra note 1.
4
The Economic Community of West African States (“ECOWAS”) was established in
1975 with a primary mission of improving economic performance and living standards on the
African Continent. Jean Allain, Hadijatou Mani Koraou v. Republic of Niger, 103 AM. J.
INT’L L. 311, 312 (2009) (“The ECOWAS Court emerged as a result of a 1991
Protocol . . . [naming it] the ‘principal legal organ of the Community.’ Composed of seven
members, the [ECOWAS] Court was originally . . . given jurisdiction to hear disputes
between member states and the executive organ of ECOWAS. However, under the 1993
Revised Treaty, the ECOWAS Court gained a constitutional mandate to consider issues of
human rights . . . . ‘in accordance with the provisions of the African Charter on Human and
Peoples’ Rights.’”). In 2005, ECOWAS adopted a Supplementary Protocol that explicitly
empowered the Court to hear human rights cases. Id.
5
West Africa Slavery Still Widespread, supra note 1.
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dose of good luck6 led to her manumission and, after years of legal and
personal struggles, freedom.7
Although Hadijatou’s legal action was procedurally and
substantively complicated,8 it turned on the seemingly simple question
of whether she was her purchaser’s “wife” or his “slave.”9 The
ECOWAS Court determined that she was his slave and ordered Niger to
declare her free and pay her damages in the amount of $19,000.10
The ECOWAS Court’s decision was significant for several reasons.
Above all, it meant liberation, self-determination, and a financial nest
egg for a woman who had suffered years of degrading treatment,
including unwanted sexual congress with the man who had purchased
her.11 The case was also a triumph for the nongovernmental
organizations (NGOs) that played significant roles in helping Hadijatou
in her flight from servitude and arguing her case before Nigerien courts
and, later, the ECOWAS Court.12 Human Rights NGOs based in Africa
and in Europe struggle to convince the public that diverse forms of
slavery, including chattel slavery, still exist and must be eradicated.13
Hadijatou’s case, which was covered extensively by the international
press,14 brought legitimacy and momentum to their cause.15 In addition,
for the broader community of human rights lawyers and advocates, the
case illustrated the increasing salience of universal human rights
standards and highlighted the importance and effectiveness of regional
See ANTI-SLAVERY, BRIEFING PAPER: HADIJATOU MANI KORAOU V. NIGER AT THE
ECOWAS COURT OF JUSTICE 1, available at http://www.antislavery.org/includes/
documents/cm_docs/2008/n/niger_case_at_ecowas.pdf (last visited Jan. 4, 2014) (explaining
that a Nigerien anti-slavery organization happened to be conducting awareness raising
meetings near her purchaser’s home when the organization learned of her plight).
7
See Hadijatou Mani v Niger, INTERIGHTS, http://www.interights.org/niger-slavery
(last visited Jan. 4, 2014) [hereinafter INTERIGHTS] (providing an overview of the facts of the
case).
8
See infra Part II.
9
See infra Part IV.
10
INTERIGHTS, supra note 7.
11
See id. I have employed the euphemism “unwanted sexual congress” here, knowing
that, from the perspective of American law, a more accurate term would be “sexual assault” or
“rape.” As the paper will discuss, in many parts of Niger it is a recent notion that a man does
not have the right to have sex, even unconsented sex, with a woman in Hadijatou’s social
category. See infra Part IV.
12
See INTERIGHTS, supra note 7.
13
See id. (quoting the president of a Nigerien human rights organization as saying: “For
17 years we have been working towards bringing slavery to the attention of the authorities”).
14
See id. (reporting that the Mani case was covered by 300 international news outlets).
15
See id.
6
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human rights bodies,16 for not only did the ECOWAS Court conduct a
full legal proceeding and render a forceful decision in Hadijatou’s
favor,17 but the sovereign defendant, Niger, honored the judgment,
allowing its ongoing domestic legal proceedings to be preempted and
paying damages and costs as ordered.18
While those outcomes are worthy of celebration and commentary,
they are not the focus of this paper. Instead, this paper will examine
Hadijatou’s experience in escaping from servitude from the perspective
of comparative law, shedding light on two ongoing debates within that
field.
First, some comparativists decry that their discipline is stuck in the
“country and western” tradition, focusing its energies on European and
North American laws and legal traditions.19 When it does deign to turn
its gaze to non-Western legal traditions, it usually limits the inquiry to
laws that emanate from states, ignores non-state norms and customs, and
usually aims to reveal or encourage “convergence” between legal
traditions that will permit the spread of market-driven capitalism and
democracy.20 Critics of the “country and western” tradition abhor that
comparative law doggedly labors toward the goal of building consensus
and “universalization” rather than acknowledging that rich legal
diversity abounds.21 These critics hold that there is intrinsic value in
understanding and describing legal conceptions that are different from
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16
INTERIGHTS, supra note 7 (noting that the Mani decision heralds a new role for
regional courts in deciding human rights claims).
17
See generally Dame Hadijatou Mani Koraou v. La République du Niger, No.
ECW/CCJ/JUD/06/08 (La Cour de Justice de la Communauté Économique Des Etats de
l’Afrique de l’Ouest du 27 Octubre 2008), translated in Hadijatou Mani Koraou v. The
Republic of Niger, No. ECW/CCJ/JUD/06/08 (ECOWAS Community Court of Justice, Oct.
27, 2008) (English language translation of the final judgment of the ECOWAS Community
Court of Justice), available at http://www.refworld.org/docid/496b41fa2.html [hereinafter
CCJ Judgment]. But see Allain, supra note 4, at 315–16 (criticizing the ECOWAS Court’s
legal reasoning).
18
INTERIGHTS, supra note 7.
19
John Gillespie, Towards a Discursive Analysis of Legal Transfers into Developing
East Asia, 40 N.Y.U. J. INT’L L. & POL. 657, 658 (2008).
20
See WERNER MENSKI, COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL
SYSTEMS OF ASIA AND AFRICA 5 (Cambridge Univ. Press, 2d ed. 2006) (arguing that
comparative law should move toward tolerance of diversity, not forced uniformity).
21
See id. at 38, 40–42 (quoting Cotterrell and employing the term “universalization”);
Annelise Riles, Introduction: The Projects of Comparison, in RETHINKING THE MASTERS OF
COMPARATIVE LAW 1, 17–18 (Annelise Riles ed., 2001) (commenting on comparative law’s
search for similarities between divergent legal systems).
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our own.22 They add that the differences can only be appreciated and
described by “‘skilled cultural navigators’”23 who resist the “desire to
draw parallels and to equate concepts between legal systems
simplistically.”24
This paper will respond by offering a thick description25 of the legal
traditions and formal laws that were invoked by the opposing sides in the
Mani case, and by showing that they were different and, in important
respects, incompatible. One side argued from a traditional Nigerien legal
and cultural perspective and claimed that Hadijatou was her purchaser’s
wife.26 The other side—Hadijatou’s side—argued from an essentially
Western27 human rights perspective that Hadijatou had been his slave.28
By delving into the historical, religious, and cultural backgrounds of the
parties, the paper will illustrate that the two sides’ epistemological and
legal assumptions were fundamentally different, and that their lawyers
were employing the terms “slave” and “wife” to mean different things.
The end result was that the parties to the Mani case were often talking
past one other.
An additional aim of this paper will be to weigh in on comparative
law’s “legal transplant”29 debate. When comparativists diverge from
See MENSKI, supra note 20, at 22–24.
Id. at 63 (quoting Roger Ballard).
24
Id. at 67.
25
By “thick description,” I allude generally to the idea, borrowed from anthropology,
that in order to understand human behavior, one must do more than directly observe that
behavior; one also must observe and understand the context in which that behavior takes
place. See generally CLIFFORD GEERTZ, Thick Description: Toward an Interpretive Theory of
Culture, in THE INTERPRETATION OF CULTURES 3, 5–10 (1973) (citing Gilbert Ryle).
26
See CCJ Judgment, supra note 17.
27
I employ the term “Western” in this context with full knowledge that some scholars,
including my colleague Holning Lau, object to its use in human rights and other legal
discourses partly on grounds that it implicitly attributes the creation and development of
human rights norms exclusively to European and related legal systems. See generally Holning
Lau, The Language of Westernization in Legal Commentary, 61 AM. J. COMP. L. 507, 507
(2013). As a later section of this paper will demonstrate, however, I believe that the human
rights norms discussed in this paper—particularly the definition of slavery as being one
human exercising ownership over another—evolved specifically out of Europe and the New
World’s experience with chattel slavery, and I am comfortable referring to that history as
Western. See infra Part IV (discussing legal definitions of slavery).
28
See CCJ Judgment, supra note 17.
29
As seems inevitable in scholarly debates, the nomenclature of “legal transplant” is
contested. Some embrace the term “legal transplant,” while others prefer “legal transfer,”
“legal adaptation,” “legal penetration,” or “legal irritant.” For a summary of the linguistic
tussle, see David Nelken, Towards a Sociology of Legal Adaptation, in ADAPTING LEGAL
CULTURES 7, 15–19 (David Nelken & Johannes Feest eds., 2001).
22
23
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their “country and western” tradition to focus on laws and legal systems
of non-Western countries, their aim is often to chart a course that will
facilitate the export of Western law to poorer nations.30 Their
assumption—shared by law and development practitioners and
scholars—is that the exportation of Western law will help create the
conditions for economic growth, democracy, and political stability in
regions where those qualities are scarce.31 The question of how to
accomplish this transfer of law—and indeed, whether it is possible at
all—has been referred to in comparative law as the “legal transplant”
problem.32 Comparativists at one extreme portray law as a readily
transferable technology that, with a few minor adjustments, can be made
to function wherever it is introduced in ways that will give rise to
predictable and positive outcomes.33 At the other extreme, scholars insist
that law is inextricably intertwined with and reflective of the particular
history, culture, and society in which it has evolved, and can never be
effectively transplanted from one society to another.34
This paper will rely on a careful, contextual analysis of Hadijatou’s
experience and the Mani case to illustrate that the “socio-cultural
context” comparative legal scholars have it mostly right, and that the
“law as technology” scholars—along with the legions of contemporary
law and development practitioners who make a living transplanting
Western law to developing countries35—have it mostly wrong.
See MENSKI, supra note 20, at 37–38 (claiming that comparative law often is in the
service of “trade deals and development programmes” and that the motive behind comparative
law is universalization); see also Yves Dezalay & Bryant Garth, The Import and Export of
Law and Legal Institutions: International Strategies in National Palace Wars, in ADAPTING
LEGAL CULTURES, supra note 29, at 241, 241 (arguing that the new law and development
movement aims at a legal convergence).
31
See Thomas Kelley, Unintended Consequences of Legal Westernization in Niger:
Harming Contemporary Slaves by Reconceptualizing Property, 56 AM. J. COMP. L. 999,
1000–03 (2008).
32
See Michal S. Gal, The ‘Cut and Paste’ of Article 82 of the EC Treaty in Israel:
Conditions for a Successful Transplant, 9 EUR. J.L. REFORM 467, 467–74 (2007) (discussing
the basic arguments surrounding “legal transplants”); see also Pierre Legrand, The
Impossibility of ‘Legal Transplants,’ 4 MAASTRICHT J. EUR. & COMP. L. 111, 111 (1997)
(explaining the idea of “legal transplants” and critiquing them as impossible).
33
See generally Alan Watson, Comparative Law and Legal Change, 37 CAMBRIDGE L.J.
313, 313 (1978) (“[T]he two most startling . . . characteristics of legal rules are the apparent
ease with which they can be transplanted from one system or society to another, and their
capacity for long life.”).
34
See generally Legrand, supra note 32, at 114.
35
See Kelley, supra note 31, at 1000 (referring to successive waves of legal experts who
have attempted to transplant Western laws to Niger and elsewhere).
30
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II. HADIJATOU’S STORY AND THE LAWSUITS
Parts IV and V of this paper will argue that facts and law are
socially and culturally constructed, that the definitions and details of
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See id. at 1022–23 (describing the anti-slavery laws Niger adopted in 2003); see also
West Africa Slavery Still Widespread, supra note 1 (quoting Igulias Weila, the head of
Timidria, a Nigerien human rights organization, as saying: “The [anti-slavery] law was only
passed for Westerners. It was a charm-offensive aimed at those who were asking why slavery
had not been made illegal”).
37
See Kelley, supra note 31, at 1022–25 (describing the difference between Western and
Nigerien slavery).
36
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Prior to the Mani case, anti-slavery laws recently had been
introduced to Niger from the United States and Europe.36 These laws had
evolved out of the West’s particular historical and cultural experiences
with slavery, experiences that were fundamentally different than
Niger’s.37 While the application of those Western slavery laws has led to
laudable results, including freedom for Hadijatou, it also has sown
confusion among those caught in the rapid transition. A careful
examination of the Mani case and the confusion it caused belies the
assertion that law is a technology that can be easily transplanted from
one society to another, and illustrates that law is inextricably embedded
within and reflective of the society and culture in which it develops.
