The Influence of European Colonialism on Zande Customary

Traditionally, the authOlity of the chief The Influence of European was never questioned in matters of law (Evans- Colonialism on Zande Customary Plitchard 1962:213). The chiefs held courts in which they exercised a great deal of power, and Law their judgements served as detenents to future injustices. Numerous accounts list death or mutilation among the traditional punishments rendered upon the guilty pmty (Reining 1966: IS). Laws are the moral foundations of Known among the Azande for his particular social order. They are established to govern the harshness was the chief Gbudwe. Evans- way in which individuals act within a society in Plitchard, dllling his time spent in Zandeland, an attempt to impose stability, conformity and noted many accounts of Gbudwe's character and acquiescence. Because a specific set of laws the convictions by which he IUled. Evans- functions only within the bound system in Plitchard, in his retelling of such accounts, which it is established, the effectiveness of the described Gbudwe as "stem" and "morose," legal system is contingent upon the general taking harsh action against "disloyal people, acceptance of those rules by that pmticular sorcerers, witches, adulterers, and those who society. Law, like any other culturally flouted custom or good manners"(Evans- constructed institution. must therefore be Pritchard 1962:217). understood in reference to the society in which Such accounts of brutality are not it is developed. uncommon. Schweinfurth relates that "for the If a common understanding among all purpose of exhibiting their power over life and community members is fundamental to the death [the chiefs] will occasionally feign fits of successful implementation of the legal code. passion. and that. singling out a victim from the then an interesting dilemma arises when crowd, they will throw a rope about his neck, and examining the application of European law in with their own hands cut his throat" (Evans- tribal societies. If colonial powers were to Pritchard 1962:224). An ltalian hunter and trader, impose European law on tribal society what Carlo Piaggia. who visited with King Tombo effect, if any, would it have on indigenous from 1863 to 1865. noted that to incur fear in his people? Without conmmnity solidarity and an people King Tombo would take pmt in a blood understanding of the legal code, it is unlikely frenzy where a victim would be encircled and that any individual would embrace such laws. murdered (Evans-Plitchard 1962:224). Further Such is the case with the Azande. Here the accounts of this blUtality come from descliptions principles of different systems of law created of Bakangai, a third generation descendant of conflict. when one system of law was King Tombo. Bakangai believed that "fear. not supelimposed on another. The result was a love, makes subjects obedient and faithful" and as system of "legal pluralism" where the chiefs. a result, "he was severe and even cruel, and death who, prior to colonization. presided over all was the punishment he inflicted for the least legal procedures, were forced to simultaneously fault" (Evans-Pritchard 1962:224). The abide by their customary laws as well as employ IUthlessness by which the Zande kings governed the legal sanctions of the colonial powers did not, however. endure as a means of control. (Reyntjens 1992: III). In many cases. the legal Evans-Pritchard. in his account Zande power of the chief was revoked by the colonial kings and princcs. notes that although the power and transfened to European accounts of Zande brutality are well known, he administrators who had little understanding of himself did not witness any such acts (Evans- jlllisprudence within Azande culture (Reining Pritchard 1962:22-+l. Not only is it the case that I966:xvii). If the customary law on which the "colonial power structure made the object of Azande based their daily practices was distorted anthropological study accessible and safe" (Asad by European intervention, then there could be 1975: 17), it also changed the very nature of little faith in its prescribed justice. As a result. Zande justice. It is not unreasonable then, to Azande chiefs lost much of their po\\·er. the deduce that brutal practices were phased out with customary laws of the Azande were the colonial expansion of European powers during compromised and the Azande people turned to the early part of the twentieth century. Since vengeance magic as a means of settling legal "Functional Anthropology was born after the disputes. advent of European colonialism ... and occuned

