Marriage by Force?

Contestation over Consent and Coercion in Africa

Annie Bunting, Benjamin N. Lawrance, Richard L. Roberts

• Publisher: Ohio University Press
• Year: 2016
• eBook ISBN: 9780821445495
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

With forced marriage, as with so many human rights issues, the sensationalized hides the mundane, and oversimplified popular discourses miss the range of experiences. In sub-Saharan Africa, the relationship between coercion and consent in marriage is a complex one that has changed over time and place, rendering impossible any single interpretation or explanation.

The legal experts, anthropologists, historians, and development workers contributing to Marriage by Force? focus on the role that marriage plays in the mobilization of labor, the accumulation of wealth, and domination versus dependency. They also address the crucial slippage between marriages and other forms of gendered violence, bondage, slavery, and servile status.

Only by examining variations in practices from a multitude of perspectives can we properly contextualize the problem and its consequences. And while early and forced marriages have been on the human rights agenda for decades, there is today an unprecedented level of international attention to the issue, thus making the coherent, multifaceted approach of Marriage by Force? even more necessary.

PART ONE

Colonial Struggles

CHAPTER ONE

Constrained Consent

Women, Marriage, and Household Instability in Colonial French West Africa, 1905–60

RICHARD L. ROBERTS

THE 2008 decision of the Appeals Chamber of the Special Court for Sierra Leone in its judgment of the AFRC case catapulted issues of forced marriage to the forefront of recent human rights debates. The court ruled that forced marriage involved specific elements of psychological and moral suffering and not merely rape, sexual slavery, forced pregnancy, and forced domestic labor. The combined nature of these acts under wartime conditions thus separated them from the crimes of sexual violence and sexual slavery.¹ But debates about forced marriage, arranged marriage, and consent in marriage have a longer history and are related to the complex interactions between African societies and colonial societies in Africa. This chapter explores how the complex and intertwined issues of consent in marriage, patriarchal regimes, property rights in people, and mobilization of domestic labor converged in the socially complex and changing worlds of colonial French West Africa.

African societies and their customary practices were never static. They were dynamic entities that shifted in relationship to broad changes in culture, economy, and polity. Nor was French colonial native policy coherent or stable; it changed over time in response to shifting metropolitan sensibilities about African social practices, periodic colonial crises that shot bolts of reform up and down the administrative hierarchy, and changes that Africans initiated on the ground. Above all, French colonial native policy was shaped by two deep policies: the first involved the legal category of the protectorate, in which the French colonial power agreed to let African societies retain internal sovereignty over their customs; the second was the French commitment to intervene in African practices whenever they contravened or seemed to contravene the French sense of “civilization.”² These two policies were often in conflict, as French intervention to end practices contrary to civilization often resulted in deep transformations in African societies. The classic example of this is French efforts to abolish African forms of slavery, which entailed many halfhearted attempts before the slaves themselves began to leave their masters and thus forced the French to institute the policy.³

African marriage practices also posed considerable challenges to these two sides of French colonial policy. Colonial administrators harbored deeply conflicting opinions regarding African women’s consent in marriage. Some likened bridewealth payments to “disguised purchases” of people and thus believed they were contrary to French antislavery policies, whereas others saw bridewealth as the foundation of African family stability and the unquestioned authority of the male household head. This dispute flared brightly for a brief moment in the period immediately following the establishment of newly created native courts in French West Africa in 1905, when waves of disputes regarding marriage, divorce, bridewealth, and child custody filled the courts.⁴ These controversies flared again in the mid-1930s following the scandal involving the disguised marriages of girls and women pawned by their impoverished guardians during the Depression.⁵ This colonial scandal gained traction precisely because it coincided with the rise of the Popular Front and the Popular Front’s willingness to challenge established practices in the colonies. The pawning scandal prompted bursts of activity through the colonial administration and resulted in a surge of new research on African marital customs, especially the place of women’s consent in marriage. It also resulted in the Mandel Decree of 1939, which mandated the minimum age of marriage for girls at fourteen and boys at sixteen and required the consent of the parties to be married.⁶ The war in Europe stopped further intervention into African marriages and toppled the Popular Front. It was not until the postwar effort at promoting colonial welfare and development that the Jacquinot Decree of 1951 gave women over twenty-one the freedom to marry without parental consent.⁷ Of course, by that age most African women were already married.

At the intersection of consent in marriage and the often murky separation between arranged and forced marriages lies the problem of bridewealth. Bridewealth, especially in first marriages, significantly constrained girls’ and women’s capacity to consent to marriage or to imagine alternatives to marriages arranged by their kin.⁸ The sections that follow explore colonial perspectives on marriage; child custody disputes brought before the native courts of the French Soudan in the early twentieth century that illuminate the linkage between rights in persons, bridewealth, and marriage; and the linked issues of household instability and women’s consent in second and subsequent marriages.