In pursuit of these arguments, Part II of this paper will offer a
summary of the Mani case and its surrounding facts as revealed mostly
in legal pleadings and contemporaneous French and English language
news reports. Part III will introduce some useful theory: Michel
Foucault’s notion of the episteme, comparative law’s “legal transplant”
debate, and legal anthropology’s concept of “legal pluralism.” Part IV
will examine the Mani case through the lens of those theoretical
constructs, offer a thick description of the parties to the Mani case
including their historical and cultural contexts, and reveal that the legal
battle they fought was far more complicated, and in some respects less
satisfying, than news accounts and the final judicial opinion might
suggest. Part V will conclude by describing what the Mani case means
for comparative law and by making a plea that lawyers, legal scholars,
and human right proponents acknowledge, embrace, and grapple with
the complexity that arises when laws and legal concepts, including
human rights laws, are transplanted from one historical and cultural
setting to another.
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both depend on one’s epistemological perspective, and that the events of
the Mani case look very different depending on whether one is
examining them from a Western or traditional Nigerien perspective.
Before braving that conceptual thicket, however, this section lays out
Hadijatou’s experience as described in Western news, NGO accounts,
and the written record of the various lawsuits to which she was party.38
A. The Facts
Hadijatou was born into a Nigerien ethnic subclass known as
Bouzou.39 The term Bouzou comes from the language of the Hausa
people and is a catch-all social category describing those who were, or
whose ancestors were, captured and enslaved by the Tuareg people.40
Hadijatou’s mother was owned41 by a Hausa man and, although the
facts are unclear, it appears that her mother’s master sold or gave
Hadijatou to his friend, a Hausa customary chief, when she was a child.42
In 1996, when Hadijatou was twelve years-old, the customary chief sold
her to a wealthy forty-six year-old Hausa man, El Hadj Souleymane
Naroua (“Naroua”), for the sum of 240,000 CFA,43 or approximately
$400.44
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38
In spite of dogged efforts, I succeeded in obtaining only some of the written
documents associated with these legal actions and most of them pertain to the proceeding in
the ECOWAS Court. I obtained Hadijatou’s Requête (a French term that translates roughly to
Petition or Request) that summarizes her argument for the ECOWAS Court, as well as her
formal Complaint to the same court. I also have a partial copy of Niger’s Reply to the
ECOWAS Court, apparently prepared directly in response to Hadijatou’s Requête. Finally, I
have an official copy and an unofficial English translation of the ECOWAS Court’s final
judgment in the case. The only document in my possession from the various hearings in the
Nigerien court system is the Niger Supreme Court’s opinion when it remanded the case back
to the Court of First Instance of Konni. I was able to piece together some of the arguments
made in the lower Nigerien courts, however, because the documents I did manage to obtain
quoted key passages from the proceedings in the Nigerien justice system.
39
CCJ Judgment, supra note 17, ¶ 8; Requête ¶ 1, Dame Hadijatou Mani Koraou v. La
République du Niger (le 10 septembre 2007) [hereinafter Requête] (a petition submitted by
Hadijatou Mani’s attorneys to the ECOWAS Community Court of Justice) (on file with
author).
40
See Requête, supra note 39, ¶ 1 n.1; see also infra Part IV.A (offering a more detailed
account of the meaning of Bouzou).
41
See infra Part IV.B (arguing that ownership of another human being carries different
connotations in Nigerien tradition than in Western law and society).
42
Requête, supra note 39, ¶¶ 1–2.
43
Id. ¶ 1; CCJ Judgment, supra note 17, ¶ 8.
44
Helen Duffy, Hadijatou Mani Koroua v Niger: Slavery Unveiled by the ECOWAS
Court, 9 HUM. RTS. L. REV., no. 1, 2009, at 151, 152.
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About a year after her purchase, at a time when she was not yet
thirteen years-old and on a day when she was working in the fields,
Naroua violently forced sex upon her for the first time.45 In the following
years, he forced sex upon her repeatedly and often beat her, sometimes
with a whip, “as a result of genuine or supposed rebelliousness.”46 Over
a period of nine years, she bore four children, two of whom survived.47
Hadijatou frequently attempted to leave Naroua’s home, but each time
was brought back.48
On August 18, 2005, Naroua presented Hadijatou with a certificate
of liberation from slavery.49 His motivation is unclear, but it seems likely
that word had arrived in their rural village that the Government of Niger
had in 2003—with the encouragement and assistance of the international
community—passed strict new anti-slavery laws that included steep
fines and long jail sentences for those who bought and sold slaves or
held people in slavery.50 The certificate stated that Hadijatou “was free
and was nobody’s slave.”51 It was signed by Naroua and Hadijatou, and
was endorsed and stamped by the traditional chief with administrative
authority over the village in which they lived.52
As later became obvious, Naroua fully intended to maintain control
over Hadijatou and their offspring in spite of her manumission. As soon
as Hadijatou had the certificate in hand, however, she took steps to
leave.53 Naroua forbade her departure, declaring that she had been and
continued to be his wife and thus was compelled to remain in his
household.54 She held her peace but, some months later, at
approximately age 21 and on the pretext of visiting her sick mother, left
46
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CCJ Judgment, supra note 17, ¶ 11.
Id. ¶ 11; Requête, supra note 39, ¶ 3.
47
CCJ Judgment, supra note 17, ¶ 12.
48
See Niger Ex-Slave Wins Landmark Case, BBC NEWS, http://news.bbc.co.uk/
2/hi/7692396.stm (last updated Oct. 27, 2008, 4:43 PM) (quoting Hadijatou: “‘I was beaten so
many times I would run to my family . . . . Then after a day or two I would be brought
back’”).
49
CCJ Judgment, supra note 17, ¶ 13.
50
See West Africa Slavery Still Widespread, supra note 1 (reporting that anti-slavery
activists from the Nigerien NGO, Timidria, had been active in the region where Hadijatou
lived and that they had told Naroua about the new criminal penalties and suggested that he
either marry his various wahay or let them go); Requête, supra note 39, ¶ 4 n.8.
51
CCJ Judgment, supra note 17, ¶ 76.
52
Id. ¶ 13; Requête, supra note 39, ¶¶ 4–5.
53
CCJ Judgment, supra note 17, ¶ 14; Requête, supra note 39, ¶ 5.
54
CCJ Judgment, supra note 17, ¶ 14.
45
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Naroua’s household never to return.55
B. Procedure and Legal Reasoning in Niger’s Courts
The procedural history of the various lawsuits to which Hadijatou
was party is complicated and much of the legal reasoning expressed in
the pleadings and decisions is obtuse.56 As later sections of this paper
will discuss, the procedural ping pong and the doctrinal confusion was
caused, at least in large part, by the fact that the parties and the various
courts involved were, without acknowledging it, switching back and
forth between Nigerien customary law and Western law.57
The legal odyssey began on February 14, 2006, when Hadijatou
brought a complaint before the civil and customary tribunal of the
Nigerien city of Konni seeking formal legal recognition that she was free
to live her life as she pleased.58 That tribunal issued a judgment on
March 20, 2006, finding under the customary law of the Bouzou and
Hausa people that there was never a proper marriage between Hadijatou
and Naroua because he never paid a marriage dowry or solemnized the
occasion with a religious ceremony, both of which are customarily
55
See id.
See supra note 38 and accompanying text.
See supra note 27 and accompanying text; see also infra Part IV.
58
CCJ Judgment, supra note 17, ¶ 15. The written record reveals a slight discrepancy in
that the Niger Supreme Court Opinion states that Hadijatou’s action in the customary court
was styled as an action for divorce rather than a request that the court declare her free. See
Cour Supreme [Supreme Court], Hadijatou Mani v. El Hadji Souleymane Naroua, Arrêt No.
06-306/Cout, at 1, (Niger Du 28 décembre 2006), available at http://www.juricaf.org/
arret/NIGER-COURSUPREME-20061228-06306 [hereinafter Niger Supreme Court
Decision].
This discrepancy may be explained partly by the fact that Niger’s legal system is
pluralistic by design, permitting state courts in certain circumstances to apply “customary
law.” See infra Part III.C; see also ANTI-SLAVERY, supra note 6 (stating that Niger’s courts
pass “rulings based on customary law, which is discriminatory towards women, and in direct
breach of it’s [sic] Criminal Code and Constitution, thus failing to condemn the practice to
which Hadijatou had been a victim, and to accord her the protection required by domestic and
international law”). These rulings based on customary law can be starkly different from and
contrary to state law and international law, particularly with respect to women’s rights. See id.
Confusion among courts arises because, in addition to the fact that courts are grappling with
different sources of law, many Nigerien judges, particularly in higher courts, have no training
in or particular knowledge of customary law. See Abdourahaman Chaibou, L’Influence de la
Jurisprudence Nigérienne en Droit de la Famille Sur la Coutume: Les Notions “D’Evolution
Generale du Pays” et de “Coutume Urbaine,” Revue Nigérienne de Droit, no. 2, 1999, 71, 73
(Niger) (describing and critiquing Nigerien state courts’ application of customary law).
56
57
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Requête, supra note 39, ¶ 7; CCJ Judgment, supra note 17, ¶ 16. The customary court
also noted that a wahay does not inherit from her “husband” as other spouses do. See Requête,
supra note 39, ¶ 54 (citing the decision of the customary court, Jugement coutumier no 6 du 2
mars 2006, 2nd paragraph).
60
CCJ Judgment, supra note 17, ¶ 16.
61
See id. ¶¶ 15–27 (discussing the procedural history).
62
Requête, supra note 39, ¶¶ 8–9; CCJ Judgment, supra note 17, ¶ 17.
63
Requête, supra note 39, ¶¶ 9, 11.
64
See id.
65
Id. ¶ 9.
66
See id. ¶¶ 1–2, 9; see also Niger Supreme Court Opinion, supra note 58.
67
Requête, supra note 39, ¶ 9 (quoting Judgment No. 30 rendered by the Court of First
Instance of Konni dealing with customary matters, June 16, 2006); Niger Supreme Court
Opinion, supra note 58 (quoting the same language).
68
See Requête, supra note 39, ¶¶ 8–9; Niger Supreme Court Opinion, supra note 58.
69
Requête, supra note 39, ¶ 39.
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required to seal a marriage.59 The court concluded that Hadijatou was
“free to live her own life with the person of her choice.”60
Soon after this judgment was handed down, Naroua appealed to the
Court of First Instance of Konni,61 the rough equivalent of a state
superior court or a federal district court in the U.S., which rendered a
decision on June 16, 2006 overruling the lower court’s judgment.62 The
Court of First Instance, relying on testimony by “assessors”—laypeople
who are permitted by statute to advise state judges on matters of ethnic
custom—found that Hadijatou fell within the social category of wahay.63
Although the Court of First Instance did not say so explicitly, it implied
that the status of wahay was more akin to “wife” than to “slave.”64
Specifically, the court ruled that wahay is “not a slave within the home
because she carries out her household duties without servitude or forced
work or service and is not considered the property of her husband.”65
The court went on to say that the marriage of a free man with a slave is
in accordance with Islamic principles—and indeed, follows the practice
of the Prophet Mohammad66—and thus is legal when “the means do not
exist to marry a free woman and [the man] fears falling into
fornication.”67 Finally, after implying that wahay was a sort-of “wife,”
not a sort-of “slave,”68 the Court of First Instance concluded that a
wahay could not initiate a divorce except where (1) her “new husband”
agreed to reimburse the cost paid by “the master,” (2) her master was
impotent or unable to procreate, or (3) the master had deprived her of
food or clothing69—query: was the court aware that it referred to Naroua
as “her master” even though it had just ruled that he was her “husband,”
or was it using the term “master” in its more generic sense as it might
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See id. ¶ 38. In what was apparently an alternative basis for its decision, the Court of
First Instance reasoned that Niger’s anti-slavery laws could not be applied to Naroua anyway
because Hadijatou was purchased in 1996, long before Niger’s anti-slavery criminal laws
were passed in 2003. Id. It is a complicated argument: Niger’s pluralistic legal system permits
recognition of customary law by state courts, so long as the custom is not repugnant to
fundamental principles expressed in domestic legislation or international law. See discussion
infra Part III.C. Since Niger had not adopted anti-slavery laws, there was no repugnancy and
Naroua’s actions were lawful. See Requête, supra note 39, ¶ 38.
71
CCJ Judgment, supra note 17, ¶ 18.
72
Requête, supra note 39, ¶ 11; Niger Supreme Court Opinion, supra note 58.
73
CCJ Judgment, supra note 17, ¶¶ 16, 19; see also Niger Supreme Court Opinion,
supra note 58.
74
Requête, supra note 39, ¶ 12; CCJ Judgment, supra note 17, ¶ 20.
