Unintended consequences of legal westernization in Niger: Harming contemporary slaves by reconceptualizing property

American Journal of Comparative Law

Volumn 56, Issue 4, 2008, Pages 999-1038

  Kelley, Thomas ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 56149123866     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2007.0033     Document Type: Article

References (360)

1. The "West" refers to European and North American donor countries and the international institutions they control, most notably the United Nations, the World Bank, and the International Monetary Fund. Non-Western countries such as China and Libya also wield power in Niger. However, those countries' agendas have not focused on law reform, leading me to disregard them for purposes of this project.
2. JAMES A. GARDNER, LEGAL IMPERIALISM, AMERICAN LAWYERS AND FOREIGN AID IN LATIN AMERICA 8 (1980) (referring to "legal missionaries" from the United States who disbursed across Africa in the 1960s).
3. See also Laure-Helene Pirou, Time to Learn, Time to Act in Africa, in Promoting the Rule of Law Abroad: In Search of Knowledge 276-80 (Thomas Carothers, ed., 2006) (describing the successive waves);
4. Leonardo A. Villalón & Abdourahamane Idrissa, Repetitive Breakdowns and a Decade of Experimentation, Institutional Choices and Unstable Democracy in Niger, in THE FATE OF AFRICA'S DEMOCRATIC EXPERIMENTS, ELITES AND INSTITUTIONS 27 (Leonardo A. Villalón & Peter VonDoepp, eds., 2005) (referring to a recent "world-wide wave" of pro-democracy agitation).
5. See Thomas Carothers, The Rule of Law Revival, 77 FOREIGN AFFAIRS 95, 97 (1998) (arguing that rule of law reforms are intended to "consolidate both democracy and market economics").
6. GARDNER, supra note 2, at 8-9.
7. See David M. Trubek, Toward a Social Theory of Law: an Essay on the Study of Law and Development, 82 YALE L J. 1, 2, 4, 16 (1972) (arguing that the law and development movement failed because of a "core conception of modern law" as an "ethnocentric and evolutionist generalization from Western history," which "cannot deal effectively with the realities of legal life in the Third World");
8. John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 AM. J. COMP. L. 457, 481 (1977) (blaming the law and development failure on, among other things, "unfamiliarity with the target culture and society");
9. David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 WIS. L. REV. 1062, 1073, 1079-80 (arguing law and development reformers were too rooted in their own liberal American political philosophy);
10. Heinz Klug, Model and Anti-Model: The United States Constitution and the "Rise of World Constitutionalism," 2000 WIS. L. REV. 597, 602 (noting that many constitutional reforms acted merely to "guarantee the ill-gotten gains of colonial settlers over the historic rights of the colonially dispossessed");
11. Ronald J. Daniels & Michael Trebilcock, The Political Economy of Rule of Law Reform in Developing Countries, 26 MICH. J. INT'L L. 99, 107-08 (2004) (blaming the failure on lack of resources, a lack of norms hospitable to the "rule of law," and a political economy of entrenched interests that oppose democratic reform).
12. See Peter VonDoepp & Leonardo A. Villalón, Elites, Institutions, and the Varied Trajectories of Africa's Third Wave Democracies, in The Fate of Africa's Democratic Experiments, supra note 2, at 1, 4;
13. Thomas Kelley, Exporting Western Law to the Developing World: The Troubling Case of Niger, 39 GEO. WASH. INT'L L. R. 340 (2007).
14. VonDoepp & Villalón, supra note 5, at 1.
15. See Klug, supra note 4, at 602 (stating the end of the Cold War "witnessed a wave of constitution making");
16. Carothers, supra note 3, at 95, 103 (noting law reform in developing countries has mushroomed and is "enjoying a new run as a rising imperative of globalization").
17. See Leonardo A. Villalón, The Moral and Political in African Democratization: the 'Code de la Famille' in Niger's Troubled Transition, 3 DEMOCRATIZATION 41, 44, 61-63 (1996) (noting that in Niger the transition to democracy and rule of law has been heavily influenced by the United States and other Western countries, in part by employing the leverage afforded by their financial resources).
18. See Klug, supra note 4, at 615 (referring to a new wave of Western lawyers engaged in "an orgy of junketeering to far-off places").
19. See generally Mission D'Analyse et de Formulation du Cadre Général du Processus de Réformes et du Programme d'Appui aux Réformes Judiciaires au Niger, KR-1994 (2003) [hereinafter Mission d'Analyse] (a comprehensive plan for legal reform drafted in cooperation with French, German, and Danish legal experts).
20. See Carothers, supra note 3, at 95-96 (stating recent law reform has involved "rewriting constitutions, laws, and regulations," in addition to "far-reaching [legal] institutional reform").
21. Villalón, supra note 7, at 45.
22. See The World Bank, Building Institutions for Markets, 34-38 (2002) (discussing the importance of secure property rights and formal land titles); Steven E. Hendrix, Myths of Property Rights, 12 ARIZ. J. INT'L & COMP. L. 183, 184 (spring 1995) (noting that the United States Agency for International Development and the World Bank have strongly promoted land titling and registration as a core development strategy);
23. KATHERINE VERDERY, THE VANISHING HECTARE: PROPERTY AND VALUE IN POSTSOCIALIST TRANSYLVANIA (2003) (arguing law reformers in Eastern Europe "took it as axiomatic" that creating private ownership was both an unalloyed good and a necessity).
24. See generally HERNANDO DE SOTO, THE MYSTERY OF CAPITAL, WHY CAPITALISM TRIUMPHS IN THE WEST AND FAILS EVERYWHERE ELSE (2000).
25. DE SOTO, supra note 11, at 52.
26. Id.
27. Id.
28. Id. at 55.
29. See id. at 4.
30. See Thomas Carothers, The Problem of Knowledge, in PROMOTING THE RULE OF LAW ABROAD supra note 2, at 17-18 (arguing generally that rule of law reform has produced ambiguous economic results, at best).
31. See also Jonathan Manders, Note, Sequencing Property Rights in the Context of Development: A Critique of the Writings of Hernando de Soto, 37 CORNELL IN'L L.J. 177, 184 (2004).
32. See generally Hendrix, supra note 11, at 183.
33. In recent decades legal and economic scholars have disagreed as to whether customary land tenure schemes are in fact insecure and whether they can rightly be blamed for retarding economic expansion and whether land privatization in fact creates economic and social advantages. In 1975, the World Bank issued a Land Reform Policy Paper insisting that formal land titling was a precondition for economic development. WORLD BANK, LAND REFORM (Policy Paper No. 11018, May 1975), available at http://www-wds.worldbank.org/servletyWDS_IBank_Servlet?pcont= details&eid=000178830_98101911122064.
34. The notion, which was based on Hardin's tragedy of the commons thesis, Garrett Hardin, Tragedy of the Commons, 162 SCIENCE 1243 (1968), was that countries could develop only if so-called "community property," prevalent in Africa and much of the developing world, was formally divided into securely titled, individual freeholds. However, more recent empirical scholarship has called the entire hypothesis into question. Some have found that factors other than lack of formal ownership and land titles, factors such as shortage of labor and lack of education, are impeding economic growth. In the mid-1990s, the World Bank began to back away from its insistence that a freehold land tenure was a prerequisite to economic development, but that view has continued to influence state policy across Africa.
