“WE MAKE DO AND KEEP GOING!” INVENTIVE PRACTICES AND ORDERED INFORMALITY IN THE FUNCTIONING OF THE DISTRICT COURTS IN NIAMEY AND ZINDER (NIGER) Oumarou Hamani Introduction: How to Manage a Public Service in Chronic Need of Resources? If you insist that you need this and that to work, they will end up saying that you do not do your work! This statement by a Vice President of the Higher District Court of Nia- mey, Niger’s most important court in terms of the volume of cases processed, is indicative of the functioning of its jurisdiction and of the judicial system in general. It reflects the scale of dysfunction within the courts. Nonetheless, the courts continue to more or less meet the needs of service users. How do they manage to do this? Taking the concept of ‘practical inventiveness’ (débrouillardise) as its starting point, this chapter explores the mechanisms by which these services function. These inven- tive practices are often overlooked in the research carried out on Afri- can public administrative systems. An ethnography of the operation of two district courts in Niger will not only provide insights into the state’s everyday functioning ‘from below’ but will also demonstrate that practi- cal norms and ordered informality (see Olivier de Sardan in this volume) are not always negative and can contribute, in some cases, to making the state work.1 To ensure the production and delivery of public services in a context of state weakness, civil servants rely on a wide range of practices which are, themselves, based on equally diverse logics. They face organizational constraints in the decisions they make: they must deal with problems, and build strategic relations with local political authorities whose support they depend on for the completion of certain tasks. This constant quest 1 The term “ordered informality” is inspired by Evans-Pritchards (1940, repr. 1987: 296) analysis of the working of segmentary societies. See also Olivier de Sardan (in this volume). Special thanks to Susan Cox for translation into English. © Oumarou Hamani, 2014 | doi: 10.1163/9789004264960_007 This is an open access chapter distributed under the terms of the CC BY-NC 4.0 license.Oumarou Hamani - 9789004264960 Downloaded from Brill.com09/27/2021 01:45:34AM via free access 146 oumarou hamani for resources to facilitate the running of the courts shapes the magistrates’ image of the state. These practices are often out of step with what is set forth in the offi- cial documents; however, they sometimes produce unexpectedly positive results which are currently of interest to both the development commu- nity and social science researchers (Jütting et al. 2007). If these practices help to strengthen the production and delivery of public services by the state, particularly in local contexts, the potential offered by the analysis of their emergence and embedding in public administration practices is considerable. In the context of the judicial system, such an analysis raises the question of the ‘independence’ of the judicial system and the capacity of the state to control a service that relies—at least in part—on non-state resources in order to function. Addressing the concept of practical inventiveness is to bring to light certain practices—sometimes hovering on the limits of legality—which facilitate the functioning of the judicial system on a daily basis. It also means re-examining the level of commitment among magistrates in rela- tion to the state they serve (Lentz in this volume). Contrary to the claims of Das and Poole (2004), this is not limited to the “margins of the state”. This consideration concerns the very heart of the judicial structure; it endeavours to give substance to the concept of ‘practical norms’ as put forward by Olivier de Sardan (in this volume). There is a significant dis- crepancy between the inventive practices referred to here and the official functioning and the formulated policies of the state. However, far from impeding the operations of state justice, much like the oil that lubricates an engine, these practices sometimes act as a catalyst for functional- ity. ‘Practical inventiveness’ adds to the notion of the plurality of norms already recognized as existing in public administrations. In an analysis of this plurality of norms in the implementation of public policy, Chauveau, Le Pape and Olivier de Sardan (2001: 150) maintain that ‘unofficial’ norms develop as a result of an incapacity on the part of the state to formulate rules and regulations and ensure their acceptance (see also Olivier de Sar- dan 2009; Titeca and De Herdt 2010). I will argue here that the emergence of unofficial rules could also arise as a result of the state’s incapacity to provide sufficient resources to its administrations. In the sphere of justice, unofficial practices raise a very specific ques- tion: to what extent does the emergence of informal practices affect the independence of the judicial system? The literature on the subject of judicial