75
Requête, supra note 39, ¶ 13; CCJ Judgment, supra note 17, ¶ 21. Gendarmerie
essentially means police station.
70
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apply to a slave master or a husband? In sum, the Court of First Instance
of Konni recognized the customary social category of wahay and,
without explicitly finding that wahay was the equivalent of “wife,”
ruled, more or less, that “the master” of a wahay enjoys all of the rights a
husband has over a wife.70
Hadijatou appealed to the final domestic authority, the Judicial
Chamber of the Supreme Court of Niger, to request “application of the
law against slavery and slavery-like practices.”71 In a judgment dated
December 28, 2006, the Supreme Court quashed the judgment of the
Court of First Instance on grounds that the lower court had relied to too
great an extent on the testimony of the customary assessors.72 Without
reaching the issue of Hadijatou’s slavery status, the Supreme Court
remanded the case to the Court of First Instance for review by a different
panel, apparently for the purpose of deciding whether Hadijatou was
entitled to a divorce, even though her claim—upheld by the first and
lowest court to address the issue—was that she had never been married
to Naroua in the first place.73 This is when the case took a truly strange
twist.
Before the Court of First Instance of Konni ruled a second time,
Hadijatou married a man of her choosing, Mr. Ladan Rabo.74 Upon
learning of this marriage, Naroua filed a criminal complaint against
Hadijatou for bigamy at the gendarmerie in Konni.75 After a brief
investigation, the police referred the complaint to the state prosecutor at
the criminal division of the Court of First Instance of Konni—the same
court that was working on Hadijatou’s slavery/divorce case—stating
among other things in the referral document that Naroua was Hadijatou’s
“master,” in spite of its recommendation that she be prosecuted for
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77
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See Requête, supra note 39, ¶ 13.
Id. ¶ 12.
78
Id. ¶ 14; CCJ Judgment, supra note 17, ¶ 22.
79
Requête, supra note 39, ¶ 15 (also stating that her new husband had not been
apprehended).
80
CCJ Judgment, supra note 17, ¶ 24.
81
Id. ¶ 25.
82
See id.
83
Id. ¶ 26.
84
CCJ Judgment, supra note 17, ¶ 27.
76
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failing to fulfill the legal obligations associated with being a “wife.”76
Soon thereafter, the criminal division found Hadijatou, her new
husband, and her brother (who had negotiated her bride price and given
her away on behalf of her family)77 guilty of bigamy and sentenced each
to six months in prison and a fine of 50,000 CFA, or approximately
$100.78 The clear implication of this ruling was that Hadijatou, as
Naroua’s wahay, was the same as his wife and could not remarry
without first obtaining a divorce. Although Hadijatou lodged an appeal
on the day the criminal judgment was handed down, and although at that
time she was four months pregnant, she and her brother were
imprisoned.79
On May 17, 2007, while Hadijatou was still in prison, her counsel
filed yet another complaint, this time criminal, in the Court of First
Instance of Konni, this time against Naroua for holding her in slavery.80
At around the same time, the new panel of the Court of First Instance of
Konni ruled on remand from the Supreme Court that Hadijatou had the
right to a divorce from her master, so long as she respected a “delay” of
three months “before any new marriage.”81 The Court of First Instance,
presumably looking for a graceful way out of its conundrum and in
contrast to what an earlier panel of the court had decided, found that
Hadijatou was a wahay, that wahay was equivalent to “wife,” and that
Hadijatou had just grounds for a divorce.82 The Court of First Instance
did not specify what those grounds might be, nor did it address her
contention that she was never married to Naroua in the first place.
Naroua, who apparently disagreed that Hadijatou had just grounds for
divorce, immediately lodged an appeal to Niger’s Supreme Court.83
On July 9, 2007, the Criminal Division of the Niamey Court of
Appeal ruled on Hadijatou’s appeal of the bigamy conviction, granting a
provisional release to her and her brother, quashing the arrest warrant
against her new husband, and deferring an ultimate ruling until after the
final decision by the “divorce judge.”84 By this, the court presumably
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meant the judge from the Court of First Instance in Konni who would
rule on whether she—a wahay—was in fact Naroua’s “wife,” and, if so,
whether she was entitled to a divorce.85
C. The ECOWAS Court Proceeding
86
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Id. ¶¶ 16–27.
See Former Sex Slave Sues Government of Niger for Failing to Protect Her, FOX
NEWS (Apr. 7, 2008), http://www.foxnews.com/story/2008/04/07/former-sex-slave-suesgovernment-niger-for-failing-to-protect-her/ (quoting one of Hadijatou’s lawyers, Ibrahima
Kane: “‘Instead of dealing with [the] slavery issue, they were dealing with [the] issue of
marriage[;] . . . . [they] chose not to even deal with the issue of whether she was a slave or
not’”).
87
CCJ Judgment, supra note 17, ¶ 28.
88
Requête, supra note 39, ¶ 21.
89
Id. Hadijatou also presented gender based discrimination claims to the court, but the
court declined to rule on those grounds. CCJ Judgment, supra note 17, ¶¶ 57–71.
90
Id. ¶¶ 35–53; Government of Niger Response to Requête at 5–8, Dame Hadijatou
Mani Koraou v. La République du Niger (le 1 mars 2008) [hereinafter Niger Response] (on
file with author).
91
CCJ Judgment, supra note 17, ¶ 54.
85
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On December 14, 2007, as the Nigerien courts tossed the hot potato
back and forth, tripping over the incompatible Western and Nigerien
social categories and presumably straining to avoid issuing any final
ruling that would admit, implicitly or explicitly, to the existence of
slavery,86 Hadijatou and her lawyers filed a submission seeking relief
from the ECOWAS Community Court of Justice.87 Among other
demands, they asked the ECOWAS Court to condemn Niger and order it
to pay damages for failing to protect Hadijatou from slavery.88 More
specifically, they claimed that Niger had violated its obligations under
various regional and international human rights laws by recognizing and
legitimizing the social category of wahay.89
The Government of Niger fully participated in the ECOWAS
proceedings, arguing initially and unsuccessfully that the ECOWAS
Court lacked jurisdiction because Hadijatou had failed to exhaust
judicial remedies within her own country, a requirement that is common
to many human rights treaties, but not the treaty that created the
ECOWAS Court.90 Niger’s second line of defense was, in essence, that
Hadijatou’s claim was moot; she may have been a slave at some time in
the past, but she had been liberated by the time she filed her complaint
with the ECOWAS Court and her claim therefore was ineffective.91
After setting out these procedural arguments, Niger’s submission
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93
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See Niger Response, supra note 90, at 11–13.
See id.
94
See id.
95
Id. at 12.
96
Niger Response, supra note 90, at 14.
97
See generally id.
98
CCJ Judgment, supra note 17, ¶ 73 (discussing arguments of the defendant, the
Republic of Niger).
99
Id. ¶¶ 1–6, at 15–16.
100
Id. ¶¶ 80, 85.
101
Id. ¶ 76.
92
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rambled somewhat.92 It began by claiming that slavery was a mere social
vestige and not really an issue in the country.93 It added that it had
complied with all of its human rights treaty obligations, or at least was
doing the best it could,94 by recently passing a constitutional provision
and stiff criminal statutes forbidding slavery.95 In an argument that was
in tension with its earlier claim that slavery was a mere historical
vestige, Niger pleaded that it is difficult to combat against concubinage
(a French/English term sometimes applied to the status of wahay)
because Niger is a majority-Islamic nation and concubines are permitted
by Islam.96 Reduced to its essence, Niger’s argument was that the
ECOWAS Court lacked jurisdiction and that, if it accepted jurisdiction,
it should recognize that this was a matter of customary family and
criminal law, and not a human rights issue.97 At oral argument, Niger’s
lawyers summed up by stating that Hadijatou lived as Naroua’s wife
“more or less in happiness as any couple.”98
The ECOWAS Court rejected Niger’s legal arguments, accepted
the slavery-related arguments made by Hadijatou and her lawyers, and
awarded costs and damages.99 The narrow legal grounds, which will be
discussed in more detail in Part IV.E, were that Naroua showed an
“intention to exercise the powers attached to the right of ownership over
[Hadijatou], even after the liberation act[,]” and that such ownership
constituted slavery under international law.100 Facts that supported the
conclusion of ownership included that she was “transferred in exchange
for money” when she was twelve, that Naroua subjected her to physical
and emotional violence as well as sexual exploitation, that he controlled
her movements, and that he obviously considered her a slave since he
had issued a liberation certificate.101 The ECOWAS Court also found
persuasive evidence that Hadijatou was a slave and not a wife in the fact
that marriage in Niger is established “by payment of the dowry, the
woman’s consent[,] and a religious ceremony,” and that none of those
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indicators was present in Hadijatou’s case.102
Niger’s specific wrong, according to the ECOWAS Court, came
when the judge in the Court of First Instance ruled that “the marriage of
a free man with a slave woman is lawful, as long as he cannot afford to
marry a free woman and if he fears to fall into fornication,” when he
should have immediately initiated a criminal prosecution against Naroua
for holding Hadijatou in slavery.103 The Court also said that Nigerien
administrative authorities, including the village chief, the gendarmerie,
and the judicial officials, should have acted to protect her.104 Instead,
Niger confronted the slavery practices with “tolerance, passivity,
inaction[,] and abstention . . . .”105
III. USEFUL THEORETICAL CONCEPTS
This paper argues that a thick, contextual analysis of the Mani case
reveals a more complicated story than that which was told by legal
documents, NGO accounts, and press reports. Such a reading requires a
skilled cultural navigator,106 and, at the risk of hubris, I nominate myself
for the task.107 By way of justification, I have spent several years of my
adult life living in Niger and I speak both French and Zarma—one of
Niger’s indigenous languages—with reasonable fluency.108 Much of my
time in Niger has been spent in rural villages, and over the past twentyfive years I have accumulated a store of knowledge about the cultural
and linguistic nuances of the country’s people. This Part will reveal
some of my own observations about Nigerien culture and will introduce
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CCJ Judgment, supra note 17, ¶¶ 66–69. The ECOWAS Court pointed to testimony in
which Nigerien administrative authorities asked Naroua if he wanted to marry Hadijatou and
he replied: “[N]o, how! I am going to buy that woman and I am going to be asked the dowry?”
Id.
103
Id. ¶ 83.
104
See id. ¶¶ 81, 85. See supra note 75 (defining gendarmerie).
105
CCJ Judgment, supra note 17, ¶ 85.
106
See MENSKI, supra note 20 and accompanying text.
107
See supra Part I.
108
Based on personal knowledge, the Zarma people, whose language is part of the
Songay-Zarma language group, live mostly in Southwestern Niger. The eastern boundary of
their traditional territory borders the Konni region where Hadijatou lived as a child, and as a
wahay. Although culturally and linguistically distinct from the Hausa and the Tuareg,—the
other Nigerien ethnic groups featured in this paper—all three groups have lived in proximity
to one another since at least the 17th century. The Zarma people and Hausa people, both
sedentary agriculturalists, share many cultural practices and social categories, and their
languages share many words, including the term wahay.
102
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some theoretical concepts that will assist in understanding the veiled
complexity of the Mani case.
A. Linguistic Variance and Epistemes
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History provides at least one example where a subtle mistranslation contributed to
tragedy. In 1940, during World War II, British translators failed to account for the subtle
differences in meaning between the English verb “control” and the French word controller.
See Alistair Horne, Mers-el-Kebir Was a Bizarre and Melancholy Action, 16 SMITHSONIAN,
no. 4, July 1985, at 122, available at 1985 WLNR 1344604. The French had surrendered to
the Nazis and the agreement, written in French, provided that the Nazis would controller the
French naval fleet in North Africa. Id. British translators assumed that controller meant
control, and that the French naval vessels would be at the Nazi’s disposal to aid their war
effort. Id. In fact, controller connotes “inspect,” or “keep track of,” and the Nazis had no
intention of deploying the French vessels. Id. Having misunderstood the subtle linguistic
difference, the British navy shelled the French ships in the port of Mers-el-Kebir and killed
more than 1,200 French sailors. See Horne, supra.
110
JEAN-PIERRE OLIVIER DE SARDAN, ANTHROPOLOGY AND DEVELOPMENT:
UNDERSTANDING CONTEMPORARY SOCIAL CHANGE 171 (Antoinette Tidjani Alou trans.,
2005) (citations omitted).
109
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Anyone who has traveled to other parts of the world has
experienced the trivial, sometimes amusing challenges of bridging
linguistic and cultural gaps. Some misunderstandings result from a lack
of mastery of one of the languages in question. To draw from my own
experience, many years ago, a school teacher in a small rural village in
Niger told me in French that his daughter had been killed by a snake. He
seemed confused at my expression of heartfelt condolences until we
realized that I had mistaken the verb mordre (to bite) with mourir (to
die). She had been bitten by a snake, but she was fine.