35. See Julian Quan, Land Tenure, Economic Growth and Poverty in Sub-Saharan Africa, in EVOLVING LAND RIGHTS, POLICY AND TENURE IN AFRICA 31, 34-38 (Camilla Toulmin & Julian Quan eds., 2000);
36. Jean-Philippe Platteau, Does Africa Need Land Reform?, in EVOLVING LAND RIGHTS, POLICY AND TENURE IN AFRICA, supra, at 51, 56;
37. Shem E. Migot-Adholla & John Brace, Are Indigenous African Tenure Systems Insecure?, in SEARCHING FOR LAND TENURE SECURITY IN AFRICA 1, 4-8 (Shem E. Migot-Adholla & John Bruce eds., 1994);
38. John W. Bruce, Shem E. Migot-Adholla & Joan Atherton, The Findings and Their Policy Implications: Institutional Adaptation or Replacement, in SEARCHING FOR LAND TENURE SECURITY, supra, at 251-64.
39. See Republic of Niger, Office of the Prime Minister, Permanent Secretariat for the Poverty Reduction Strategy, Threshold Program - Millennium Challenge Corporation Action Plan (Translated English Version), May 2007, 26-44 [hereinafter Niger Millennium Challenge Report 2007] (copy on file with author) (describing the regularization of land rights as one of three pillars of the Millennium Challenge Corporation program for Niger).
40. My field research, which consisted primarily of semi-structured ethnographic interviews in rural Nigerien communities that were being affected by legal westernization, took place during a year-long stay in 2003-2004. During that time I observed and performed interviews in five slave communities and gathered second-hand accounts of approximately fifteen others. I also have benefited from numerous accounts of contemporary slavery gathered by Timidria, Niger's leading anti-slavery human rights organization. See, e.g., Alhamdou Intalla, "Litige de Champ" à Intoussan (Abala-Filingué), LETTRE DE TIMIDRIA, July 2004, at. 6 (copy on file with author) (reporting nobles selling land traditionally cultivated by slaves);
41. Timidria, LETTRE DE TIMIDRIA, Mar. 2004, at 5-6 (copy on file with author) (recounting nobles selling slave lands with the complicity of the local Land Commission);
42. Timidria, LETTRE DE TIMIDRIA, Mar., 2007, at 2 (copy on file with author) (recounting a story of nobles reclaiming land traditionally farmed by slaves).
43. See generally Abdourahaman Chaibou & Mahaman Nanzir, Etat Des Dossiers de Timidria Suivis Par Maitre Abdourahaman Chaibou, Avocat a la Cour a la Date du 26 Décembre 2006 (copy on file with author) (a report from a Niamey law office listing its representation of Timidria in nine separate legal cases involving nobles seizing or selling land out from under traditional slaves). For a rare example of a scholar who has spent time in the African hinterlands performing fieldwork on the effects of Western law reform, see CHRISTIAN LUND, LAW, POWER AND POLITICS IN NIGER: LAND STRUGGLES AND THE RURAL CODE (1988).
44. See Stephen Golub, Beyond Rule of Law Orthodoxy, The Legal Empowerment Alternative 25 (Carnegie Endowment For Int'l Peace, Working Paper No. 41, 2003) (critiquing recent law reform efforts in the developing world and calling for law reformers to "tromp around in the boondocks" of poor countries before writing new laws for them);
45. GARDNER, supra note 2, at 8-9 (arguing that Western law reformers arrived in the developing world "unencumbered by any significant understanding of the local language, law, polity, economy, or culture" and as a result were "inept, culturally unaware, sociologically uninformed . . . [and] ethnocentric.");
46. Merryman, supra note 4, at 480 (stating Western lawyers often blundered in to the top rungs of foreign society without understanding what was going on below).
47. BUREAU OF AFRICAN AFFAIRS, U.S DEPARTMENT OF STATE, BACKGROUND NOTE: NIGER (Mar. 2005), available at http://www.state.gov/r/pa/ei/bgn/5474.htm [hereinafter NIGER BACKGROUND NOTE 2005].
48. I developed a basic command of the Zarma language during Peace Corps service in a small, rural village from 1986-1988. I am aware of the perils of making sweeping, reductive generalizations about "Nigerien culture and tradition," or, worse yet "African culture and tradition," based on intimate knowledge of only one of its ethnic groups. My intent is to proceed inductively, offering a detailed analysis of the clash between Western and Zarma linguistic, cultural, and legal conceptions that will concretely illustrate the complexity of exporting Western law. Based on those specific examples, I will extrapolate more general conclusions to the boundaries of Niger and beyond.
49. NIGER BACKGROUND NOTE 2005, supra note 22 (estimating Niger is three times the size of California).
50. Id. (noting that two thirds of Niger is in the Sahara Desert).
51. U.N. DEVELOPMENT PROGRAM, HUMAN DEVELOPMENT REPORT 2005 NIGER COUNTRY FACT SHEET (2005), available at hdr.undp.org/ statistics/data/country_fact_sheets/cty_fs_NER.html [hereinafter U.N. DEVELOPMENT REPORT 2005] (noting among other things that a majority of Niger's people lives on less than $1 per day and 85% live on less than $2).
52. Id. See also U.S. CENTRAL INTELLIGENCE AGENCY, WORLD FACTBOOK: NIGER (2006), available at http://www.cia.gov/cia/publications/factbook/geos/ng.html )[hereinafter CIA WORLD FACTBOOK 2006] (estimating the population at 12.5 million).
53. U.N. DEVELOPMENT REPORT 2005, supra note 26.
54. 29 WORLD BANK, NIGER COUNTRY BRIEF (Sept. 2004), available at http://web.worldbank.org/ WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/NIGEREXTN/0,, menuPK%3A382460~pagePK%3A141132~piPK%3A141107-theSitePK (stating Niger possesses no significant mineral deposits other than uranium).
55. But see NIGER BACKGROUND NOTE 2005, supra note 22 (stating Niger has some exploitable gold deposits and potential for oil exploration).
56. WORLD BANK, NIGER COUNTRY BRIEF, supra note 29.
57. See CIA WORLD FACTBOOK 2006, supra note 27 (saying 90% of Niger's population works in agriculture and mentioning Niger's environmental challenges of overgrazing, soil erosion, deforestation and desertification).
58. Christian Lund, Struggles for Land and Political Power: On the Politicization of Land Tenure and Disputes in Niger, 40 J. LEGAL PLURALISM & UNOFFICIAL L. 3, 4 (1998).
59. As with all social categories, the classification "noble" is variable and contested. In Part I.B.2, infra, we will closely analyze the social category "slave" along with its various cognates in the Zarma culture and language. As to the term "noble," this note will have to suffice. In the communities where I performed my fieldwork, practically all non-slave residents were descendants of the warriors (wonkoy) who had founded their villages, and all considered themselves noble (koyize, or, "children of the keepers"). Many noble men refer to themselves as direct descendants of particular warriors. For example, people in several villages in the region refer to themselves as korumbize, or "children of Korumbai," Issa Korumbai being a powerful nineteenth century warlord. Typically, village level chiefs were chosen from among the koyize. In effect that meant that only direct descendants of the village founder(s) could vie for leadership. I have been told, but have never confirmed, that in other regions of Zarma-speaking Niger, people consider themselves noble only if they can trace their ancestry beyond the warrior epoch to the arrival of Zarma and Songhay-speaking people in the region after the fall of the Songhay Empire at the end of the sixteenth century. Not everyone in the rural villages where I performed my fieldwork is considered either koyize or slave. There are occasional instances where a man, either recently or in earlier generations, moved from elsewhere and cultivated village agricultural land in at the sufferance of local nobles. These men often are referred to as yow, which means guest or foreigner. In other regions, where these outsiders are more numerous, they are referred to as talaka. The term talaka is sometimes translated as "free person," meaning not a noble but not a slave, but in the zone of my research talaka is more often used to mean "poor person," no matter his origin or social status. In Zarma culture women do not inherit land. This is so even in Zarma communities that claim to follow Islamic shari'a law, which grants female children a half share of land as compared to their male siblings. See David S. Powers, The Islamic Family Endowment (Waaqf), 32 VAND. L. J TRANSNAT'L L. 1167, 1169 (1999).