AFRICAN MARRIAGES, BRIDEWEALTH, AND CONSENT

In much of French West Africa (and throughout the patrilineal world of sub-Saharan Africa), marriage involved strategic investments between kinship groups. These investments revolved around building and maintaining webs of kinship and controlling labor and descendants. Camilla Toulmin, an anthropologist who worked among the Bambara, describes marriage primarily in material terms as “a particularly long-term investment.” Although the wife provides immediate labor and services to help compensate for the “heavy marriage costs, many of the benefits will accrue over the following 30 years or more.” Toulmin further notes that because the consequences of marriage are likely to be with the family for decades, care in making marriage choices is not left to the potential spouses. The preferred spouses come from groups already linked by existing marriage ties. In this way, “the household head hopes to ensure that marriages endure and are free of conflict.” “Men and women,” Toulmin notes, “may not choose their partners, but love and respect frequently grow between them.”⁹

Toulmin’s description of Bambara marriage reflects the classical structural-functionalist perspective on African marriages offered by A. R. Radcliffe-Brown in 1950. “The African does not think of marriage as a union based on romantic love although beauty as well as character and health are sought in the choice of a wife,” he observed. “The strong affection that normally exists after some years of successful marriage is the product of the marriage itself conceived of as a process, resulting from living together and co-operating in many activities and particularly in the rearing of children.” Congruent with the evolutionary thinking then prevalent in anthropology, Radcliffe-Brown likened African marriage to early English marriage, where the “marriage is an alliance between two bodies of kin based on their common interest in the marriage itself and its continuance, and in the offspring of the union, who will be, of course, kin of both the two kin-groups.” Crucial to this alliance “in early England and in a great number of societies in ancient and modern times in all parts of the world” were the marriage payments given by the bridegroom or his kin to the father or guardian of the bride.¹⁰ These payments constituted the making of a “legal” marriage, especially when the state was not (or not yet) an interested party in the marriage and in registering it.

Radcliffe-Brown wanted his reader to understand the difference between bridewealth and purchase. “Some people,” he said, “regard payments of this kind as being a ‘purchase’ of a wife in the sense in which in England to-day a man may purchase a house or a motor-car. . . . The idea that an African buys a wife in the way that an English farmer buys cattle is the result of ignorance, which may once have been excusable, but is so no longer, or of blind prejudice, which is never excusable in those responsible for governing an African people.” Instead, Radcliffe-Brown argued, African marriages involved a whole series of “prestations” (payments, gifts, or services). Though most wealth flowed from the husband and his kin to the wife’s kin, some flowed in the opposite direction, especially when guardians (and sometimes mothers) provided wedding presents (as a form of token dowry) to their daughters.¹¹

According to Radcliffe-Brown, African patrilineal and virilocal marriages consisted of three core characteristics. First was the modification or partial rupture of the relations between the bride and her immediate kin, particularly when she left her family to live with her husband and his family. Second was “legal marriage,” by which Radcliffe-Brown meant the transfer of marriage payments that gave the husband and his kin certain rights in relationship to his wife and the children she would bear. This was the crucial part of the marriage transaction: “It is the objective instrument of the ‘legal’ transaction of the transfer of rights.” What was being transacted varied from society to society, but it almost always consisted of rights to the labor of the wife for the well-being of the household, including domestic labor, sexual services, and labor in the household’s fields; it also consisted of rights to the children born during the marriage. “Once the payment, or some specific portion of it, has been made the bride’s family have no right to fetch their daughter back, and in most tribes, if the union is broken by divorce at the instance of the husband, the payment has to be returned and the woman’s family recover the rights they have surrendered.” The third characteristic was that the marriage was not simply a union between a man and a woman but also an alliance between two bodies of kin.¹²

To think of marriage as a contract between two bodies of kin and as a transaction involving some rights in the person of the bride helps us understand how little space there was for brides to consent. “In Africa,” Radcliffe-Brown wrote, “an unmarried woman is in a position of dependence. She lives under the control and authority of her kin and it is they who afford her protection. . . . At marriage, she passes to a greater or less extent . . . under the control of her husband (and his kin), and it is he (and they) who undertake to afford her protection.”¹³ Thus, marriage shifted a woman’s dependence, but it did not fundamentally alter it.¹⁴

Bridewealth should also be understood as a bond holding the marriage together. The difficulty of returning the bridewealth should the marriage fail forged the bond. The difficulty stemmed from the uses to which the guardian of the bride put the bridewealth. Only rarely was the bridewealth accumulated and retained by the guardian. Instead, it was more or less immediately redirected and used as bridewealth for the family’s sons. As part of his strategy for maintaining the household, the household head was obliged to provide wives for his sons.¹⁵ Thus, the difficulty of returning bridewealth acted as a significant barrier to divorce, although, as we shall examine in the final section, unhappy wives could seek out lovers to help return bridewealth.

WOMEN’S CONDITIONS AND CRISES IN MARRIAGE

Concern about African women’s conditions and marriage more generally within French West Africa was rooted in the implementation of the colon...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Foreword
• Acknowledgments
• Introduction: Something Old, Something New? Conceptualizing Forced Marriage in Africa
• Part One: Colonial Struggles
• Part Two: Postindependence Transformations
• Part Three: Contemporary Perspectives
• Afterword: Historicizing Social Justice and the Longue Durée of Forced Marriage
• About the Contributors
• Index