II III \1 \' ,I II 211112-21111.1 CoP"',.c:l1l' 2""\ 11111'\1:'111, L'\\"(l.lournalof.\nthrop"ll)gl" within the context of. .. an imperial structure of law" (Hunt and Wickham 1994:43). While it may power already established rather than one in very well be that the power of the colonial process" (Asad 1975:115), Zande customs of government was vested in law, how venerable brutality would have already been were colonial laws among the Zande people? The "subordinated ... to the authority of European laws of colonial administration were foreign and administrators" (Asad 1975: 108). Therefore, complex. They were grounded in years of any observations of Zande practices were European history, and would not simply apply to tainted by European colonialism. With the the customs and traditions of the Azande. infiltration of the British into the Anglo- Furthermore, foreign laws must have seemed Egyptian Sudan, the Azande were placed under repressive, as they favoured European interests British military administration and the prestige and morals, and did not include or relate to the of the chiefs as lawgivers was further values of the Azande people. diminished (Baxter 1953:23). A selies of judgements made by British Subsequent to British military colonial officers in Aflica illustrates the partiality occupation, the colonial administration sought of the courts to British law. In one such judgment to utilize the Azande chiefs to govern the tribal the court proclaimed that "the only standard of people. It was often the case that the British justice and morality which a British court in Native Commissioner would require the support Africa can apply is its own British standard" of the chief to administer law over the tIibal (Hooker 1975:133). Similarly, the French peoples (Gluckman 1956: 147). The tribal colonial government believed that customary law leaders were not, however, permitted to govern should be restIicted so that it did not exist using customary law, but were forced to try "contrary to the principles of French civilization" criminal offences under colonial law (Gluckman (Hooker 1975:223). 1956: 148). Azande customary law stood in In the case of the Belgian Congo, the direct conflict with the tenets of European law. colonial administration was not entirely opposed The colonial government would not allow the to customary law, declaring "indigenous chiefs continued practice of customary law in its raw shall exercise their authority in conformity with form and consequently brutal punishments usage and custom, provided these are not contrary issued to commoners were forbidden (Reining to public order and the laws of the state. 1966: 17). The chiefs were restricted in their However, the chiefs shall be placed under the powers of adjudication and punishment, and direction and control of the district without murder and mutilation as deterrents, the commissioners"(Reyntjens 1992:113). In effect, Zande chief began to lose his hold over his the chiefs were intended to act merely as people. convenient vehicles for European infiltration. The colonial powers occupied The influence of the colonial Zandeland, but what gave them authority over administration on customary Zande law can be the Azande? Evans-Pritchard, in an outline of seen in the colonial laws pertaining to theft. Zande culture, states "the Azande are so used to Traditionally, the punishment for theft was either authority that they are docile; that it is unusually mutilation or death. Following the easy for Europeans to establish contact with implementation of European law, mutilation and them ... [The Azande offer] little opposition to death were no longer considered appropriate foreign administration and [display] little scorn punishments; restitution, or monetary for foreigners" (Evans-Pritchard 1937: 13). compensation was required as an alternative However, Turner points out that colonial (Vanderlinden 1970:346). Further evidence of anthropologists were "'apologists of colonial involvement in customary law can be colonialism' and subtle agents of colonial seen in cases involving physical injuries. supremacy" (Asad 1975:15), so the conclusion Customary law dictated that the chief was to that the Azande would willingly submit to determine the extent of a victim' s injuries and colonial rule is suspect. How then, did the equal suffering was to be administered to the colonial administration exert power over the guilty party. Under colonial law, the chief was Azande? still required to assess the condition of the victim, According to Foucault, "law ... was the but compensation came in the form of a monetary monarchic system' s mode of manifestation and settlement (Vanderlinden 1970:344). The the form of its acceptability. In Western influence of the colonial administration served to societies since the Middle Ages, the exercise of remove reciprocal action as a means of justice, power has always been formulated in terms of replacing it with a punishment that was not