60. 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, 682 n.176 (Spring 2002).
61. See id.
62. PAUL STOLLER, FUSION OF THE WORLDS: AN ETHNOGRAPHY OP POSSESSION AMONG THE SONGHAY OF NIGER 27 (1989).
63. Id. See SARA BERRY, NO CONDITION IS PERMANENT: THE SOCIAL DYNAMICS OF AGRARIAN CHANGE IN SUB-SAHARAN AFRICA 106 (1993) (noting the spiritual underpinnings of traditional land tenure).
64. See generally, Annemarie M. Terraciano, Contesting Land, Contesting Laws: Tenure Reform and Ethnic Conflict in Niger, 29 COLUM. HUM. RTS L. REV. 723, 737 (1998) (noting that the laabu koy's authority derived from his spiritual relationship with the land).
65. See NORBERT ROULAND, LEGAL ANTHROPOLOGY 216 (Philippe G. Planel trans., Stanford Univ. Press 1994) (1988).
66. See BERRY, supra note 36, at 106 (quoting a Yoruba chief as saying that "land belongs to a vast family of which many are dead, few are living, and countless numbers are yet unborn").
67. See Powers, supra note 32, at 1169 (stating Islamic inheritance law dictates that land be passed within a nuclear family from one generation to the next).
68. Interview with Group of Villagers, in Fandou Berri, Republic of Niger (June 1, 1996); Interview with Yaye Issa and Issafou Lali, in Fandou Berri, Republic of Niger (May 22, 2000).
69. Interview with Bachirou Djibo and others, in Fandou Berri, Republic of Niger (Oct. 21, 2003).
70. Interview with Yaye Issa, in Fandou Berri, Republic of Niger (May 27, 1996). See Interview with Bachirou Djibo, in Niamey, Republic of Niger (May 18, 2000) (discussing continuous joint ownership of land).
71. MOUSTAPHA KADI OUMANI, UN TABOU BRISE: L'ESCLAVAGE EN AFRIQUE, CAS DU NIGER 22 (2005).
72. IDRISSA KIMBA, GUERRES ET SOCIÉ TÉS, LES POPULATIONS DU "NIGER" OCCIDENTAL AU XIX SIÈCLE ET LEURS RÉACTIONS FACE ÀLA COLONISATION (1896-1906) 76 (1981).
73. See infra note 99 and accompanying text.
74. KIMBA, supra note 44, at 27;
75. OUMANI, supra note 43, at 116.
76. JEAN-PIERRE OLIVIER DE SARDAN, LES SOCIÉTÉS SONGHAY-ZARMA (NIGER-MALI) 62 (1984);
77. FINN FUGLESTAD, A HISTORY OF NIGER 1850-1960 39-41 (1983).
78. PAUL E. LOVEJOY, TRANSFORMATIONS IN SLAVERY, A HISTORY OF SLAVERY IN AFRICA 68 (2d ed., 2000).
79. See Kimba, supra note 44, at 42 (referring to the shift of power to warriors in nineteenth century Zarma-Songhay society).
80. See ANTI-SLAVERY INTERNATIONAL & TIMIDRIA, SLAVERY IN NIGER: HISTORICAL, LEGAL AND CONTEMPORARY PERSPECTIVES 29 (Galy Kadir Abdelkader, ed., 2004) [hereinafter SLAVERY IN NIGER] (noting that nineteenth century warfare made agricultural work an occupation of the servile classes);
81. KIMBA, supra note 44, at 59 (same);
82. FUGLESTAD, supra note 47, at 41-43 (discussing Zarmas' increasing dependence on slave labor and the deteriorating conditions of domestic slaves during the warrior epoch).
83. LOVEJOY, supra note 48, at 73, 75.
84. MARTIN A. KLEIN, SLAVERY AND COLONIAL RULE IN FRENCH WEST AFRICA 17 (1998) (noting that France had outlawed slavery in 1848 and its citizens held strong abolitionist sentiments, so colonial administrators felt compelled to make frequent anti-slavery pronouncements but did little to end slavery);
85. OLIVIER DE SARDAN, supra note 47, at 190 (arguing the French passed many decrees directed at French public opinion but did little to end slavery in Niger).
86. KLEIN, supra note 52, at 17.
87. See also Trevor R. Getz, Slavery and Reform in West Africa: Toward Emancipation in Nineteenth-Century Senegal and the Gold Coast 30 (2004) (arguing the French were unenthusiastic about emancipation in West Africa).
88. OUMANI, supra note 43, at 123, 126;
89. SLAVERY IN NIGER, supra note 50, at 37;
90. Jean-Pierre Olivier de Sardan, Esclavage d'Echange et Captivité Familiale Chez les Songhay-Zerma, XLII JOURNAL DE LA SOCIÉTÉ DES AFRICANISTES 151, 165 (1973).
91. See LOVEJOY, supra note 48, at 268 (arguing the French used slaves to meet labor needs);
92. see also GETZ, supra note 53, at 47 (same);
93. KLEIN, supra note 5, at 93, 176 (arguing that the French were in a resource squeeze and moved against slavery only when they needed to capture the labor of freed slaves). France was innovative in the matter of saying one thing and doing another when it came to indigenous African slavery. It avoided the need to apply French Republican laws - and thus abolition - to Africans in the colonies by dividing French people into two classes: citoyens (citizens) who enjoyed all the rights granted by France's constitution and laws, and indigénes (indigenous people or subjects) who did not. Needless to say, almost all Nigeriens fell into the latter category.
94. SLAVERY IN NIGER, supra note 50, at 36;
95. FUGLESTAD, supra note 47, at 68. France also employed careful language to support claims that slavery did not exist in its colonies. It called the people of servile status in Niger captives rather than slaves, which permitted it to claim at the Brussels Conference in 1889-90 that slavery did not exist in its West African colonies.
96. OLIVIER DE SARDAN, supra note 47, at 190.
97. Also, France created institutions that permitted it to appear committed to abolition while channeling slaves' labor toward the colonial enterprise. It devised a system called engage a temps (temporary engagement) under which government officials received escaped slaves and pressed them into service as indentured laborers for periods often to fourteen years. GETZ, supra note 53, at 46. The plan was presented to the French public as a way to ease freed slaves into independent living, but historians generally agree its real purpose was to help the colonial administration meet its labor needs. See LOVEJOY, supra note 48, at 268;
98. GETZ, supra note 53, at 46-47. Similarly, the French created villages de liberté (liberty villages) to welcome escaped slaves. They usually were established along the lines of French military advances,
99. KIMBA, supra note 44, at 206 (noting that one liberty village was established just north of Niger's present day capital, Niamey), and those Africans who landed in them were treated essentially as slaves of French soldiers.
100. LOVEJOY, supra note 48, at 269;
101. KLEIN, supra note 52, at 84-85.
102. Id. at 165, 192 (arguing the French opposed the capturing, buying, and selling of slaves in Niger but ignored other slavery practices);
103. SLAVERY IN NIGER, supra note 50, at 37-40 (arguing the French administrators passively resisted early twentieth century decrees abolishing slavery).
104. FUGLESTAD, supra note 47, at 120, 148.
105. OLIVIER DE SARDAN, supra note 47, at 195.
106. OUMANI, supra note 43, at 125.
107. FUGLESTAD, supra note 47, at 16, 109, 120-121;
108. ROBERT CHARLICK, NIGER: PERSONAL RULE AND SURVIVAL IN THE SAHEL 40 (1991).
109. See generally FUGLESTAD, supra note 47, at 121;
110. CHARLICK, supra note 60, at 40.
111. FUGLESTAD, supra note 47, at 16.
112. See Jean-Pierre Olivier De Sardan, Anthropology and Development: Understanding Contemporary Social Change 205 (Tidjani Alou trans., 2005) (referring to Nigerien civil servants' contempt for peasants).