But the potential for confusion goes much deeper than mere
mistranslation.109 Jean-Pierre Olivier de Sardan, a French anthropologist
who has spent much of his career studying the people and the social and
political institutions of Niger, argues that the task of translating a given
term “is not merely an exercise . . . in finding the equivalent of a
[particular] word in another person’s natural language, it also involves
bringing two different semantic fields, two distinct ways of dissecting or
of perceiving reality . . . into relationship with one another.”110 Thus, one
hoping to translate between different languages must grapple with the
fact that different societies not only use different words to describe and
understand the world that they live in, but their entire world view—the
way they categorize and make sense of their lives and the lives of those
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around them—may be fundamentally different and incompatible.111
Because of these different understandings, actors from different societies
can use similar words to mean fundamentally different things.112 As this
paper will later argue, that is precisely what happened in the Mani case.
The work of Michel Foucault, one of the foremost social
philosophers of the 20th century, further illuminates how and why
meaning can be lost when attempting to translate or transplant meaning
across disparate languages and cultures.113 Foucault taught that humans
exist within communities of meaning that he called epistemes.114 An
episteme is like a cone of mutual understanding: humans who inhabit it
share a sense of history and language and divide the world into similar
categories as they endeavor to make sense of what happens around
them.115 Effective communication and understanding between people is
possible only so long as they inhabit, or have integrated into, the same
episteme.116
According to Foucault, fundamental conceptual categories, often
categories that we assume are universal, in fact evolve as a result of
social discourses117 and are specific to the episteme that we inhabit.118 To
illustrate, Foucault uses the example of “medicine,” arguing that the
meaning of medicine and the question of what is the same as and
different from medicine, is determined by the discourses119 that
predominate within a given episteme.120 In the United States and in
similar European societies, ongoing social discourses have come to
classify certain things as medicine, which we take for granted as
112
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See id. at 170–72.
See infra Part IV.
113
See, e.g., MICHEL FOUCAULT, THE ARCHEOLOGY OF KNOWLEDGE AND THE
DISCOURSE ON LANGUAGE (A. M. Sheridan Smith trans., Pantheon Books 1972) (1969).
114
Id. at 191.
115
See id. at 191–92; see also GEOFF DANAHER ET AL., UNDERSTANDING FOUCAULT 15–
18, 20 (Sage Publications 2000) (2000).
116
FOUCAULT, supra note 113, at 191–92.
117
See id. at 37–38 (arguing that different fields such as medicine are based on discursive
formations); see also TONY SCHIRATO ET AL., UNDERSTANDING FOUCAULT: A CRITICAL
INTRODUCTION 33–34 (2d ed., Allen & Unwin 2012) (2000) (explaining that discourses are
language in action and are windows that allow us to make sense of and “see” things; they
shape our understanding of ourselves and our capacity to distinguish the valuable from the
valueless, true from false, and right from wrong).
118
See FOUCAULT, supra note 113, at 38–41; see also SCHIRATO ET AL., supra note 117,
at 35–36.
119
FOUCAULT, supra note 113, at 33–34; see also SCHIRATO ET AL., supra note 117, at
37.
120
See FOUCAULT, supra note 113, at 190–91.
111
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valuable and scientific, and other things as witch-doctory or quackery,
which are different from medicine and should not be valued or taken
seriously.121 But different societies and different epistemic communities
will draw different categorical boundaries in association with the term
“medicine.”122
My own experience in rural Niger confirms that the meaning of
“medicine” can vary significantly depending on the episteme that one
inhabits. In Zarma, the word medicine, as well as the equivalent French
term medecine, is translated as safari.123 Several years ago, when I was
living in Niger’s capital, Niamey, I was concerned to hear that there had
been a measles outbreak in a rural village where the eldest daughter of
my good friend was living. Many children had died, but my friend
assured me that his daughter was fine because he had bought safari for
her. By this, I assumed he meant that he had paid for the child to be
inoculated against measles. During a later visit to the village, I
discovered that the safari he had obtained for his daughter was a
talisman prepared by a marabout, a mystical Islamic figure.124 His
daughter wore it in a leather pouch attached to her waist. From my
Western perspective, my friend had acted irrationally and risked his
child’s life by failing to treat her with medicine. To my friend, who had
grown up in a rural village in Niger and who had very little exposure to
American or European ways of knowing, there was no categorical or
practical difference between safari prepared by a mystical religious
See id. at 41–42.
See DANAHER ET AL., supra note 115, at 17–18; see also FOUCAULT, supra note 113,
at 40–41 (using psychopathology as an example to demonstrate how understanding of the
subject has evolved from varying “degrees of rationalization, conceptual code, and types of
theory . . . . [which] are not the same for different societies, at different periods, and in
different forms of discourse”). This general point was made many years earlier by the British
anthropologist, E.E. Evans-Pritchard, who explained how reliance on oracles and divination as
mechanisms of dispute resolution made perfect, rational sense to the Azande people of Sudan
from within their epistemological sense of the universe, even though such practices appeared
irrational to outside European observers. See E.E. EVANS-PRITCHARD, WITCHCRAFT,
ORACLES, AND MAGIC AMONG THE AZANDE 146–48 (abr. ed., Oxford Univ. Press 1976)
(1937) (describing the “incredulous or contemptuous” reactions of the English who “sought to
explain away Zande behaviour by rationalizing . . . [and] interpreting it in terms of [their]
culture”); see also id. at 65, 151–52; OSCAR G. CHASE, LAW CULTURE, AND RITUAL:
DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT 25–26 (2005).
123
Dictionary Zarma - English, DJERMA.NL, http://www.djerma.nl/dictionary_ze/
Dictionary_ZE.html (last updated Mar. 25, 2012) (defining medicine as safari).
124
See
Zarma
Religion
and
Expressive
Culture,
EVERYCULTURE,
http://www.everyculture.com/Africa-Middle-East/Zarma-Religion-and-ExpressiveCulture.html (last visited Jan. 9, 2014).
121
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122
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125
This exchange took place in 2003-2004 when I had a Fulbright Fellowship in Niger.
At around the same time, the same friend urged me to buy safari before departing on an
overland trip in West Africa. At first I thought he meant anti-malarial drugs or antibiotics for
travelers’ stomach complaints. In fact, he wanted me to buy a talisman to protect me from
violent attack by robbers. He explained helpfully that if I were wearing the talisman when a
bad man attempted to stab me, the blade would melt and drip to the ground in front of me.
126
See Thomas Kelley, Squeezing Parakeets into Pigeon Holes: The Effects of
Globalization and State Legal Reform in Niger on Indigenous Zarma Law, 34 N.Y.U. J. INT’L
L. & POL. 635, 707 (2002).
127
See id. at 638; see also Gillespie, supra note 19, at 684–86 (discussing how meaning is
lost when law is transplanted from one interpretive community to another because
“[i]nterpretive communities are constitutive of regulatory preferences, because they build
common epistemological assumptions about the nature of regulatory problems and the
appropriate regulatory responses”).
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figure and that delivered through a syringe or a pill by a white-coated
professional.125
I offer one more personal illustration of the variability between
epistemes, this one more directly linked to law. When I first arrived in
rural Niger as a legal academic with the intention of performing research
on non-state customary law, I was often confounded: my research
consisted of posing questions intended to ferret out Nigerien legal
concepts and institutions that were equivalent to those in the U.S. and
Europe. So, for example, I wanted to understand how Nigeriens
accomplished “criminal law” in rural villages, and I doggedly posed
questions about factual investigation and punishment of petty crimes
such as theft. I made little headway and at first I assumed that I simply
had not identified the correct words in Zarma for “crime,”
“investigation,” and “punishment.” Eventually, I discovered that the
socially constructed category of “law” was different in rural Nigerien
villages, and did not exist as an institution separate from history, family
relations, and spirituality.126 Further, the concept of punishing a petty
crime did not exist because the point of “law” was not to punish and
isolate but to keep the village intact. Eventually, I learned that if I were
to make sense of dispute resolution and “law” in rural Niger, I would
have to abandon my epistemological assumptions about what “law”
meant and do my best to see the world from the perspective of those I
was studying.127
In sum, Foucault’s theory and my own experience reveal that
humans live within epistemes, that meaning and ways of knowing are
generated within those epistemes, and that because of their variability,
people from different social and cultural circumstances (different
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because of temporal or geographic separation) categorize, understand,
and explain the world in divergent and sometimes mutually
incomprehensible ways.128 Because of this difference, it is challenging,
and sometimes impossible, for us to understand the world through the
eyes of others, and vice versa.129
Before leaving Foucault and epistemes, it is important to note that,
although Foucault portrayed epistemes as evolving over time as the
result of the give and take of social discourse, he did not claim that
individual humans lack agency and are simply products of discursive
flows.130 An individual may through her actions affect social discourse
and, more broadly, peoples’ understanding of the world around them.131
As this paper will later argue, Hadijatou and the NGOs and lawyers who
made common cause with her contributed significantly to altering social
discourses and epistemological understandings regarding slavery in
Niger.132
B. Comparative Law Theory: Culturalists Versus Transferists
In spite of comparative law’s tendency to favor the “country and
western” tradition,133 a vigorous and sometimes heated134 debate has
unfolded over the past several decades among comparativists about
whether it is possible to effectively transfer law from one society to
another.135 At one pole, the “culturalists” argue that law is so
See supra notes 113–27 and accompanying text.
See supra note 127 and accompanying text; see also DANAHER ET AL., supra note
115, at 15.
130
Some critics have misinterpreted Foucault’s rejection of the idea of a self-governing
subject. See, e.g., DANAHER ET AL., supra note 115, at 31–32, 44.
131
Id. at 31.
132
See infra Part V.
133
Gillespie, supra note 19, at 658.
134
Gal, supra note 32, at 469 (describing the debate as “heated”). See, e.g., Lawrence
Friedman, Some Comments on Cotterell and Legal Transplants, in ADAPTING LEGAL
CULTURES, supra note 29, at 93, 93 (claiming that Watson’s theories about the ease and
importance of legal transplants cannot be taken seriously and are based on ludicrous
premises); Legrand, supra note 32, at 113–14 (describing Watson’s transferist theories as
“simplistic”).
135
See Gal, supra note 32, at 469–71 (summarizing the legal transplant debate as it has
unfolded, primarily through the 1990s and 2000s but with some scholarly efforts dating to the
1970s); Inga Markovits, Exporting Law Reform—But Will It Travel?, 37 CORNELL INT’L L.J.
95, 95–96 (2004) (“On the far side of the [transplant] debate, doctrinalists like Alan Watson
see no problem with exporting law from one historical period to another or from one country
to the next. . . . At the other end of the spectrum, post-modern scholars like Pierre Legrand
128
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inextricably intertwined with the society and culture in which it develops
that transferring it to a different society and culture is difficult or even
impossible.136 At the other pole, the “transferists” argue that law is a
technology that is managed and controlled largely by elite legal
professionals, and that it can, should, and often has been easily
transferred between and among different societies.137
Tracing the metes and bounds of this debate begins with Alan
Watson, who often is named as the father of the “transferist” school of
comparative law theory. Watson makes for a good starting point because
his theory is conceptually simple—some say simplistic138—and permits
the unfamiliar reader a comfortable entre.
Watson believed that “[a] successful legal transplant—like that of a
human organ—will grow in its new body, and become part of that body
just as the rule or institution would have continued to develop in its
parent system.”139 Grounding his arguments primarily on the history of
law in ancient Rome and Europe,140 he believed that the growth and
development of law over temporal and geographic space is explained
principally by the transplanting of existing legal ideas to new times and
places.141 He further believed that “transplanting of legal rules is socially
easy,” even when the societies in question are fundamentally different.142
According to Watson, this is so because the mechanisms of legal change
in all societies are controlled largely by professional elites—such as
lawyers, legislators, judges, and jurists—who share common traits and
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reject the notion that legal transplants can successfully take root in foreign soil. . . . And in
between these two extreme positions, legal sociologists like Lawrence Friedman explain the
law’s migrations with the very fact that it is socially determined.”).
136
See Gal, supra note 32, at 469 (using the term “culturalists” and summarizing their
arguments).
137
See id. (using the term “transferists” and summarizing their arguments). It should be
noted that the terms “transferist” and “culturalist” are not universally used to describe the
combatants in this scholarly debate. For a summary of the terms used by various scholars, see
Nelken, supra note 29, at 15–19. See also Roger Cotterrell, Is There a Logic of Legal
Transplants?, in ADAPTING LEGAL CULTURES, supra note 29, at 70, 73 (discussing the term
“mirror theory” to refer to his opponents in the legal transplant debate, since they assert that
law is a mirror of society).
138
See Legrand, supra note 32, at 114.
139
ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 27
(2d ed., Univ. of Ga. Press 1993) (1974).