TOTI·:i\1 \"01 II ~1I11~-:WII.) CoplTight © ~IJlI.)TOTI·:H The U\X'() Journal of\nthropo!o!-,,,' relevant to Azande society. It was a legal concubinage altered the rights and responsibilities sanction, the moral foundations of which must of women (Reyntjens 1992: 122), and invested have been beyond traditional Azande women with "privileges which they did not experience and jurisprudence and, therefore. previously enjoy. Azande unanimously declare one which the Azande could not consider that this reform has led to serious disruption of acceptable. It should be noted that consent or family life" (Evans-Pritchard 1937: 16). Although acceptance always involves contestation and this may not have been unanimous. European conflict; acceptance, or lack thereof, would not laws meant very little to the Azande, as they did have been homogenous among the Azande, but not reflect the dynamic social framework of their may represent popular opinion as presented by society, but instead represented laws "given to the ethnographic literature. them by the whites" (Reyntjens 1992: 119). According to Durkheim,"moral ideas Inscribing for the record, cases and are the soul (l'clIne) of the law" (Cotten-ell verdicts normally have the effect of freezing in 1999:5). It is important to recognise, however, time the customs of a people, but for the Azande that morality is manifested differently between the effect of written law was devastating. Rather societies. Consideration must therefore be than documenting and preserving local custom, given to whether laws based on an uncertain the written laws served to destroy oral tradition. moral order conmland power and adherence. Bourdieu refers to the passing of information "Durkheim sees law as the most important through text as a "codification" of culture. and expression of morality as a social fact" Calhoun notes that the introduction of codified. or (Cotten-ell 1999:56); it is an objective construct textual means. "introduced a new institutional "existing outside the individual consciousness" dimension-the role of authOlized arbiters of (Durkheim 1938:2). Therefore, the imposition cOlTectness" (Calhoun 1995: 150). Furthermore. of legal rules that oppose the popular moral Bourdieu points out an sense can only contribute to an eventual social breakdown, and regimes which impose such opposition between official legal rules are destined to collapse (CottelTell knowledge ... and all kinds of 1999:57). In excluding Zande custom from law unofficial or secret, even the colonial administration alienated the masses, clandestine. knowledge and and isolated the individual from the judicial practices which, though they are institution and ultimately the colonial the product of the same government itself. Ultimately, the Azande generative schemes, obey a could not possibly accept colonial laws, and the different logic ... [T]he government, in basing its rule on laws which transmission of 'official' were founded on principles alien to the information through indigenous population, undenninedjts hold on authOlitative channels has in the community and its position of power. fact been destructive to the The colonial obsession with written transmission of information law further separated the community from its through direct interpersonal customary laws. The colonial administration relationships. (Calhoun forced the tribal leaders to compile customary 1995: 150-151) law. Case-law and precedence became the detenninants of judgement with the resultant Essentially, text has the effect of weakening the loss of flexibility in the customary judicial exchange of customary knowledge and, system (Reyntjens 1992: 119). Fmthermore, this consequently, the ability of such customs to adapt compilation of laws made it easier to interject and change. With limitations on their capacity to colonial law into the Azande legal system and change, the customs of the Azande could not consequently European laws began to replace incorporate European rules and, consequently. those of custom. The rights granted to women the only alternative was to rely on previously through European colonial law are an ingrained models of behaviour. illustrative example. According to Zande With the control over legal proceedings custom, women could be mamed against their in the hands of the colonial administration, the will and "were frequently paid in compensation decline in the authority of tribal chiefs set up an for murder by witchcraft or for adultery" interesting relationship between the chiefs and the (Evans-Pritchard 1937: 16). The law of Azande. The Azande chiefs were in fact marriage, law of adultery, and law of descendants of a ruling caste. which took power