113. See OUMANI, supra note 43, at 126.
114. See Slavery in Niger, supra note 50, at 54-56 (noting that in the post-independence government most of the important ministries were controlled by traditional chiefs).
115. See also Olivier de Sardan, supra note 54, at 166 (explaining that the wealth of post-independence chiefs depended on slavery and that the évolué could not attack this relationship because they needed the chiefs to maintain power).
116. Before the recent spate of law reforms, Niger's post-independence government had officially addressed the topic of slavery only once. In 1969, a regional government administrator in the town of Tanout, in north-central Niger, sent a letter to Niger's Minister of Justice seeking guidance on how to deal with questions of inheritance among Tuareg slaves (bella) in his region. Although Nigerien state civil law permitted any citizen to leave personal property to his heirs, custom dictated that all of a slave's personal property belonged to the master and reverted to him upon the slave's death. In Niamey, government officials passed the request for guidance from ministry to ministry (all of the relevant ministries were controlled by traditional chiefs) until an official response was issued, reminding the regional official that Niger's pluralist legal system permitted traditional chiefs to rule on matters of custom, and that inheritance was just such a matter. In other words, the government determined that slavery customs should determine the outcome, and the masters should retain the property in question. The minister who came up with this answer - himself a Tuareg from a noble family - went on to note that increasing numbers of Tuareg slaves were taking advantage of de jure emancipation to fraudulently claim ownership of their former masters' cattle, and that they should be aggressively prosecuted under the Penal Code in such instances. SLAVERY IN NIGER, supra note 50, at 55-56.
117. SLAVERY IN NIGER, supra note 50, at 88. This number would equal approximately seven percent of Niger's population.
118. Paul Raffaele, Born Into Bondage: Despite denials by government officials, slavery remains a way of life in the African nation of Niger, SMITHSONIAN MAGAZINE, Sept. 2005, at 67 (noting that Niger's government denies the existence of slavery, and the U.S. Embassy in Niger professes little knowledge of it);
119. Mike Pflanz, Anti-Slavery Activists Jailed. Niger Says What Slaves?, CHRISTIAN SCIENCE MONITOR, May 2005 (available at http://www.csmoiiitor.com/2005/0520/p04s01-woaf.html) (reporting arrests and Niger's denying the existence of slavery).
120. Niger Gov't Rejects Allegations Slavery Continues to Exist, AGENCE FRANCE PRESSE, May 26, 2005, available at LEXIS, Nexis Library, Agence France Presse File (quoting Niger government spokesperson denying the existence of slavery and challenging the world "show us a single slave market").
121. OLIVIER DE SARDAN, supra note 47, at 27;
122. Paul Stoller, The Negotiation of Songhay Space: Phenomenology in the Heart of Darkness, 7 AMERICAN ETHNOLOGIST 420, 422 (1980);
123. OUMANI, supra note 43, at 22;
124. KIMBA, supra note 44, at 206.
125. See infra Part U.C.
126. OUMANI, supra note 43, at 150.
127. See SLAVERY IN NIGER supra note 50, at 61 (citing an example of a wedding in Niamey's Boukoki neighborhood canceled when servile origins were discovered); Interview with Bachir Tidiani, in Niamey, Republic of Niger (Feb. 26, 2004) (claiming that even among educated elites in Niamey, nobles do not marry slaves).
128. OLIVIER DE SARDAN, supra note 47, at 31.
129. See OUMANI, supra note 43, at 141 (noting many slaves are confined to their own quarter of Zarma villages).
130. See generally, Stoller, supra note 70, at 422-23 (discussing the symbolic importance of spatial organization of villages in maintaining the noble-slave hierarchy).
131. Olivier de Sardan, supra note 54, at 158.
132. Id.
133. See infra notes 98-103 and accompanying text;
134. see also SLAVERY IN NIGER, supra note 50, at 60;
135. Olivier de Sardan, supra note 54, at 158-59.
136. See OLIVIER DE SARDAN, supra note 63, at 170-71 (arguing the goals of development projects often are confounded because they fail to take account of local languages and the differing cultural conceptions they represent).
137. OLIVIER DE SARDAN, supra note 47, at 27. It is of course an oversimplification to state that slavery is an entirely monolithic category in the American or Western worldview. 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. Also, comparative scholars have identified many sub-categories of slavery in various regions of the New World. 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.
138. A.J.R. RUSSELL-WOOD, SLAVERY AND FREEDOM IN COLONIAL BRAZIL xiii (2d ed. 2002).
139. It 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. See Introduction, BEYOND SLAVERY, EXPLORATIONS OF RACE, LABOR, AND CITIZENSHIP IN POSTEMANCIPATION SOCIETIES 6 (Frederick Cooper, Thomas C. Holt & Rebecca J. Scott, eds., 2000) (arguing that Americans have an established group of images associated with slavery that "makes it hard to tell a more nuanced and complicated story" about that institution).
140. OLIVIER DE SARDAN, supra note 47, at 27.
141. I was introduced to the enduring cultural relevance of the word tam, as well as the social category it represents, on my first day as a Peace Corps volunteer in an isolated Zarma village in 1986. As the village chief and a group of elders were showing me the grass hut that would be my home, they asked me my name. When I responded "Tom," they looked shocked and embarrassed and urged me to choose something different. Later, I learned what the word tarn meant and that the pronunciation of it and my name were similar. I agreed to participate in a naming ceremony to spare my neighbors the embarrassment of calling me Slave.
142. I should note that Jean-Pierre Olivier de Sardan, an eminent French anthropologist who is fluent in the Zarma language and has performed years of fieldwork among the Zarma and Songhay of Niger, explains Zarma terms for slavery somewhat differently. He has written that tarn, like banya, is generic. He adds that the term dray banya or literally "under slave," connotes a newly captured person who has no rights within the social group. See OLIVIER DE SARDAN, supra note 47, at 43-44. I am quite certain, however, that in the zone where I have performed field research, the term tarn is used as I explain in the text and the term dray banya is known but not often employed.
143. OUMANI, supra note 43, at 117. Oral history accounts of the founding of Zarma villages often begin with the patriarch departing on a slave raiding expedition and then requiring the captured slaves to dig the well that becomes the symbolic and practical life spring of the new community.
144. See, e.g., infra notes 177-78 and accompanying text.
145. There are other important social categories that, in translation, end up being folded into the English word "slave." For example, a female can fall into any of the categories thus far described, but if she is taken as a concubine by a noble (most often her master), and if she bears him a child, she becomes wahay. As such, she is no longer a banya, though her origins are never forgotten and she never achieves the status of noble (koyize) or free person (talaka) within the social group. The son born of a wahay is a wahayize, or child of wahay. A wahayize is considered to have no maternal ancestors. He is invested with his father's nobility and has the right to inherit and to vie for political leadership; however, he carries the stigma of servile blood in a society where status and rights are determined largely by one's ancestry. 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. See generally OLIVIER DE SARDAN, supra note 47, at 121.
146. Jean-Pierre Olivier de Sardan, Les Voleurs D'Hommes (Notes Sur L'Histoire Des Kurtey), Etudes Nigériennes 29, p. 11 (1969);
147. see Olivier de Sardan, supra note 54, at 154 (noting that the three generation rule of transition from tam or dray banya to horso varies in practice).
148. OUMANI, supra note 43, at 117.
149. Olivier de Sardan, supra, note 54, at 161.
150. Id. at 158;
151. SLAVERY IN NIGER, supra note 50, at 9. The term laabu albarka, which translates roughly to "land praise," describes annual post-harvest payments that borrowers of land remit to those who control it. In some cases it is nominal and largely symbolic, an acknowledgment that the person farming the land has only temporary rights in it. In other cases it looks more like a rent by which the cultivator turns over an agreed upon percentage of his harvest.