140
William Ewald, Comparative Jurisprudence (II): The Logic of Legal Transplants, 43
AM. J. COMP. L. 489, 490 (1995).
141
WATSON, supra note 139, at 95.
142
Id. at 95–96.
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values and who communicate effectively with one another.143 The upshot
of Watson’s theories about legal transplant and change is that the
transplant can be carried out successfully without bothering to
understand the nuances of the society and culture into which it is being
transferred.144 Effective reception of law “is possible and still easy when
the receiving society is much less advanced materially and culturally.”145
The preponderance of recent comparative law scholarship has
leaned away from Watson and toward the “culturalist” position.146 Pierre
Legrand, the Dutch professor of Comparative Legal Culture, expresses
the strongest version of the culturalist thesis. Echoing Foucault’s
epistemological theories,147 Legrand argues that “not just the law is
socially determined, but also our thinking about the law.”148 Legrand
defines the meaning of any legal concept or rule:
[M]eaning is . . . a function of the application of the rule by its
interpreter . . . . This ascription of meaning is predisposed by the way the
interpreter understands the context within which the rule arises and by the
manner in which she frames her questions, this process being largely
determined by who and where the interpreter is and, therefore, to an extent at
least, by what she, in advance, wants and expects (unwittingly?) the answers to
be. The meaning of the rule is, accordingly, a function of the interpreter’s
epistemological assumptions which are themselves historically and culturally
conditioned.149
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See ROGER COTTERRELL, LAW, CULTURE AND SOCIETY: LEGAL IDEAS IN THE
MIRROR OF SOCIAL THEORY 114 (2006); see also Markovits, supra note 135, at 95 (“Watson
believes that law is not the natural outgrowth of a particular society, but the intellectual
creation of clever lawyers, easily adaptable to local use by other clever lawyers elsewhere on
the globe.”).
144
See WATSON, supra note 139, at 99; see also Gal, supra note 32, at 470–71.
145
WATSON, supra note 139, at 99.
146
See Gal, supra note 32, at 468 (claiming that it is now well recognized that law does
not transfer easily and that legal “transplants face many obstacles to their successful
implementation”); BRIAN Z. TAMANAHA, A GENERAL JURISPRUDENCE OF LAW AND
SOCIETY 110 (2001) (arguing that few contemporary theorists agree entirely with Watson).
147
See infra Part III.A.
148
Gal, supra note 32, at 470.
149
Legrand, supra note 32, at 114.
150
See id. at 115 (arguing that the interpretation of a legal rule depends on the
143
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Stated in Foucault’s terms, the interpretation of any legal concept or
rule will depend on the interpretive community—the episteme—that one
inhabits, and inhabitants of other epistemes will interpret the exact same
rule in ways that are different and completely unpredictable.150
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interpreter’s epistemic conventions and will vary between when interpreted in different places
and times).
151
Id. at 116–17.
152
Id. at 117.
153
Legrand, supra note 32, at 120.
154
Otto Kahn-Freund, On the Uses and Misuses of Comparative Law, 37 MOD. L. REV. 1,
27 (1974).
155
Id. See also TAMANAHA, supra note 146, at xii (acknowledging generally that law and
society are intertwined, but noting that there are examples of successful legal transfer between
seemingly different countries, including the U.S. and Micronesia).
156
Daniel Berkowitz et al., The Transplant Effect, 51 AM. J. COMP. L. 163, 167–68
(2003).
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Therefore, a meaningful legal transplant can only happen when “both the
propositional statement as such and its invested meaning—which jointly
constitute the rule—are transported from one culture to another.”151
Because this is virtually impossible—because the history, culture,
language, and modes of interpretation can never be reproduced exactly
in a recipient country—the true meaning of any legal transplant will fail
to “survive the journey from one legal system to another. . . . [T]he
imported form of [the legal concept or rule] is inevitably ascribed a
different, local meaning, which makes it ipso facto a different rule.”152 In
sum, legal transplants between different cultures, languages, and
epistemic communities are not just difficult, but impossible.153
If Watson and Legrand represent the poles of the legal transplant
debate, most comparative law scholars espouse a more comfortable
middle position: in certain circumstances effective legal transplant is
possible, but, partly for the reasons laid down by Legrand (and indirectly
by Foucault), very difficult to accomplish. There is too much ground to
cover to capture the details and nuances of the various scholars’
conclusions, so the following summary must suffice.
Otto Kahn-Freund weighed in early with the argument that the
ability to transfer a given legal rule depends on the social, cultural, and
political similarities between the transferor and the transferee.154 The
more similar the histories, cultures, and political systems of the two
countries, the more likely the transplant will take root and flourish.155
This intuitively sensible conclusion was largely supported by a
more recent, widely cited empirical study of legal transplants performed
by Berkowitz, Pistor, and Richard, who concluded that legal transplants
succeed where a demand for that law exists within the receiving
society.156 Not surprisingly, they also concluded that voluntary legal
reforms initiated by receiving countries are more successful than reforms
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157
Id. at 179. Their study also debunked the once popular “legal family” theory of
transplants, which had held that the success of a legal transplant depended on whether the
receiving country’s laws were derived from a common law or civil law tradition. Id. at 166–
69.
158
See Thomas Kelley, Wait! That’s Not What We Meant by Civil Society!: Questioning
the NGO Orthodoxy in West Africa, 36 BROOK. J. INT’L L. 993, 1006–08 (2011) (describing
failed attempts to transplant Western family law to Niger); see also Markovits, supra note
135, at 106 (noting that some transplants are “so out of sync with their new cultural
surroundings, that they seem as likely to take root as an orchid in a cabbage field”); Friedman,
supra note 134, at 97.
159
Markovits, supra note 135, at 99.
160
Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law
Ends Up in New Divergences, 61 MOD. L. REV. 11, 12 (1998).
161
Id.
162
Id.
163
Id.
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imposed by outside forces.157
Others have observed that laws governing certain domains of social
and political life are much more likely to transfer easily between
countries. For example, family law, which goes to the heart of personal
relationships within a given society and which requires the acquiescence
and cooperation of the population if it is to take root, is extremely
difficult to transplant.158 Law establishing commercial arbitration
mechanisms, on the other hand, can be carried as “potted plants” that
exist in their own, narrow legal world within society; they require little
participation or attention by the citizenry, and therefore are
comparatively easy to move from one culture to another.159
Another helpful theoretical explanation of legal transplants, one
that falls into the middle ground between Watson and Legrand, comes
from Gunther Teubner, who helped explain the dynamic and
unpredictable nature of legal transplants by introducing the notion of
“legal irritants.”160 Teubner chafed at the use of the word “transplant,”
which he believed implied that either the transplant succeeded and the
patient (in this case the recipient country’s law and legal system) lived,
or it failed and the patient died.161 In his view, transfers of law from one
society to another often do not displace pre-existing legal meanings and
practices, but instead “trigger[] a whole series of new and unexpected
events.”162 Teubner argued that transplanted law “will unleash an
evolutionary dynamic in which the external rule’s meaning will be
reconstructed and the internal context will undergo fundamental
change.”163 Put differently, people who share common epistemological
frameworks and tacit understandings are likely to learn from one another
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and they together will reinterpret and put into action (or not) an outside
law that is introduced.164
This paper does not take an explicit position on which comparative
law scholar’s legal transplant argument is most accurate and descriptive.
The sections that follow, however, should provide persuasive evidence
that Watson’s extreme position is fatuous and that legal transplants—in
this case the transplant of anti-slavery laws from the United States and
Europe to Niger—are at the very least complicated, even when they
might appear to be successful.165
C. Legal Pluralism
Before launching into a thick description of the events surrounding
the Mani case and situating them within the theoretical discussions
summarized above, one important concept remains: legal pluralism. To
understand what happened in the Mani case, one must realize that in
most places, including the United States,166 law is produced and enforced
by a multiplicity of social institutions,167 and states rarely, if ever, enjoy
a monopoly in that realm.168 This is particularly true in Niger and across
Africa as a result of colonialism.169
When European colonizers arrived in Africa, they found a lack of
written rules and formal judicial institutions and therefore assumed there
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164
See Spencer Weber Waller, Neo-Realism and the International Harmonization of Law:
Lessons from Antitrust, 42 U. KAN. L. REV. 557, 568 (1994) (arguing that modern political
philosophy teaches that “[legal] ideas and theories are not universal, but are embedded in a
specific temporal, physical and social setting that permits them to flourish”).
165
See infra Part IV.
166
See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS
SETTLE DISPUTES, at viii, 4, 40 (1991) (finding that cattle farmers in Shasta County,
California, settle disputes in accordance with local custom and without reference to state law);
JAMES M. ACHESON, THE LOBSTER GANGS OF MAINE 75 (1988) (“Fishermen feel strongly
that the law should be kept at bay and that people should handle their own
problems. . . . When a man’s traps are missing, taking the law into his own hands is not only
more effective but also maintains his standing among fellow fishermen.”).
167
See ELLICKSON, supra note 166, at 141 & n.14 (citing Sally Faulk Moore’s assertion
that law arises out of a multiplicity of “semi-autonomous social fields”); MENSKI, supra note
20, at 26.
168
Cf. MENSKI, supra note 20, at 26.
169
See Kelley, supra note 126, at 653 (“[M]ost Zarmas—who were living as they had
since the fall of the Songhay Empire—were grouped in scattered villages with a lack of
centralized authority and no fixed rules, written or otherwise, governing their social
relations.”); MENSKI, supra note 20, at 380, 384–85; TAMANAHA, supra note 146, at 114.
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was no “law.”170 Perceiving such a lack, they naturally imposed their
own law on their colonial possessions by arranging for them to adopt
written codes that mirrored those that governed European societies.171
Because the colonizers generally lacked the resources and the will to
impose their laws beyond the larger African cities, however, they
governed by means of “indirect rule”: they permitted natives,
particularly rural natives, to govern themselves according to their own
customs, so long as nothing in those customs was repugnant to European
values and formal laws.172 The result of indirect rule, a result that persists
to this day in many parts of Africa, is that formal state law often failed to
penetrate into rural areas, and people living outside of large cities had
little connection with and often no knowledge of state law.173 Another
result, one that is directly relevant to the Mani case, is that, upon
independence, many former colonies, including Niger, officially
recognized and endorsed multiple systems of law,174 one governing the
colonists and those natives who had adopted their language and
culture,175 and another (or multiple others) for the remainder of the
population.176 Even today, state court judges are frequently called upon
to rule based on customary law even though they have no training in or
knowledge of those customs.177
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170
Kelley, supra note 126, at 652–53. See MENSKI, supra note 20, at 381; TAMANAHA,
supra note 146, at 114–15.
171
See Kelley, supra note 126, at 654.
172
TAMANAHA, supra note 146, at 113 (mentioning so-called “repugnancy clauses” in
formal colonial law and adding that the colonizers ruled through indigenous elites but
maintained the superiority of Western law “when the colonizers’ vital interests were at
stake”); Kelley, supra note 126, at 652–53 (discussing indirect rule and noting that the French
colonizers often invented aspects of “customary law” to make the administration of colonies
more manageable).
173
Kelley, supra note 126, at 659 (“[T]he vast majority of rural people, including village
chiefs, have ignored the oft-changing array of rules emanating from the capital. They do not
know, and rarely care, what the state law says about a particular matter.” (citations omitted));
see also TAMANAHA, supra note 146, at 113, 116.
174
Kelley, supra note 126, at 659.
175
See id. at 655–57 (describing Niger’s so-called évolué, an educated, elite, Europeanleaning class of citizens who, during and after the colonial era, adopted French culture and
law).
176
See ANTI-SLAVERY INTERNATIONAL & ASSOCIATION TIMIDIRA, SLAVERY IN NIGER:
HISTORICAL, LEGAL AND CONTEMPORARY PERSPECTIVES 70–73 (Galy kadir Abdelkader ed.,
2004) [hereinafter SLAVERY IN NIGER], available at http://www.antislavery.org/
includes/documents/cm_docs/2009/f/full_english_slavery_in_niger.pdf (arguing that legal
pluralism still predominates in Niger, particularly in the realm of marriage and family
relationships).
177
See Chaibou, supra note 58, at 73 (describing contemporary legal pluralism in Niger
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The lack of penetration of European laws and culture into rural
Africa gave rise not only to multiple legal systems, but also “multiple
interpretive communities”178 within the boundaries of the same country.
Returning to Foucault’s theoretical construct, Africans who lived in
urban areas and who adopted the language, culture, and law of the
colonial power came to inhabit a new, European episteme.179 The
remainder of the population, living mostly in rural areas, continued—
and continues—to live in a traditional African episteme that categorizes
and understands the world in vastly different ways. As Part IV will
discuss, Naroua and Hadijatou were inhabiting an African episteme, one
that sanctioned the relationship between them, while the human rights
NGOs, their lawyers, and the ECOWAS Court inhabited quite another.