TOTI·:,\j ,oj II 211112-2111) Coprrighl © 21111,) '1'( HI .:,\1:The' U\\'() .Iour1l:l1of .\nthropojogr over the Azande state through military Avungara royal house is further explained conquest. This super-plivileged caste, known through Gramsci' s concept of hegemony: as the Avungara, took control plioI' to European infiltration and, as previously noted, imposed hegemonic leadership involves social order through brutality, tOlture and death developing intellectual, moral (Hoebel 1954:268). and philosophical consent from The Avungara used brutality as a all major groups in a nation. It means of power, with fear at the centre of their involves an emotional psychological hold over the masses. Howe~er, dimension too, in that those a distinction must be made between coercIve political leaders who seek power and leadership. The leadership of the hegemonic leadership must Avun

TOTI':i\f mill 21l1l2-2111J.1 Copl'fight © 21111.1 TOTI ':~I: The UWO Journal of .\nthropo]ogl' to the Azande who, now free from terror, were fours or stumble slowly on his feet"(Evans- able to pursue magic as a means of justice. Pritchard 1937:419). These new magic tools They no longer needed to rely on a system of yielded punishments which would otherwise be legal proceedings set up by "supercilious restricted by the colonial government. In as much aristocrats of an alien, conqueling caste" as the government did not validate magic in the (Hoebel 1954:271) and administered under a COUlt it could not. therefore, prosecute its use and system of brutality, but could instead rely on a the Azande were then free to seek justice through system of justice which was viable in the channels which, according to the Azande, showed context of their own beliefs. far more prudence than colonial and tlibal courts. Previously, chiefs had been opposed to Colonialism did not provide an adequate many forms of magic. Gbudwe. for example, model for justice within Zande society and at the found any form of magic intolerable "unless it same time restlicted the power of the chiefs. The had been known to his father"(Evans-Plitchard Avungara chiefs. who opposed many forms of 1964:221). Although Gbudwe made use of the magic, were now powerless to stop its evolution poison oracle on many occasions (Evans- within the closed associations. But why did magic Plitchard 1937:290, 310), there were many in particular evolve as a viable alternative to legal forms of magic which were unknown to the action?"Bourdieu argues that agents act within Azande during his lifetime. They included socially constructed ranges of possibilities, vengeance-magic, thunder-magic against durably inscribed within them ... as well as within wrongdoers. and sorcery-magic to aid in the the social world in which they move" (Calhoun pursuit of vengeance (Evans-Plitchard 1995: 144). Some magic, like the poison oracle, 1964:221). remains a longstanding custom, prevalent in the The appearance of new forms of magic daily lives of the Azande, and magic therefore was directly related to colonization since it had falls within their social world. Bourdieu states: the specific purpose of providing punishments in lieu of those which were forbidden by the The source of historical colonial administration. Ngbasu Mani is one action .. .is not an active subject such magic belonging to the closed association confronting society as if that of Mani (Evans-Pritchard 1937:416). society were an object According to members of the association. this constituted externally. The magic only attacks wrongdoers and will have no source resides neither in effect on the innocent (Evans-Pritchard consciousness nor in things but 1937:417). Consequently, the magic is "never in the relationship between two employed in direct opposition to the law" stages of the sociaL that is, (Malinowski 1926:92). According to Evans- between the history objectified Pritchard 0937:419). a second new magic in things. in the form of appeared in Zande culture subsequent to the institutions. and the history infiltration of colonial powers: AI1/{/f({ngi. or incarnated in bodies. in the medicine of the hunt, comes to the Azande from form of that system of endUling Bongoland. Amarangi is considered good dispositions which I call medicine, as a man who has permission to take habitus. (Calhoun 1995:144) something from its owner's homestead will not be harmed (Evans-Pritchard 1937:-1-19). According to Bourdieu. individuals. as agents. Conversely, a man who steals will be struck make use of possibilities available to