152. OLIVIER DE SARDAN, supra note 47, at 52.
153. See infra Part III.B. (describing a group of horso who live in their own village and pay laabu albarka to a noble chief).
154. Olivier de Sardan, supra note 54, at 160 (arguing a horso can never fully enter Zarma society);
155. OUMANI, supra note 43, at 117.
156. Oliver de Sardan, supra note 85, at 29, 34-35.
157. See supra Part I.E.
158. Id.
159. Stoller, supra note 70, at 421;
160. OUMANI, supra note 43, at 143-44.
161. Olivier de Sardan, supra note 54, at 158.
162. See also SLAVERY IN NIGER, supra note 50, at 60-61 (recounting a story of a slave descendant elected to leadership position in northern Niger in the mid-1990s and then deposed because of his servile origins).
163. See supra note 88 and accompanying text.
164. SLAVERY IN NIGER, supra note 50, at 9.
165. See OUMANI, supra note 43, at 117, 141.
166. I imply by this statement that horso are Zarma people. From an outsider's perspective, that is true: they speak the same language and adhere to the same cultural values. However, horso do not consider themselves to be Zarma, and, in fact, throughout my interviews with them, they routinely referred to themselves as banya or horso and to noble Zarmas as "Zarma people" or simply "they."
167. Olivier de Sardan, supra note 85, at 29;
168. ORLANDO PATTEBSON, SLAVERY AND SOCIAL DEATH, A COMPARATIVE STUDY 5 (1982).
169. Nigeriens repeat this story, even though they are perfectly aware of the historical fact that many slave ancestors were snatched as children when they were collecting firewood in the bush or pulling water from a distant well or in other circumstances where there was no volitional act associated with their enslavement. Olivier de Sardan, supra note 85, at 32.
170. SLAVERY IN NIGER, supra note 50, at 30, 35.
171. See OLIVIER DE SARDAN, supra note 47, at 31 (claiming slaves and nobles are considered two species). Not long ago in an interview with a group of village elders, I inquired about the nobles' practice of sometimes marrying slave women. They explained that wealthy Zarmas who could afford many wives but who did not wish to disobey the Koran's limit of four could marry slaves as the fifth and subsequent wives because the Koran restricts a man to marrying four "people," but as slaves are not people, the man can marry as many as he wishes. Interview with Bachirou Djibo, in Niamey, Republic of Niger (Feb. 19, 2004); Interview with elders, in Fandou Berri, Republic of Niger (Apr. 27, 2004) (verifying the "fifth wife" reasoning and complaining that the French made their lives difficult when they forbade the selling of slaves).
172. See PATTERSON, supra note 99, at 78.
173. Id.at 5.
174. See Igor Kopytoff & Suzanne Miers, African Slavery as an Institution of Marginality, in SLAVERY IN AFRICA, HISTORICAL AND ANTHROPOLOGICAL PERSPECTIVES 14-15 (Suzanne Miers & Igor Kopytoff, eds., 1977);
175. OLIVIER DE SARDAN, supra note 47, at 29, 33 (using the term "social bastards" to describe Zarma slaves).
176. PATTERSON, supra note 99, at 5.
177. Olivier de Sardan, supra note 54, at 161 (stating Zarma slaves are constantly reminded that they are physically and mentally different to justify their ongoing repression).
178. See also Kopytoff & Miers, supra note 102, at 38 (noting slaves constantly are reminded of their inferior status like bastards in medieval England);
179. id. at 2 (arguing the need for physical force often is obviated by masters' use of cultural symbols).
180. See OLIVIER DE SARDAN, supra note 47, at 35.
181. See Stoller, supra note 70, at 421. Perhaps arising out of the labor they are expected to perform as well as their different ethnic origins, slaves are also said to have fat necks, small and malformed ears, hard muscles, rough skin, gnarled fingers, and thick nails.
182. Olivier de Sardan, supra note 54, at 160.
183. Olivier de Sardan, supra note 54, at 160.
184. Id. at 161;
185. Olivier de Sardan, supra note 85, at 38.
186. Stoller, supra note 70, at 421. Rural Nigeriens' increasing embrace of Islam is having a complicated influence on traditional slavery, one we will only touch upon in this note. In certain respects, Islam acts to weaken traditional slavery. For example, as rural people embrace Islam, their deeply rooted traditional beliefs about ancestors' pacts with land spirits begin to lose their salience. This would tend to weaken an essential tenet of the ideology of Zarma slavery, described above. Also, Islam has a moderating effect on slavery. While the Koran acknowledges slavery, it forbids enslaving fellow Muslims and encourages manumission of those who convert to Islam. On the other hand, contemporary Islam can help perpetuate traditional slavery. Nobles employ Islam as a tool to reinforce the inferior status of horso by telling them that the Koran commands their obedience. The slaves, most of whom consider themselves Muslim and almost all of whom are uneducated, believe what they are told and further internalize their status. SLAVERY IN NIGER, supra note 50, at 6;
187. OLIVIER DE SARDAN, supra note 47, at 34.
188. See infra Part U.C.
189. It is beyond the scope of this article to attempt a definitive disentanglement of slavery, serfdom, and caste. Indeed, I have never seen it done. Probably the most accurate statement would be that these terms and the social categories they represent are variable and contested and that they blend into one another at the margins. In fact, some accounts indicate that those social categories were once considered to be very similar and that slavery was separated out as sui generis only when nineteenth century anti-slavery abolitionists strategically focused on eliminating chattel slavery. See Introduction, BEYOND SLAVERY supra note 79, at 6. There is no question that slavery in Niger and elsewhere shares characteristics with serfdom as it was practiced in medieval and early modern Europe and eighteenth and nineteenth century Russia.
190. See STEVEN L. HOCH, SERFDOM AND SOCIAL CONTROL IN RUSSIA 1-2 (1986) (arguing that serfdom and slavery share many traits and that serfs in Russia could be bought and sold by their lords). Commentators have noted that in some epochs the repression associated with serfdom was virtually indistinguishable from that of the harshest slavery.
191. Terence Emmons, Introduction to PETER A. ZAIONCHKOVSKY, THE ABOLITION OF SERFDOM IN RUSSIA vii (trans., Susan Wobst 1978). It is an interesting hypothetical question whether the most severe and overt forms of historical serfdom would have been covered by contemporary anti-slavery treaties and conventions, which were negotiated and drafted after such serfdom had disappeared in Europe. Given space constraints, we leave that question unresolved. It is, I believe, easier to distinguish Nigerien slavery from the concept of caste. Although the definition of caste varies, it typically applies to people who perform a specific skill such as weaving or metalwork, and who live in isolation from non-casted people.
192. See DAVID E. HUNTER & PHILLIP WHITTEN, ENCYCLOPEDIA OF ANTHROPOLOGY 63 (1976) (defining caste as "[a] hereditary, endogamous group of people (or a collection of such groups) bearing a common name and having the same traditional occupation");
193. R.M. DILLEY, ISLAMIC CASTE KNOWLEDGE PRACTICES AMONG HAALPULAAR'EN IN SENEGAL: BETWEEN MOSQUE AND TERMITE MOUND 6, 27-28, 46, 57-88 (2004) (discussing caste in Muslim West Africa in terms of common occupations such as artisans or musicians, distinguishing caste from slavery, and describing a social category similar to that of horso as distinct from caste because the former are directly under the control of their masters);
194. LEONARDO A. VILLALÓN, ISLAMIC SOCIETY AND STATE POWER IN SENEGAL: DISCIPLES AND CITIZENS IN FATICK 56 (1995) (describing Senegalese Wolof castes in terms of specific occupations and distinguishing between casted people and slaves). A recently published work describes the Malian social category of woloso, which is similar to Niger's horso.