The Mani case is a story about Hadijatou’s triumph, but it also a story of
what happened when two fundamentally different epistemes met and
clashed.
IV. MAPPING THE EPISTEMOLOGICAL GULF IN THE MANI CASE:
DIVERGENT UNDERSTANDINGS OF “SLAVE” AND “WIFE”
A. Locating the Parties’ Ethnicities
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and remarking that state judges are not trained in custom).
178
Gillespie, supra note 19, at 718.
179
See supra Part III.A.
180
I face a linguistic conundrum concerning the terms “slavery” and “marriage.” A
central tenet of this paper is that those terms mean something quite different in the U.S. and
Europe than they do in Niger, and that they were used inexactly in the Mani lawsuit. And yet,
for the sake of simplicity and to avoid confusing my readers, I am using these terms to refer
both to Western and Nigerien social institutions. I could indicate my skepticism about the
accuracy of these terms, at least when applied to Nigerien society, by continually surrounding
them with quotation marks. Instead, I will rely on readers to keep in mind that the meaning of
the terms depends on the context.
181
See CCJ Judgment, supra note 17, ¶ 8; see also Requête, supra note 39, ¶ 1.
182
See Requête, supra note 39, ¶ 1 n.1.
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If one is to understand Hadijatou’s and Naroua’s conceptions of
slavery and marriage,180 one first must understand their ethnic origins.
According to the pleadings in the Mani case, Hadijatou was born into the
Nigerien ethnic subclass known as Bouzou.181 The word Bouzou comes
from the Hausa language, but it is applied to people who were captured
and enslaved, or whose ancestors were captured and enslaved, by the
Tuareg people of northern Niger.182 Tuaregs are ethnically and culturally
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distinct from Hausas.183 Related to the Berber people, they are nomadic
pastoralists who roam widely across the Sahara Desert and the Sahel and
who historically enjoyed reputations as fearsome warriors.184 Before the
arrival of French colonizers in the region, Tuaregs frequently raided and
captured slaves from other sub-Saharan ethnic groups.185 According to
scholars of contemporary slavery, Tuaregs continue to practice slavery
to a greater degree than many of the neighboring ethic groups and their
version of slavery is particularly cruel and degrading.186
Hausa people are sub-Saharan African agriculturalists and traders
who populate Niger’s Sahel, the semi-arid band that runs along the
southern border of the Sahara.187 In the 15th to 19th centuries, the Hausa
built powerful city-states in what today is southern Niger and northern
Nigeria.188 Today, Hausa speakers comprise approximately 56% of
Niger’s population while the Tuareg—who are difficult to count because
they still roam widely—comprise approximately 8%.189
Although the two groups are ethnically distinct, they blur at the
margins, particularly when it comes to the Bouzou people. Before
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183
See The World Factbook (Niger), U.S. CENT. INTELLIGENCE AGENCY,
https://www.cia.gov/library/publications/the-world-factbook/geos/ng.htmlCIA Factbook? (last
visited Dec. 24, 2013) (listing Tuaregs and Hausas as separate ethnicities).
184
Tuareg People, WIKIPEDIA, http://en.wikipedia.org/wiki/Tuareg_people (last updated
Jan. 10, 2014); see also Samuel Decalo, Review, Touaregs Nigériens: Unité Culturelle et
Diversité Régionale d’un Peuple Pasteur, 23 J. MOD. AFR. STUD. 536–37 (1985) (referring to
Tuaregs as “dreaded warriors”).
185
See JONATHAN DERRICK, AFRICA’S SLAVES TODAY 36 (1975); see also Stephen Baier
& Paul E. Lovejoy, The Tuareg of the Central Sudan: Gradations in Servility at the Desert
Edge (Niger and Nigeria), in SLAVERY IN AFRICA: HISTORICAL AND ANTHROPOLOGICAL
PERSPECTIVES 391, 399 (Suzanne Miers & Igor Kopytoff eds., 1977) (explaining the
assimilation of outsiders into Tuareg society); Roberta Ann Dunbar, Slavery and the Evolution
of Nineteenth-Century Damagaram (Zinder, Niger), in SLAVERY IN AFRICA: HISTORICAL
AND ANTHROPOLOGICAL PERSPECTIVES, supra, at 155, 159 (listing how slaves were
procured).
186
MOUSTAPHA KADI OUMANI, UN TABOU BRISÉ: L’ESCLAVAGE EN AFRIQUE, CAS DU
NIGER 137–38, 147 (2005) (noting that slavery perpetrated by Tuaregs in Niger is particularly
harsh and degrading).
187
Hausa People, WIKIPEDIA, http://en.wikipedia.org/wiki/Hausa_people (last updated
Jan. 9, 2014).
188
See Catherine Coles & Beverly Mack, Women in Twentieth-Century Hausa Society, in
HAUSA WOMEN IN THE TWENTIETH CENTURY 3, 4 (Catherine Coles & Beverly Mack eds.,
1991) (referring to Hausa city-states in Northern Niger and Southern Niger “with their
complex bureaucracies and highly developed economies”).
189
See Andrews Atta-Asamoah, Overview of the Nature and Management of Diversity in
Africa 31 (Inst. for Sec. Studies, 2012), available at http://www.un.org/africa/osaa/
reports/Diversity%20in%20Africa_final%20version.pdf.
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Europeans colonized the region in the 19th and early 20th centuries,
frequent Tuareg raids into sub-Saharan zones resulted in many captives
and a large slave population.190 Rather than taking their slaves into the
desert to tend their herds, however, Tuaregs often installed them in
agricultural encampments at the edge of the desert.191 The job of these
Bouzou people was to produce agricultural surplus and to pay annual
grain tribute to their Tuareg overlords.192 In times of plenty, the Tuareg
masters would appear in Bouzou villages periodically to collect their
due.193 In times of drought, when there was insufficient forage for their
animals, the Tuaregs would descend from the desert and live among the
Bouzou, relying on them for sustenance until conditions improved.194
Even though the Bouzou were slaves of the Tuareg, they often lived
among the Hausa and many of them assimilated into Hausa culture and
adopted Hausa language.195 Some Bouzou even lost contact with their
Tuareg overlords and entered a liminal state in which they still were
referred to as Bouzou but had no masters and were, for all intents and
purposes, Hausa.196
The legal documents in the Mani case refer to Hadijatou as Bouzou
and, thus, a servile member of the Tuareg people;197 however, she grew
up speaking Hausa and was assimilated into Hausa culture.198 Also, her
purchaser, Naroua, was a member of a prominent Hausa family.199
Therefore, when attempting to understand slavery and marriage from the
perspective—from within the episteme—of the actors involved in the
Mani case, Hausa cultural traditions are the most relevant.
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See DERRICK, supra note 185, at 37 (reporting that as many as three-quarters of the
Tuareg population in some regions was comprised of slaves); Baier & Lovejoy, supra note
185, at 397–98 (noting that only a small percentage of Tuaregs were considered noble).
191
See Jean-Pierre Olivier de Sardan, The Songhay-Zarma Female Slave: Relations of
Production and Ideological Status, in WOMEN AND SLAVERY IN AFRICA 130, 134 (Claire C.
Robertson & Martin A. Klein eds., 1983) (stating that Tuaregs often installed their slaves in
independent villages that paid the Tuaregs); OUMANI, supra note 186, at 94 (stating that
Tuareg slaves often exist in a state of semi-liberty on the edge of the desert).
192
Olivier de Sardan, supra note 191, at 134; see Baier & Lovejoy, supra note 185, at
401.
193
See Baier & Lovejoy, supra note 185, at 401.
194
See id.
195
Id.
196
See Igor Kopytoff & Suzanne Miers, African ‘Slavery’ as an Institution of
Marginality, in SLAVERY IN AFRICA: HISTORICAL AND ANTHROPOLOGICAL PERSPECTIVES,
supra note 185, at 3, 26.
197
CCJ Judgment, supra note 17, ¶ 8.
198
See id.
199
See id.
190
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B. The Meaning of Slave
Among sub-Saharan Nigeriens, including the Hausa, numerous
servile social categories are typically folded into the English word
“slave” or its French equivalent, esclave.200 To borrow an example from
the Zarma people of Niger,201 a newly captured slave who must be
restrained to prevent him from attempting to escape, is referred to as
tam.202 The tam looks much like Westerners’ conception of a slave: “he
is completely at the mercy of his master and may be sold, bartered,
pledged, exchanged, or killed, and may be required to perform onerous
and dangerous labor such as well digging.”203
A servile person who descends from a tam but who has lived for
several generations among members of a noble lineage and who has
been assimilated into their extended family is referred to as horso204:
The horso experiences little of the violence and overt repression that a
Westerner associates with slavery. He wears no chains and may not be beaten
or sold. He often is raised beside his master’s children, and when he grows
older is addressed with respectful terms such as “father” or “brother.”205
The horso often must live in a separate section the village reserved for
See Kelley, supra note 31, at 1013 (citations omitted) (discussing various Zarma social
categories that are lumped together under the English word “slave” and the French word
esclave); OUMANI, supra note 186, at 135 (discussing various “slave” social categories in
Hausa society). See generally SLAVERY IN NIGER, supra note 176, at 25–34 (discussing
numerous social categories among various ethnicities in Niger, all of which are lumped under
the English word “slave”).
201
I fully realize the perils of generalizing when talking about diverse African peoples. In
this instance, I refer to Zarma language and culture as a way of illustrating Hausa language
and culture. I do so for two reasons. First, and most obvious, I am most familiar with Zarma
language and culture. See supra note 108 and accompanying text. Second, the servile social
categories in Hausa and Zarma societies are relatively similar. See OUMANI, supra note 186,
at 135 (explaining Hausa servile categories); Dunbar, supra note 185, at 163 (explaining
Hausa servile categories); see also Requête, supra note 39, ¶ 2 (using the Hausa term
wahay—the same term and same social category used by the Zarma people—to describe
Hadijatou’s servile social status).
202
Kelley, supra note 31, at 1013–14. I discovered the word tam and the social category it
reflects on my first day as a Peace Corps volunteer in an isolated Zarma village in 1986. When
I told a group of village elders that my name was Tom, they appeared shocked and
embarrassed and suggested that I choose a new name. I later learned what the word tam meant
in Zarma and that the pronunciation of it and my name were similar.
203
Id. at 1014.
204
Id.
205
Id. at 1014–15 (citations omitted).
200
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207
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Kelley, supra note 31, at 1014–15.
Id. at 1014 n.84.
208
Id.
209
Id.
210
Requête, supra note 39, ¶ 2.
211
Id.; see also OUMANI, supra note 186, at 81–84 (describing the status of wahay but
employing the French term cinquieme femme).
212
Requête, supra note 39, ¶¶ 3–4; CCJ Judgment, supra note 17, ¶ 9.
213
Requête, supra note 39, ¶ 2.
214
Id. ¶ 2 n.2 (citing OUMANI, supra note 186, at 83).
206
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horso, must depend on the noble lineage for access to agricultural land,
and will never be permitted to marry outside of or forget his servile
status.206
Yet another servile category is wahayize, the son of a noble father
and a servile mother.207 The wahayize is invested with his father’s
nobility and has the right to inherit and vie for political leadership, but
he carries the stigma of servile blood throughout his lifetime.208 “Many
great political leaders and warriors in Zarma history have been wahayize
and it is said that they are driven to greatness by a desire to prove
themselves and overcome their servile origins.”209
At the time that Naroua purchased Hadijatou, it was understood by
both parties that she was entering yet another servile status, that of
wahay.210 Based on my knowledge of English, French, and Zarma, the
closest equivalent in English would be “concubine,” but assigning that
English term (or the French equivalent) to the Nigerien social category
would leave out important nuances.
The various pleadings in the Mani case correctly state that wahay is
a captive female or the female descendant of a captive—typically a
young female—who is compelled to perform labor in the master’s
household and to make herself sexually available to him.211 The
arrangement is often undertaken by wealthy and powerful men who
already possess the four wives permitted by Islamic law, and who, with
the approval of Islamic leaders and customary Nigerien society, add one
or more wahay to their households.212 In general, the wahay does
housework and other labor and is at the beck and call of the male head of
the household, obligated to make herself sexually available to him at his
whim.213 The wahay must respect her master’s will: if she submits, she
can live in relative peace; if she resists, her life becomes a living hell.214
The purchaser of a wahay typically does not pay a bride price for the
young woman, but instead pays the young woman’s master a fixed price
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depending on her age and beauty.215
Niger is a predominantly Muslim country,216 and Islam does not
explicitly forbid slavery217 nor does it discourage sexual contact between
a free man and an unfree woman.218 Verses from the Koran, though
written in metaphorical language, are widely interpreted to mean that
men who cannot afford to marry may have sexual relations with servile
women.219 It presumably was this Koranic nostrum that the Court of First
Instance of Konni had in mind when it indicated that a man may keep
wahay if he “fears to fall into fornication.”220
Because the Koran permits an Islamic man only four wives,221
wahay are sometimes referred to in Niger by the French term cinquieme
femme, or “fifth wife.”222 Some men in Nigerien society have numerous
“fifth wives,” and, indeed, Hadijatou was one of eight in Naroua’s
household.223
Nigerien notions of slavery, including the category of wahay or
fifth wife, do not fit neatly into Western conceptions of slavery. In the
West, we view slavery as a sui generis social category defined by
ownership.224 In keeping with our historical experience with plantation
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215
OUMANI, supra note 186, at 81–82 (adding that there is no pretense of joy or religious
spirit involved in the transaction).