them, down. The magic of amarangi includes a ritual whether conscious or not. and "the habitus is the where "if someone hates you and docs you ill source of these series of moves which are without cause you take a white fowl and cut its objectively organized as strategies without being throat in the path of the man' s homestead and the product of genuine strategic intention-which leave it there" (Evans-Pritchard 1937:-1-19). would presuppose at least that they are perceived According to Azande beliefs. if the man steps as one strategy among other possible strategies" over the fowl he will die (E\'ans-Pritchard (Calhoun 1995: 145). Witchcraft was part of the 1937:419). Amarangi is also useful for dri\ing Zande social world and as such, was a viable away witches and sorcerers. as a sorcerer \\'ho strategy for administering justice. The traditions, comes with ill intent will be plagued with "pain customs, myths and experiences within Zande in the wrists, crutch of the arms. knees and society contlibute to the habitus, which "makes elsewhere, and he will be forced to cra\\'1 on all

II) II \1" ,I II 211112-21111"

C"r' 1"1,-:111 , 2""; I( ) II \1: TI,,· l'\\'() .Iournal"f ,\nthror"I"",,, possible the achievement of infinitely Witchcraft has, to some extent, worked diversified tasks, thanks to the analogical its way into the legal system of the state. The use transfers of schemes permitting the solution of of witchcraft could not be ignored and has similarly shaped problems. and thanks to the manifested itself within the boundaries of the unceasing conections of the results obtained" "sound mind." In a legal decision from South (Calhoun 1995: 149). The extensive use of Aflica the COUltconcluded the following: witchcraft is therefore an evolution made possible by the habitus in the face of colonial A mind [which] though not administration and the destruction of the diseased so as to provide institution of Avungara rule. evidence of insanity in the legal Magic, as an altemati ve to legal sense, may be subject to a procedures, became prevalent when customary delusion, or to some eIToneous law stood in opposition with the colonial courts. belief or some defect, in This conflict manifested itself within the circumstances which would institution of maniage and the concept of make a crime conunitted under divorce. Divorce was essentially unheard of in its influence less reprehensible pre-colonial Zandeland; a maniage, once or diabolical than it would be in established, was considered a "pern1anent the case of a mind in normal indissoluble union between a man and a condition ... When we find a woman" (Baxter 1953:68). With the colonial case like this, where there is government came a new set of laws, which were prof.ound belief in witchcraft, not as restrictive on divorce and likely and ... we find that this has been contributed to the instability of the institution of the moti ve ... we feel bound to maniage in Zande society. The possibility of regard the accused to be divorce caused tension among the Azande. labouring under a delusion Evans-Pritchard cites a case brought before the which ... thus provides COUltSwhere a divorce, as granted by the COUlt, extenuating circumstances. prompted a husband to seek vengeance magic (Hooker 1975: 135) (amatangi or rikikpa) against the man who committed adultery with his wife (Evans- The defence of insanity also appears within the Pritchard 1937:420). The law, having no scope of the 1899 Sudanese Penal Code, where, protocol to punish this individual, created a according to section 63, "nothing is an offence situation in which magic provided what could which is done by a person who. at the time of be considered an acceptable alternative to legal doing, by reason of unsoundness of mind, is justice. incapable of knowing the nature of the act..." Magic became more prevalent after the Although there is no record of its use plioI' to appearance of colonial powers in Zandeland and Sudan's independence, individuals began to use it has manifested itself in the form of ritual the defence of insanity for crimes resulting from associations. Associations for the practice of the use of witchcraft. In the case of Sudan magic were made illegal and the Government of Government v. Fatma Hussein el Bakheit, the the Anglo-Egyptian Sudan punished members accused was said to be practicing nati ve of such associations. As a result, associations medicine, which in turn caused the death of such as Mani, Biri, Nanda, Kpira, Siba. and another. Although the accused was convicted of Wanga became "subtenanean and subversive" negligent homicide, the charge of culpable (Evans-Pritchard 1937:511). Evans Plitchard homicide was dropped, as the accused