195. GREGORY MANN, NATIVE SONS: WEST AFRICAN VETERANS AND FRANCE IN THE TWENTIETH CENTURY 6 (2006). The author distinguishes woloso from caste positions but declines to employ the word "slave" to describe its contemporary meaning, preferring to view it as a dynamic and contested social category the origins of which can be found in Malian slavery.
196. MANN, supra at 6-7.
197. See SLAVERY IN NIGER, supra note 50, at 60 (noting that Niger's horso have no proto-capitalist urban centers to migrate toward where they would have a realistic chance of finding wage-paying factory jobs).
198. Villalón, supra note 7, at 56;
199. Kelley, supra note 33, at 659-60;
200. Mission d'Analyse, supra note 8, at 24-27 (stating that Niger's citizens neither understand nor have access to the state legal system).
201. See supra notes 54-55 and accompanying text.
202. Because Niger was so bereft of exploitable resources, and because the French were determined to minimize the expense of their global colonial project, they departed in Niger from their "direct rule" philosophy and instead relied to a large extent on traditional leaders (many of whom they propped up and manipulated) to administer the territory. Kelley, supra note 33, at 651-52.
203. Mission d'Analyse, supra note 8, at 26.
204. See Kelley, supra note 33, at 658.
205. Kelley, supra note 5, at 120;
206. see Mission d'Analyse, supra note 8, at 6.
207. See Kelley, supra note 5, at 324-27 (describing Nigerien's use of quasi-Islamic oracles to resolve legal disputes);
208. Kelley, supra note 33, at 680-85 (describing the spiritual underpinnings of traditional Nigerien land law).
209. Villalón, supra note 7, at 61-62.
210. See Michel Chossudovsky, The Globalization of Poverty: Impacts Of IMP and World Bank Reforms 51 (1997) (describing the " conditionalities" that accompany aid packages).
211. See generally Niger Millennium Challenge Report 2007, supra note 19 (conditioning further aid in part on progress with law reform).
212. For an excellent summary of this transition period, see Villalón & Idrissa, supra note 2, at 27-46.
213. See, e.g., Mission d'Analyse, supra note 8, (title page) (indicating that an important law reform plan was developed in cooperation with Danish, German, and French experts). This paper does not include a detailed description of the exact mechanisms that led to Nigerien law reform and the precise roles that different Western institutions have played. When I asked Nigerien government officials and academics what the impetus was for their ambitious law reform project, they typically responded, as if it were perfectly self-evident, that it was happening because of pressure from the World Bank and Western donor countries.
214. See Interview with Oumarou Rabo Mainassara, Director of Study of Legislative Reform and Integration, Ministry of Justice, in Niamey, Niger (Nov. 23, 2003) (declaring it obvious that the World Bank and Western donor countries were behind the push for law reform in Niger).
215. The drafting of the Rural Code began in the 1980s before the latest wave of legal Westernization.
216. Villalón, supra note 7, at 50-55, 57, 59, 61-62.
217. See Mission d'Analyse, supra note 8, at 64 (discussing the need for a new Civil Procedure Code). Based on my own review of recent legislative activity, the lesser legislation includes laws governing the National Assembly, the decentralization of Niger's government, non-governmental organizations and domestic associations, magistrates, and the legal profession.
218. See supra Part I.B.
219. See supra notes 11-16 and accompanying text.
220. Id.
221. See id.
222. The Rural Code also attempts to clarify the rules governing herders' rights, agriculture cooperatives, firewood collection, mining, and access to other natural resources. See Camilla Toulmin & Julian Quan, Registering Customary Rights, in EVOLVING LAND RIGHTS, POLICY AND TENURE IN AFRICA, supra note 18, at 207, 213-15 (describing the objectives that the Rural Code aims to address). The discussion in this article focuses on the Code's treatment of agricultural land use regulation.
223. After a recent administrative reorganization, Niger is divided into 8 Regions, 36 Departments, and 265 communes. See Niger a l'Heure de la Décentralisation, CONSTRUIRE L'AFRIQUE (June -Aug. 2004), at 3. In theory, each of these divisions will have its own Land Commission.
224. Toulmin & Quan, supra note 130, at 217. The process of creating the local land commissions has been under way for more than a decade but thus far only a few have been established. The donor community, however, has made the establishments of the commissions a top priority.
225. See Niger Millennium Challenge Report 2007, supra note 19, at 29.
226. 133 Décret No. 9-367/PRN/MAG/E du 2 Octobre 1997, Article 22.
227. Toulmin & Quan, supra note 130, at 216;
228. see also Decret No. 97-367/PRN/ MAG/E du 2 Octobre 1997 (laying down the detailed procedures by which land rights will be investigated and verified before being inscribed in a dossier rural).
229. Toulmin & Quan, supra note 130, at 215-16.
230. See Interview with Abdoul Karim Mamalo, Permanent Secretary of the Rural Code, in Niamey, Republic of Niger (Nov. 10, 2003);
231. République du Niger, Ministère de l'Agriculture et de l'Elevage, Comite National du Code Rural, CENT (100) QUESTIONS ET RÉPONSES POUR COMPRENDRE LE CODE RURAL 19-20, 22 (Aug. 1999) (implying that the sole role for "custom" is as a reference point or piece of evidence in the Land Commission's quest to determine who owns which plot of land).
232. LUND, supra note 31, at 4.
233. See RÉPUBLIQUE DU NIGER, LA CONSTITUTION DU 18 JUILLET 1999 (1999) [hereinafter NIGER CONSTITUTION];
234. Villalon & Idrissa, supra note 2, at 32-33 (noting the entire political and legal transition in Niger was rooted firmly in Western, especially French, tradition and that many of Africa's reformed constitutions look the same because they were drafted by the same European legal experts).
235. Supra note 138, NIGER CONSTITUTION, art. 28.
236. Id. art. 4.
237. Id. art. 99.
238. Id. arts. 100 & 101.
239. Id. Preamble. Article 132 of the Constitution states that properly ratified treaties have the force of law and take precedence over contrary existing domestic laws. Niger has ratified all of the relevant international conventions concerning slavery and forced labor, most notably the Slavery, Servitude, Forced Labor and Similar Institutions and Practices Convention of 1926 (the Slavery Convention of 1926), the 1948 Universal Declaration of Human Rights, and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery ("the Supplementary Convention") of 1956, and the African Charter on Human and Peoples' Rights of 1981.
240. See RÉSEAU DES JOURNALISTES POUR LES DROITS DE L'HOMME, RECUEIL DES INSTRUMENTS JURIDIQUES INTERNATIONAUX ET RÉGIONAUX AFRICAINS RELATIFS AUX DROITS HUMAINS RATIFIES PAR LE NIGER 125, 130 (2003).
241. Id. art. 12 (stating "Nul sera soumis ... a l'esclavage ni a des services ou traitements cruel, inhumains ou dégradants.").
242. See generally Loi no. 2003-25 du 13 juin 2003, modifiant la loi no 61-27 du 15 juillet 1961, portant institution de la code pénal, Journal Officiel de la République du Niger, Dec. 15, 2003, bk. II, tit. Ill, ch. VI, art. 270.1 et. seq. [hereinafter Loi no. 2003-25].
243. Id. at bk. II, tit. III, ch. VI, art. 270.2.
244. Id. bk. II, tit. Ill, ch. VI, art. 270.3.
245. According to the Slavery Convention of 1926, "The state or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." Slavery Convention on 1926, League of Nations Treaty Series, Vol 60, p. 253, Article I(I).