216
The World Factbook (Niger), supra note 183 (reporting that 80% of Nigeriens are
Muslim); see Kelley, supra note 126, at 645–50 (describing Niger’s syncretic brand of Islam).
217
WILLIAM GERVASE CLARENCE-SMITH, ISLAM AND THE ABOLITION OF SLAVERY 22
(2006).
218
KECIA ALI, MARRIAGE AND SLAVERY IN EARLY ISLAM 39 (2010).
219
CLARENCE-SMITH, supra note 217, at 46.
220
CCJ Judgment, supra note 17, ¶ 83.
221
ALI, supra note 218, at 176.
222
Requête, supra note 39, ¶ 2 n.4.
223
Id. ¶ 4.
224
Kelley, supra note 31, at 1023–24. It is, of course, an oversimplification to assert that
slavery is an entirely monolithic social category in the American or Western worldview. Id. at
1013 n.79. “We know, for example, that American slavery vernacular includes the term
‘house slave,’ which in the popular imagination is less oppressive than the status of field
slave.” Id. Also, scholars have identified many sub-categories of slavery in the New World.
Id. “For example, nineteenth century Brazilian slavery included the category of coartado, a
slave who had begun making installment payments toward his own manumission and who
therefore was granted a comparatively high degree of mobility and autonomy.” Kelley, supra
note 31, at 1013 n.79 (citing A.J.R. RUSSELL-WOOD, SLAVERY AND FREEDOM IN COLONIAL
BRAZIL xiii (2d ed. 2002)). Historian Rebecca Scott has added further nuance to discussions
of New World slavery by demonstrating that slaves’ social statuses and legal rights varied,
sometimes nonsensically, when they physically moved among New World jurisdictions. See,
e.g., Rebecca J. Scott, “She . . . Refuses to Deliver Up Herself as the Slave of Your
Petitioner”: Émigrés, Enslavement, and the 1808 Louisiana Digest of the Civil Laws, 24 TUL.
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slavery, “[t]he slave is a piece of chattel to be bought, sold, gifted,
traded, used, or wasted according to the owner’s whim.”225 Not
surprisingly, our anti-slavery laws, including the international legal
conventions we have formulated, forbid and punish this sort of property
relationship.226 Thus, the United States and Europe—those states that
engaged in New World slavery—follow the generally accepted
definition of slavery laid down in 1926 by the League of Nations:
“Slavery is the status or condition of a person over whom any or all of
the powers attaching to the right of ownership are exercised.”227
But ownership is not the essence of slavery among the Hausa and
other Nigerien cultures.228 As discussed above, Nigeriens have no sui
generis social category that they label “slave”; rather, they have multiple
servile social categories that can be thought of as existing on a
spectrum.229 Some servile categories such as tam,230 look very much like
one human being exercising full ownership rights over another, while
others, such as horso among the Zarmas or the Bouzou among the
Tuareg and Hausa people, appear more like vague tribute relationships,
often with little day-to-day control exercised by the putative slave
masters.231 Those servile positions may include elements of property; for
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EUR. & CIV. L.F. 115 (2009). In spite of the nuanced view of slavery scholars, “[i]t is
nevertheless true that we in the United States tend to view slavery as a singular social
category, and that our conception is quite different from Nigeriens’ complex and variegated
view.” Kelley, supra note 31, at 1013 n.79 (citing Introduction, BEYOND SLAVERY,
EXPLORATIONS OF RACE, LABOR, AND CITIZENSHIP IN POSTEMANCIPATION SOCIETIES 6
(Fredrick Cooper, Thomas C. Hold & Rebecca J. Scott eds., 2000)).
225
Kelley, supra note 31, at 1023–24.
226
Id. at 1024.
227
Slavery Convention of 1926 art. 1(1), Sept. 25, 1926, 46 Stat. 2183, T.S. No. 778, 60
L.N.T.S. 253, available at http://www.ohchr.org/Documents/ProfessionalInterest/slavery.pdf.
This is not to say that there is complete unanimity in the West concerning what does
and does not constitute slavery. There are ongoing debates among scholars and activists about
whether practices such as human trafficking for sex or labor ought to be considered slavery.
See Jean Allain, The Definition of Slavery in International Law, 52 HOW. L.J. 239, 249
(2009); see also Rebecca J. Scott, Under Color of Law: Siliadin v France and the Dynamics of
Enslavement in Historical Perspective, in THE LEGAL UNDERSTANDING OF SLAVERY: FROM
THE HISTORICAL TO THE CONTEMPORARY 152, 154 (Jean Allain ed., 2012) (posing the
question of whether patterns of exploitation in contemporary society should be considered
“slavery” when no state extends formal recognition of the possibility of ownership of property
in human beings and commenting on courts’ reluctance to reach for the term “slavery” in
contemporary cases).
228
Kelley, supra note 31, at 1025.
229
Id. at 1013.
230
See supra notes 202–03 and accompanying text.
231
See Kelley, supra note 31, at 1013–15.
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example, a member of such a servile class might be under a culturally
enforceable obligation to pay grain tribute to the noble family with
which he is associated, but the “master” cannot be said to own the
“slave.”232
C. The Meaning of Wife
233
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Id. at 1023–25, 1032.
CCJ Judgment, supra note 17, ¶ 66; see Requête, supra note 39, ¶ 66 (arguing that
Hadijatou could not be a proper wife because she did not “have the right to refuse”).
234
Luigi M. Solivetti, Family, Marriage and Divorce in a Hausa Community: A
Sociological Model, 64 AFR.: J. OF THE INT’L AFR. INST. 252, 258 (1994).
235
Id.; see also Roberta Ann Dunbar, Islamic Values, the State, and “The Development of
Women”: The Case of Niger, in HAUSA WOMEN IN THE TWENTIETH CENTURY 69, 73
(Catherine Coles and Beverly Mack eds., 1991) (stating that forced marriages sometimes
occur among Hausas).
236
Solivetti, supra note 234, at 260.
237
Id.
238
Id.
239
Dunbar, supra note 235, at 74.
240
Kelley, supra note 31, at 1025.
232
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The Judgment of the ECOWAS Court, as well as the pleadings
associated with the Nigerien proceedings in the Mani case, emphasized
that Hausa custom requires that a woman consent to marriage.233 This
may be technically true, but in fact marriage in Hausa culture is often
arranged by elders and is a family matter, not something personal or
individual between a bride and groom.234 Hausa tradition gives a girl’s
father authority over his daughter’s first marriage and, since girls are
often pledged to husbands when they are in their early teens, a bride’s
consent to marriage, even if sought and granted, is often not particularly
meaningful.235
For Hausas, falling in love as an individual experience apart from
the preferences and needs of one’s family is considered antisocial and
selfish.236 Husbands and wives are not expected to display, or even
necessarily feel, romantic affection for one another.237 Wives are not
allowed to call their husbands by name, nor are they allowed to eat with
them.238 Wives owe obedience to their husbands and the latter may
inflict corporeal punishment on them if they disobey.239
Another essential characteristic of the social category “wife” in
Hausa culture is that it is based on an explicitly economic transaction.240
The groom must pay a bride price to the bride’s family, and all involved
regard the marriage as a sale in addition to recognizing its other social
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and emotional functions.241 Once he has paid the bride price, the groom
enjoys licit access to the woman’s body (and reproductive capacity) and
controls her mobility and virtually all aspects of her life.242 Later, if the
woman initiates a divorce where the man is not clearly at fault for
cruelty, impotence, or abandonment, he has the right to demand a refund
of the bride payment, particularly if she has not borne any children.243
D. Conflation of Wife and Slave in Niger
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ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY 24
(1982); Kopytoff & Miers, supra note 196, at 8–10.
242
Kopytoff & Miers, supra note 196, at 8–10. See ALI, supra note 218, at 49–53
(discussing the strong link between payment of a dowry and sexual legitimacy in Islamic
cultures and commenting that “[t]he obligation to pay dower correlates to sexual lawfulness in
marriage, just as the purchase of a slave conveys sexual lawfulness”). But see BARBARA M.
COOPER, MARRIAGE IN MARADI: GENDER AND CULTURE IN A HAUSA SOCIETY IN NIGER,
1900-1989, at 91–94 (1997) (arguing that bridewealth payments among the Hausa are part of
a complex web of reciprocal exchanges and should not be considered mere sales of the
brides).
243
See Solivetti, supra note 234, at 263.
244
See Kelley, supra note 31, at 1025; Kopytoff & Miers, supra note 196, at 8.
245
See CCJ Judgment, supra note 17, ¶¶ 66–69 (arguing that Hadijatou could not be a
“wife” because Naroua paid a purchase price but never a bride price).
246
COOPER, supra note 242, at 7, 10.
241
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Based on the foregoing discussions of the Hausa categories “slave”
and “wife,” it should be clear that they share many attributes. Whether a
man contracts for a marriage and hands over a bride price or purchases a
wahay, he pays for the right to control her and have access to her body
and reproductive capacity.244 But courts involved in the Mani
proceedings disagreed, finding implicitly or explicitly that the payment
of a bride price is fundamentally different from the outright purchase of
a wahay, and that the differing nature of these transactions helps
distinguish marriage from slavery.245
Barbara Cooper, who has studied marriage and gender relations
among the Hausa of Niger, however, argues that there is significant
fuzziness in the line that divides bride wealth payment from the outright
purchase of a wahay, and that the conceptual ambiguity between wife
and concubine or wife and slave was caused in part by Niger’s colonial
legacy.246
According to Cooper, when the French colonialists forced the end
of de jure slavery, noble Hausa women faced the prospect of having to
engage in onerous labor such as pounding grain, fetching well water, and
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carrying crops from the field.247 Families adapted, in part, by redefining
slave women as concubines and junior wives, women whose labor could
be controlled both by men and by senior aristocratic women.248 This
transition “depended upon a conceptual fuzziness around the distinction
between marriage and enslavement,”249 and the French colonizers, who
had created this social tumult with their nominally anti-slavery policies,
were happy to play along if it meant they could minimize the
destabilizing effects of their intervention.250
The end result was significant ambiguity in Hausa culture in the
distinction between wife and concubine, and concubine and slave.251
Indeed, according to Cooper, the Hausa language and the visual imagery
that Hausa people resort to when discussing marriage and divorce on the
one hand and enslavement and manumission on the other are almost
identical.252
This ambiguity and outright confusion is evident in contemporary
scholarly studies of slavery and marriage in Niger.253 For example,
Moustapha Kadi Oumani, author of a recent authoritative book on
slavery in Niger, repeatedly uses the terminology of “wife” and
“marriage” when referring to Nigerien women in the status of wahay or
cinquieme femme, even though he simultaneously condemns that status
as a form of contemporary slavery.254
Id. at 8.
See Barbara M. Cooper, Reflections on Slavery, Seclusion and Female Labor in the
Maradi Region of Niger in the Nineteenth and Twentieth Centuries, 35 J. OF AFR. HIST. 61,
70 (1994).
249
Id. at 70; see Claire C. Robertson & Martin A. Klein, Women’s Importance in African
Slave Systems, in WOMEN AND SLAVERY IN AFRICA, supra note 191, at 7, 18 (noting the
similarity between the statuses of slave and wife in African slave systems).
250
Cooper, supra note 248, at 73; see Kelley, supra note 31, at 1009–10 (citations
omitted) (arguing that the French colonizers were ambivalent toward slavery in their West
African colonies because they wanted to avoid undermining the elite slaveholders through
whom they ruled).
251
See Cooper, supra note 248, at 73; see also ALI, supra note 218, at 49–50 (describing
Islamic marriage concepts and noting that Islamic jurists employ overlapping linguistic,
conceptual, and legal parallels between marriage, slavery, and ownership); Robertson &
Klein, supra note 249, at 7, 18 (claiming that “wife” and “slave” share many traits in African
societies).
252
Cooper, supra note 248, at 70–71.
253
Cf. OUMANI, supra note 186, at 82–84.
254
See id. at 82–84, 146–47 (repeatedly employing the terms “marriage” and “wife” when
describing wahay in Niger).