independence (in francophone Africa) focuses on political inter- ference in the treatment of court cases (Badara Fall 2003; Du Bois de Oumarou Hamani - 9789004264960 Downloaded from Brill.com09/27/2021 01:45:34AM via free access inventive practices in the niger judiciary 147 Gaudusson 1990). This perspective, however, is limited, failing as it does to take into account a number of covert forms of dependence in the justice system, involving manifestations of ‘powers’ other than political power. In the everyday functioning of the judicial system, indeed, magistrates have dealings with a range of institutional non-state actors, with whom they must negotiate in order to obtain some of the resources needed for the system to function. In the context of the courts, these negotiations also contribute to the informal privatization of the judicial service in the form of corruption (Blundo and Olivier de Sardan 2007), predation (Tre- fon 2009), “every-man-for-himselfism” and “cronyism” (Olivier de Sardan 2004). These negotiations are a double-edged sword; on the one hand, they present fertile ground for the emergence of corruption or clientelism (Titeca and De Herdt 2010). On the other hand, they may contribute to the operation of public services. In this text, I am particularly interested in the ways in which magistrates adjust their professional practice according to the scarcity of resources. In other words, the purpose of this chapter is to analyze the interac- tions between magistrates and members of the public from a perspective of “palliative delivery” (see Olivier de Sardan in this volume), within the bureaucratic mode of functioning. This perspective is complementary to the analysis of Tidjani Alou (2001: 64) who, with reference to the insuf- ficient budgets allocated to the judicial system in Niger, remarks that “the judicial administrations find it impossible to function normally. This has an impact on the execution of the public judicial service, a process that is often compromised or diverted from its primary objectives . .” (for similar perspectives see Blundo 2003b and Bierschenk 2008).2 While I am interested in the negotiations between state officials and their environment and the ‘transactions’ surrounding access to the public judicial service—practices that are situated in the context of the wider debate about the links between the state and the non-state sphere (Lund 2007; Baker 2010)—this paper focuses on the mechanisms by which the resources mobilized from outside the system by state officials are rein- vested in the judicial system and the state. I am also interested in how 2 This approach is also inspired by Gobatto and Lafaye (2005), who, in their work on the healthcare sector, carried out an analysis of the arrangements, adjustments and nego- tiations employed by healthcare practitioners to incorporate or circumvent the constraints they face in the care given to pregnant women, particularly in the context of preventing mother-to-child transmission of HIV (PMTCT). In this case, the constraints were analyzed as the drivers of new practices rather than insurmountable obstacles. Oumarou Hamani - 9789004264960 Downloaded from Brill.com09/27/2021 01:45:34AM via free access 148 oumarou hamani magistrates view and/or legitimize these negotiations. How does the con- cept of ‘practical inventiveness’ influence the magistrates’ perception of the state? Based on these questions, the analysis is structured in four parts. The first discusses the background and context of the study. The second high- lights the weakness of the public judicial service in Niger. The third deals with the manifestations of inventive practices in the observed courts, and the fourth is dedicated to an analysis of the discourse of the judges on their relationship with the state.3 The Organization of the Judicial System: the Courts of Niamey and Zinder The judicial system in Niger is based on the French model. In order of importance (from bottom to top), there are the tribunaux d’instance (Mag- istrate Courts) at the departmental level, the tribunaux de grande instance (Higher District Courts) whose jurisdiction is regional in scope, two cours d’appel (Courts of Appeal), each with a jurisdiction of four District Courts and 15 Magistrate Courts. At the top of the judicial hierarchy, there are the cour de Cassation (Courts of Cassation), the cour d’Etat (the national courts), the cour des comptes (Courts of Audit), and one cour constitution- nelle (Constitutional Court). The District Courts of Zinder and Niamey, the subject of this study, are connected to the Courts of Appeal of Zinder and Niamey respectively. To quote Raynal (1990: 7), Niger’s judicial sys- tem is characterized by a “unity of judicial and administrative measures, a unity of modern and customary law jurisdictions, a unity of civil and com- mercial jurisdictions”. Once trained, the same judge may cover all special- izations and assume a variety of judicial and administrative functions.