246. Loi no. 2003-25, supra note 145, at bk. II, tit. III, ch. VI, art. 270.1.
247. The clause elaborates on this definition and makes clear that women compelled to engage in sexual relations with their masters, and children compelled to work for their masters, are included. It is worth noting that treating someone as a slave includes the act by a master of receiving tribute, which presumably includes the laabu albarka, described in supra note 88; however, the tribute must be because of the property relationship described in the fundamental definition of article 270.1.
248. See Loi no. 2003-25, supra note 145, at bk. II, tit. Ill, ch. VI, art. 270.3. Niger's civil law defines property as the right to enjoy and dispose of things in the most absolute manner, provided one does not make use of the object in a way prohibited by laws or regulations.
249. See Alkache Alhada, Les Droits Civils et Politiques, in LES DROITS DE L'HOMME AU NIGER: THEORIES ET RÉALITÉS 189 (Theodore Holo ed., 2001) (explaining the definition of private property contained in Niger's civil code).
250. OLIVIER DE SARDAN, supra note 47, at 27.
251. See James L. Watson, Introduction, Slavery as an Institution: Open and Closed Systems, in ASIAN AND AFRICAN SYSTEMS OF SLAVERY 2-3 (James L. Watson ed., 1980) (stating the English word "slave" conjures historical associations that do not apply in Africa).
252. See supra Part I.C.1.
253. See LOVEJOY, supra note 48, at 8 (arguing American slavery was unique in that its raison d'être was the production of staple commodities);
254. Kopytoff & Miers, supra note 102, at 3 (arguing that the English word "slave" carries false connotations of plantations and chattel relationships when applied to African slavery).
255. But see supra note 79;
256. Introduction, BEYOND SLAVERY, supra note 79, at 5-6 (criticizing Kopytoff for falsely essentializing the African experience of slavery).
257. See supra note 148.
258. See PATTERSON, supra note 99, at 30 (arguing further that the Romans' motivation for inventing the notion of dominium was to establish cultural and legal institutions to control its large slave population).
259. Id.
260. Id. at 28. (noting that "property is not one of the constitutive elements of slavery, though it is of course an important concept in the discussion of slavery.").
261. It should be noted that many contemporary legal scholars would dispute that the essence of property in Western culture and law is a person's right to absolute control of things. Some conceptualize property as an expression of personhood and personal identity. See, e.g., Margret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982). Others describe property as containing both legal and social attributes, and they acknowledge that its social attributes - for example, community based norms about the use of property - are sometimes more powerful and efficient than legal rules.
262. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991);
263. JAMES M. ACHESON, THE LOBSTER GANGS OF MAINE (1988).
264. One recent and particularly illuminating scholarly work stated that "[plroperty is so heavily populated with common sense meanings as to be analytically useless." VERDERY,supra note 11. However, in spite of the existence of these nuanced theories of property, the prevailing Western understanding, one that acts as the foundation for most Western legal regimes,
265. see Jedediah Purdy, People as Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to Property, 56 DUKE L.J. 1047, 1051-52 (2007), is that property grants people inviolable rights in things as a means of efficiently allocating societal resources.
266. See generally de Soto, supra note 11;
267. Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON 19 (1960);
268. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 32-34 (6th ed. 2003). More to the point for the purposes of this article, law reformers and development experts in Niger and across the developing world understand their mission as transforming property from an institution grounded in personhood and social relationships to one based on individual ownership and law.
269. See Niger Millennium Challenge Report 2007, supra note 19.
270. PATTERSON, supra note 99, at 27 (arguing that individuals' status in nonWestern society differs only in the balance between their property claims in others and others' claims in them).
271. Id.
272. Id. at 24;
273. Kopytoff & Miers, supra note 102, at 8-10.
274. Kopytoff & Miers, supra note 102, at 8-10 (pointing to adoption into clans as the equivalent of a property transaction).
275. Id.
276. See PATTERSON, supra note 99, at 27 (arguing that most non-Western slave holding societies had no concept of the "free" person and no slave/non-slave polarity).
277. See id. at 28;
278. Kopytoff & Miers, supra note 102, at 17.
279. PATTERSON, supra note 99, at 28. I do not contend that contemporary horso have no other wish than to be fully connected to Zarma society.
280. See Frederick Cooper, Conditions Analogous to Slavery: Imperialism and Free Labor Ideology in Africa, in BEYOND SLAVERY, supra note 79, at 126 (noting that subjugated classes of people in African societies constantly contest and negotiate their status and that it is an oversimplification to contend that they wish only to "belong"). From my western perspective, it seems sensible to predict that, given the choice, Niger's horso would opt for complete social equality and access to resources over connectedness. However, I cannot say with certainty what they would choose if circumstances were different. What I am quite certain of, based on my fieldwork, is that horsos' most pressing need today is for agricultural land, and that many or most of them believe that closer connection to noble lineages is their most certain route to securing it.
281. This paper describes only three horso communities in detail; however, those three can be taken as representative of a larger sample. In my own fieldwork I have encountered, directly or second-hand, approximately 20 horso communities that are being affected by legal westernization. In addition, Nigerien human rights organizations have documented the plight of many more. See, e.g., supra note 20.
282. See supra Part II.C.
283. See supra Part I.C.2.
284. Interview with Saabu Dey village chief and group of elders, in Saabu Dey, Republic of Niger (Dec. 5, 2003).
285. See id. (stating the village was founded about 100 years ago). Compare Interview with Kare village elders, in Kare, Republic of Niger (Dec. 12, 2003) (stating the village was founded about 150 years ago).
286. See supra note 84.
287. Neutral observers attribute the split, at least in part, to babize, a word that translates approximately to "sibling rivalry" and a concept that is deeply engrained in Zarma culture. See Interview with Saabu Dey village chief and group of elders (Dec. 5, 2003), supra note 169 (discussing babize).
288. Id. When I asked how the Kare faction chose the name for the new village, they indicated that it was a transliteration of the French word carré, which they said means "neighborhood," but in fact generally refers to a small plot of land such as a vegetable garden (carré de légume) or in some cases a house lot. Interview with Kare village elders (Dec. 12, 2003),
289. supra note 170.
290. Interview with Saabu Dey village chief and group of elders (Dec. 5, 2003), supra note 169.
291. Id.
292. Id.
293. Id.
294. See Kelley, supra note 33, at 663 (telling the story of another village's founding that begins with a warrior capturing slaves to dig the first well);
295. Olivier de Sardan, supra note 47, at 89 (discussing the symbolic importance of well digging in Zarma culture). Land typically was parceled out to village founders by designating the well as the center point of the village and then tracing pie shapes outward from it, one slice for each founder.
296. See Interview with Saabu Dey village chief and group of elders (Dec. 5, 2003),
297. supra note 169.
298. The Saabu Dey chief estimates that their present well is sixty-five meters deep. Interview with Saabu Dey village chief and group of elders (Dec. 5, 2003), supra note 169.
299. The entire story of Antwa is recounted in Interview with Saabu Dey village chief and group of elders (Dec. 5, 2003), supra note 169.
300. See supra note 88.
301. Interview with Kare village elders (Dec. 12, 2003), supra note 170.
302. Id. The Kare faction further maintains that it is ridiculous to claim that any slave could actually control land. Even a manumitted slave would have to borrow land if he wished to continue cultivating in the village.
303. Id.
304. Id.
305. See supra notes 177-79 and accompanying text.
306. See infra note 193 and accompanying text; Interview with Moussa Hama (village chief) and group of elders, in Tchida Mayna, Republic of Niger (Feb. 26, 2004) (explaining that slaves' control of land is a result of an alliance with a powerful noble).
307. For a fascinating and readable work on interpreting African cultural narratives, see LUISE WHITE, SPEAKING WITH VAMPIRES, RUMOR AND HISTORY IN COLONIAL AFRICA (2000).
308. See OLIVIER DE SARDAN, supra note 85, at 34 (stating that in the modern era there are whole villages of slaves that belonging to a particular chief).