247
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E. Interpreting the Mani Case in Light of Hausa Culture
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Kelley, supra note 31, at 1025 (citations omitted) (arguing that marriage in Niger is
considered an economic transaction, that in many African societies adoption is a property
transaction involving a child, and that some African patriarchs view the kinship group itself as
a form of property, aspects of which can, in certain circumstances, be exchanged or sold for
goods or money).
256
See Cooper, supra note 248, at 70, 73; see also Kelley, supra note 31, at 1009–10.
257
See supra Part III.A.
258
See CCJ Judgment, supra note 17, ¶ 67.
259
Id.; Kopytoff & Miers, supra note 196, at 8.
255
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Quite clearly, Hausa conceptions of “slave” and “wife” do not fit
neatly into the Western social categories represented by those terms.
Among traditional Nigerien societies, including the Hausa, no one—
including a servile person—is “owned,” but many humans, including
wives, are subjects of property claims and transactions.255 Partly for
historical reasons involving colonialism, Hausa culture has continued to
maintain a fuzzy dividing line between wife and slave or concubine.256 It
is not surprising, therefore, that there was a good deal of linguistic and
categorical confusion, and muddled analysis in the Mani case. Among
the various parties and their lawyers there was little disagreement about
the facts, but the different sides were interpreting those facts from
separate epistemic realms. Just as my Nigerien friend and I meant
different things when we used the same word for “medicine,”257 the
opposing sides in the Mani case meant different things when they used
the terms “slave” and “wife.”
Although describing the mindsets and motivations of the various
actors in the Mani case necessarily requires some speculation, based on
the foregoing discussion of Nigerien social categories, it is at least
arguable that Naroua genuinely believed that Hadijatou was not his
“slave,” even though he paid money for her, controlled most aspects of
her life, and exercised many property rights over her.258 He may have
genuinely believed that his relationship with Hadijatou—his wahay—
was not different in any important respect from his relationships with his
wives. After all, Naroua paid for his wives, too, controlled their
movements and activities, and had the right to have sex with them when
he pleased and discipline them when he considered it necessary.259
This would further explain why Naroua balked at a suggestion,
presented to him by a Nigerien government administrative official while
his court battle was going on, that he offer a bride price payment for
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261
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CCJ Judgment, supra note 17, ¶¶ 66–67.
Id. ¶ 66.
262
Id. ¶ 67.
263
See supra Part III.C (discussing legal pluralism and the fact that most people in rural
areas routinely ignore or circumvent Western-influenced state laws).
264
See Kelley, supra note 31, at 1019.
265
See supra notes 216–20 and accompanying text.
266
Requête, supra note 39, ¶¶ 38–40.
267
Id.
268
American or European readers might find strange the assertion that African lawyers
260
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Hadijatou after having issued her a certificate of liberation as a strategy
for formalizing their status as husband and wife.260 According to an
eyewitness, Naroua responded: “no! I don’t want to marry her since God
has already married us.”261 Another witness claimed that Naroua added
incredulously: “I am going to buy that woman and I am going to be
asked the dowry?”262 In his view, he had already engaged in a legitimate
financial transaction to gain control of her, and he saw no justice in
being asked to pay again for what he viewed as essentially the same
right.
The ECOWAS Court found that Naroua’s act of liberating
Hadijatou was clear evidence that he had considered her his slave, but
his act could as easily be explained as a simple way of dealing with yet
another of the many strange, foreign legal requirements that emanate
from time to time from Niger’s capital and penetrate into rural areas.263
For more than a century, Nigeriens have learned that if they make a
minor show of accommodating the legal requirements of the foreign
system of laws, they then can go back to ignoring the state and living
their lives according to their own traditions.264 Naroua’s general
assumption of rectitude very likely was bolstered by the fact that not
only customary practice among the Hausa, but Islam itself, endorsed his
relationship with Hadijatou.265
This categorical confusion also explains why the various judicial
actors who examined the matter found it difficult to come to a resolution
and employed slippery, oft-changing language when referring to
Hadijatou and Naroua. Sometimes Naroua was her husband, and
sometimes he was her “master.”266 She was his “wife,” his “wahay,” and
his “slave.”267 In the legal ping-pong revealed by the various lawsuits, it
is difficult to find a logical thread in the arguments over whether
Hadijatou was Naroua’s wife or his slave for the simple reason that from
within the episteme that both inhabited—but the higher courts, the
lawyers, and the NGO officials did not268—Hadijatou was neither his
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wife nor his slave: she was his wahay, a category that simply does not
exist in the Western episteme.
It is important to emphasize that nothing revealed in this discussion
of cultural dissonance indicates that the ECOWAS Court failed to do its
job or erred in any important respect.269 Indeed, from the perspective of
its Western episteme, the facts of the Mani case clearly showed that
Naroua exercised “powers attaching to the right of ownership” over
Hadijatou: he purchased her and for many years assumed complete
control over her labor, her body, and her reproductive capacity.270 What
this discussion of cultural dissonance does reveal, however, is that from
the perspective of Naroua’s episteme—from the perspective of
traditional, rural Nigerien society—such a transaction was perfectly
permissible, honorable, and not categorically different from entering into
a marriage contract and incorporating a wife into a household.271
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and judges possess scant knowledge of rural African customs and legal traditions. Part of the
lawyers’ and judges’ ignorance can be attributed to the pluralistic legal systems left behind by
departing colonial powers. See supra Part III.C. In Niger, the state legal system was based
entirely on France’s system, and those Nigeriens trained in law were drawn from the elite
évolué class that had adopted French language and culture. See Kelley, supra note 126, at
655–57. Even today, most lawyers and judges in sub-Saharan Africa, including Niger, receive
at least a portion of their training in Europe or the U.S., see TAMANAHA, supra note 146, at
127–28 (commenting on the tendency of lawyers from the developing world to seek advanced
legal training in Europe and the U.S.), and few receive any training in customary law, see
Chaibou, supra note 58, at 73 (arguing that most Nigerien Lawyers are trained in Western law
and know little or nothing about customary law). See also Abdulmumini A. Oba, The
Administration of Customary Law in a Post-Colonial Nigerian State, 37 CAMBRIAN L. REV.
95, 107, 111 (2006) (arguing that customary law is not taught in Nigerian law schools and that
most lawyers know little about it); Samuel O. Manteaw, Legal Education in Africa: What
Type of Lawyer Does Africa Need?, 39 MCGEORGE L. REV. 903, 919 (2008) (arguing that
most Nigerian law schools adopted the colonial legal education curriculum wholesale). I have
found, to my surprise, that I often know more about the customary law of rural Niger than do
Nigerien lawyers and judges I meet in the country’s capital city. Given
African
lawyers’
tendencies to focus on and be knowledgeable about European-style law rather than African
customary law, it is reasonable to assume that the judges on the ECOWAS Court were
unschooled in the nuances of Nigerien custom. At present, only two of the ECOWAS Court
judges’ biographies are available on the Court’s website: Justice Nana Awa Daboya of Togo
(who participated on the panel that decided the Mani case) and Justice Anthony A. Benin of
Ghana. See The Bureau of the Community Court of Justice, THE COMMUNITY COURT OF
JUSTICE, ECOWAS, http://www.courtecowas.org/site2012/index.php?option=com_content
&view=article&id=28&Itemid=6 (last visited Jan. 11, 2014). Each has received extensive
legal training in Europe, the United States, or both. Id.
269
But see Allain, supra note 4, at 315 (critiquing the ECOWAS Court’s judgment for
conflating international criminal law and international human rights standards).
270
Slavery Convention of 1926, supra note 227; ANTI-SLAVERY, supra note 6, at 1.
271
Kopytoff & Miers, supra note 196, at 8.
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V. CONCLUSION
273
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See supra note 268 and accompanying text.
See ANTI-SLAVERY, supra note 6, at 3–4 (referring to NGO workers’ raising
awareness in rural Niger about criminal penalties for slavery).
274
See id. (explaining that the Western social category “slave” was novel to rural
Nigeriens).
275
See id.; see also CCJ Judgment, supra note 17, ¶¶ 67, 76, 80 (explaining the
ECOWAS Court’s agreement with Hadijatou’s legal argument that wahay was the equivalent
of “slave”).
272
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One goal of this paper was to engage in skilled cultural navigation
on behalf of readers: to reveal differing linguistic, epistemological, and
legal conceptions that roiled under the surface of the Mani case but were
never acknowledged in the written record. Taken as a whole, the
pleadings and judgments, newspaper articles, and human rights NGO
accounts that describe the case assert (or assume) that slavery is a
universally understood and condemned institution and that the Mani case
simply applied that universal law to a corner of the world where, due to
isolation and lack of resources, people like Naroua were able to carry on
their illegal (and immoral) activities.
This paper offers a more complicated, nuanced narrative about the
Mani case. People living in one interpretive community—that of rural
Niger—did not think of Hadijatou as “slave,” because the category
“slave” as understood in the West and in international human rights
laws, did not exist within their episteme. Hadijatou was wahay, and
according to the epistemic beliefs of people in rural Niger, Naroua had
the right to control her labor, her body, and her reproductive capacity,
much as he controlled those aspects of his wives’ lives.
Hadijatou spent most of her life as wahay, but she resisted her
violent and degrading treatment from the start. At the same time she was
resisting, Western and Western-leaning legal professionals and NGO
experts272 were busy introducing and disseminating a new social
construct273: slavery—meaning one human being exercising ownership
over another.274 Those human rights organizations were also promoting
the idea that longstanding and generally accepted servile social
categories in Niger, including wahay, were the equivalents of “slaves,”
and would no longer be tolerated.275 Hadijatou learned from the human
rights organizations about the new social category “slave,” and new laws
condemning slavery, and she seized the opportunity to vindicate her
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277
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INTERIGHTS, supra note 7.
TAMANAHA, supra note 146, at 115 (claiming that indigenous elites in poor countries
are often the only ones conversant in transplanted Western law).
278
See Kelley, supra note 31, at 1030–31.
279
See WATSON, supra note 139, at 96–99 and accompanying text.
280
See supra Part IV.
281
See Legrand, supra note 32, at 117–18, 120.
282
See INTERIGHTS, supra note 7 (reporting that approximately thirty other Nigerien
wahay have contacted human rights NGOs and sought protection after hearing of the Mani
case).
276
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newly discovered rights.276 She took advantage of the epistemological
and legal shift to gain freedom and self-determination.
This more complicated narrative of the Mani case highlights the
complexity that arises when two different epistemes, two different ways
of knowing and categorizing the world, are brought into contact with one
another. In most such cases of sudden legal and epistemological
transition, elites use their wealth and social connections to take
advantage of the tumult to consolidate their power.277 Where, for
example, African countries, aided by their Western patrons, rapidly
introduce new conceptions of land rights, typically quashing traditional
usufructuary rights and imposing a system of freehold ownership, elites
use their privileged positions to grab land.278 The Mani case represents a
rare example where the less powerful actor, Hadijatou, succeeded in
taking advantage of the legal and epistemological shift to gain power,
gain rights, and ultimately to gain freedom.
A second aim of this paper was to point out the ways in which the
Mani case contributes to comparative law’s ongoing legal transplant
debate. Stated simply, the linguistic, cultural, and epistemological
confusion that roiled under the surface of the Mani case sheds grave
doubt on Watson’s thesis concerning the free and easy transferability of
law between dissimilar peoples and nations.279 Here, transplanting the
Western legal definition of “slave” to rural Niger caused confusion
because, while there was overlap between that Western social category
and the Nigerien servile status wahay, they were not the same.280
At the same time, the Mani case should place in doubt some of
Legrand’s more extreme arguments concerning the impossibility of legal
transplants.281 There is at least some evidence that other wahay have
followed the path blazed by Hadijatou and have brought their plights to
the attention of human rights organizations.282 Although it is too early to
tell, Hadijatou and the Mani case may have been on the cutting edge of a
discursive shift in the rural Nigerien episteme, a shift that may reveal to
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Niger’s rural people that the servile status called wahay or cinquieme
femme is indeed the equivalent of slave, not the equivalent of wife, and
therefore is legally and morally unacceptable. To borrow the
terminology favored by the comparative law scholar Gunther Teubner,
the transplanted law may be acting as a “legal irritant” that is being
adapted and applied by certain elements within Nigerien society and is
creating an evolution in their world view.283
I close with the hope that this paper will not be read as an
endorsement of unbounded cultural relativism. It does not argue that
slavery and the predation that accompanies it are acceptable in epistemes
that view it as normal and just. Rather, it aims to offer a concrete
illustration of the fact that fundamental differences exist across cultures
and legal systems, and that those differences are worthy of careful study.
It also argues that legal transplants between societies with differing
historical and cultural moorings are extremely complicated, sometimes
in ways that are difficult for outsiders to perceive. Those who would
undertake such transplants should realize and acknowledge that they are
not simply diffusing universal legal principles but changing the rules of
the game for the recipient countries and their citizens.
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See Teubner, supra note 160, at 12.
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283