claimed to (1937:512) sites this trend as being indicative of be possessed by the "Kugur" Spilit, and "was social change, a function of European rule and a ignorant of what she was doing"(1966). The sign of the detelioration of tradition. The absence of any such cases under the colonial appearance of the associations coincided with administration may suggest that the Azande had the appearance of colonial government and little faith in a foreign legal system, but that over although this intervention brought sanctions time, individuals were able to bridge the gap against associations, they continued to floUlish between custom and law. as a means of judgement for those who Industrialization and the global economy committed, or who intend to commit an offence have no doubt had an effect on the Azande. Since recognized by traditional Zande law (Evans- the work of Evans-Plitchard, Africa has Pritchard 1937:523). undergone significant political and economic

TUI'I':,\! ",I!! 211112-21111) Copnight iD 21111.)TOTI ,:i\l: T!ll'U\\'O .!ollma! or\nthropologr changes and it is likely that many Azande have Durkheim, Emile. 1938. The Rules of sought work in urban and rural settings-in Sociological Method. George E.G. situations where there is competition for jobs Catlin, ed. Sarah A. Solovay and John and wages. Rather than abandon uibal custom, H. Mueller, trans. Glencoe, Ill.: The Free the Azande may have adapted their beliefs so Press. that witchcraft may reflect the conflict alising from said competition. This paper establishes a Evans-Plitchard, E. E. 1937. Witchcraft, basis for understanding the influence of colonial Oracles and Magic among the expansion on the efficacy of customary law Azande. London: Oxford University among the Azande, and leaves open for further Press. investigation whether recent ethnographic material agrees with the stated conclusions. In 1962. "Zande kings and plinces." /n the absence of strong tribal authority, magic Social Anthropology and Other became a means of administering justice Essays, E. E. Evans-Pritchard, ed. Pp. without the abandonment of customary 213-242. New York: The Free Press. practices. Colonial rule may have removed the customary court systems of the Avungara chiefs 1971. The Azande: HistOlY and Political and restricted the brutality of punishment, but Institutions. Oxford: Oxford its intrusion did not serve to eradicate custom. University Press. Instead, custom adapted and continued as a strong part of Zande morality and social order. Gluckman, Max. 1956. Custom and Conflict in Africa.Oxford: Basil Blackwell.

Hoebel, E. Adamson. 1954. The Law of Asad, Talal. 1975.'Two European Images of Primitive Man: a Study in Comparative Non-European Rule." /n Legal Dynamics.Camblidge: Harvard Anthropology and the Colonial University Press. Encounter. Talal Asad, ed. Pp. 103- 118. London: Ithaca Press. Hooker, M. B. 1975. Legal Pluralism: an Introduction to Colonial and neo- Baxter, P. T. W. and Audrey Butt. 1953. The colonial Laws. London: Oxford Azande and related peoples of the University Press. Anglo-Egyptian Sudan and Belgian Congo. London: Hazell, Watson Hunt, Alan, and Gary Wickham. 1994. and Viney Ltd. for the International Foucault and Law:Towards African Institute. Sociology of Law as Governance. Boulder: Pluto Press. Bocock, Robert. 1986. Hegemony. Chichester: Ellis Horwood Ltd. Malinowski, Bronislaw. 1926. Oime and Custom in savage Society.London: Bourdieu, Pierre. 1998. Practical Reason: On Routledge and Kegan Paul Ltd. the Theory of Action. Camblidge: Polity. Mamdani, Mahmood. 1996. Citizen and subject: contemporary Aflica and the Calhoun, Craig J. 1995. Oitical Social legacy of late colonialism. Princeton: Theory: Culture, History, and the Plinceton University Press. Challenge of Difference. Cambridge, Mass.: Blackwell Publishers. Reining, Conrad C. 1966. The Zande Scheme: an Anthropological Case Cotterrell, Roger. 1999. Emile Durkheim: Study of Economic Development in Law in a Moral Domain. Edinburgh: Africa. Evanston: N0l1hwestern Edinburgh University Press. University Press

TOTI':~1 mill 211112-21111.1 Copyright © 2111n '1'0'1'1 ':~I:The UWO .JoufIla! oC \nthropolog\' Reyntjens, Filip. 1992. The development of Sudan. The Sudan Penal Code. Cairo: the dual legal system in former National Plinting Office, 1899. Gelgian Central Africa (Zaire- Rwanda-Burundi). In W. J. Vanderliden, Jacques. 1969. Coutumier, Monunsen and J. A. de Moor, ed., Manuel et Jurisprudence du Doit European Expansion and Law, pp.ll- Zande, Bruxelles; Editions de 127. Oxford: Berg publishers, Inc. rInstitut de Sociologie de rUniversite Libre de Bruxelles. Sudan. The Judiciary. The Sudan Law Journal and Reports 1966. Pp.75-80. Khartoum.