309. Interview with Hassane Hamani Kangueye, in Niamey, Republic of Niger (Oct. 27, 2003) (stating the village was founded in 1946);
310. Interview with Nouhou Sayni, in Gassangourni, Republic of Niger (Oct. 26, 2003) (stating the village was founded in 1948).
311. Interview with large group of village elders, in Gunti Kwara, Republic of Niger (Dec. 3, 2003). It is not clear why they left their natal villages, nor is it exactly clear who their master was. See Interview with Moussa Hama, in Tchida Mayna, Republic of Niger (Jan. 14, 2004).
312. See OLIVIER DE SARDAN, supra note 47, at 52 (discussing the symbiotic relationship between self-standing slave communities and their masters).
313. The chef de canton's relationship with the horso is unclear. The horsos' contemporary descendants imply that he was their master. Others maintain that the chef did not control the horso but was kindly disposed toward them because he had taken a concubine from the horso family. See Interview with Mousa Hama (Jan. 14, 2004), supra note 191.
314. Interview with large group of village elders (Dec. 3, 2003), supra note 191. This story is plausible. Based on elders' accounts I have heard over the years, the Zarma Plateau, where all of these villages are located, was a comparatively dry and barren area that was used until the mid-nineteenth century primarily as hunting grounds. The ancestor who dug the well, Gunti, may have used this spot as a hunting camp. According to the Gunti Kwara informants, the landscape was completely wild when they arrived there.
315. See supra note 88.
316. Interview with large group of village elders (Dec. 3, 2003), supra note 191.
317. Because Gunti Kwara is populated by horso, the government considers it a hameau (hamlet) rather than a true village. This means that although the village has a leader who was chosen by acclamation, he is not accorded the privileges and responsibilities of a village chief. It also means that Gunti Kwara is not eligible to receive government services such as elementary schools, medical dispensaries, or water pumps. As a result, its residents are even less educated and even more vulnerable to poverty and disease than Nigeriens who live in officially designated villages.
318. Interview with large group of village elders (Dec. 3, 2003), supra note 191.
319. Id.
320. See Interview with Nouhou Sayni (Oct. 26, 2003), supra note 190 (telling Gassangourni's side); Interview with large group of village elders (Dec. 3, 2003),
321. supra note 191 (telling Gunti Kwara's side).
322. See Interview with Nouhou Sayni (Oct. 26, 2003), supra note 190 (referring to the ongoing legal process).
323. Gassangourni, though an isolated rural village, is unusual in that - for historical reasons we will not explore - it has substantial, ongoing ties to educated and powerful elites in the capital. One of the village chiefs brothers is highly placed in a telecommunications company in Niamey and a nephew who lives in Niamey is a former huissier de justice who has connections to and understands the complexities of the state legal system. Due to these connections, the village is more comfortable operating in the urban milieu as well as more aware than its neighbors about the land tenure and slavery law reforms emanating from the capital.
324. See Interview with Ali Adamou, in Gunti Kwara, Republic of Niger (Feb. 5, 2004) (a leader in Gunti Kwara complaining that they are at great disadvantage in their legal dispute with Gassangourni because the latter has educated individuals attached to the village and influence with powerful elites in Niamey).
325. See Kelley, supra note 33, at 668 (explaining that both cultural norms and practical considerations deter rural Nigeriens from appealing their disputes to the state legal system);
326. Mission d'Analyse, supra note 8, at 14-15, 25 (explaining there are few lawyers in the country and most people do not understand their role).
327. Interview with Hassane Hamani Kangueye, in Niamey, Republic of Niger (Dec. 27, 2003).
328. See Interview with Issa Aly Hassan, in Niamey, Republic of Niger (Jan. 26, 2004). The nobles' claim that they have no responsibility for the Gunti Kwara horso requires a delicate parsing of history on their part. They acknowledge that the horso of Gassangourni historically paid them the laabu albarka, as custom would require a horso to pay his master, but claim that the true master of the horso was the chef de canton who installed the horso there in the 1940s, not they. A logical weakness in their argument is that their claim of rights in the land is based partly on their being descendants of that chef de canton, yet they disclaim rights in responsibilities in the horso who descended from that chef.
329. See Interview with Nouhou Sayni, in Gassangourni, Republic of Niger (Oct. 26, 2003),
330. supra note 190 (transcribing and translating written decisions by Niamey tribunals that contain no mention of slavery).
331. See supra notes 107-09.
332. See supra note 201.
333. See supra notes 201-03 and accompanying text.
334. This position combines the duties of sheriff, such as serving process and delivering summons, and bailiff, such as helping judges administer the courtroom. See CATHERINE ELLIOTT ET AL., FRENCH LEGAL SYSTEM AND LEGAL LANGUAGE 104 (1998).
335. Interview with Issa Aly Hassan, in Niamey, Republic of Niger (Nov. 4, 2003).
336. See id. (saying land registration is necessary because land is growing scarce and "you have to think of the future").
337. Id.
338. The story of Tchida Mayna's conflict with nobles from Kollo Djogonom is drawn from Interview with Moussa Hama, his son and elders, in Tchida Mayna, Republic of Niger (Feb. 26, 2004).
339. See supra notes 68-69 and accompanying text.
340. Human rights organizations in Niger report instances of violent, repressive slavery among the Tuareg people of northern Niger. See, e.g., Iday Baraou, Niger 'Slave' Flees Castration, BBC NEWS WORLD EDITION, Sept. 4, 2002 (transcript available at http://news.bbc.co.uk/2/hi/africa/2236499.stm);
341. Robyn Dixon, Fear, Tradition Hold Niger's Slaves Captive Without Bonds, CHICAGO TRIBUNE, Sept. 25, 2005, at NEWS section, p. 6 (reporting harsh conditions among Tuareg slaves in Niger).
342. See supra Part II.B.
343. It is worth noting that the Government of Niger could take an intermediate step toward protecting the land tenure rights of horso by simply applying the Rural Code as it is written. As described in Part II.B., above, the new law permits individuals and groups to register their non-ownership property rights. If horso were encouraged or at least permitted to register their customary access rights it should, at least in principle, retard nobles' attempts to convert their customary rights to fee simple ownership.
344. See CORINNE A. A. PACKER, USING HUMAN RIGHTS TO CHANGE TRADITION: TRADITIONAL PRACTICES HARMFUL TO WOMEN'S REPRODUCTIVE HEALTH IN SUBSAHARAN AFRICA 11 (2003) (offering examples in Africa of new laws being accepted when they were introduced and explained using culturally appropriate symbols and ceremonies);
345. Abdullahi Ahmed An-Na'im, Problems of Universal Cultural Legitimacy for Human Rights, in HUMAN RIGHTS IN AFRICA 366 (Abdullahi Ahmed An-Na'im & Francis M. Deng eds., 1990) (arguing law reformers in non-Western cultures should use the resources of their cultural traditions to explain the laws in ways perceived to be legitimate by the members of that culture).
346. See supra note 109 and accompanying text.
347. It is conceivable that with significant foreign assistance, nobles could be compensated in some fashion for land turned over irrevocably to their horso. After all, agricultural land in Niger, though increasingly scarce, is still comparatively cheap. Timidria, Niger's leading anti-slavery human rights organization, has successfully conducted pilot slave resettlement projects where, using money raised from international nongovernmental organizations, they purchased land and basic tools for slaves manumitted from their Tuareg masters. See generally Timidria & UNICEF, Projet Accueil et Réinsertion des Victimes d'Esclavage Dans les Arrondissements de Abalak et Tchintabaraden (June 2002) (a report laying out plans to resettle newly emancipated Tuareg slaves in north-central Niger) (copy on file with author).
348. See Kelley, supra note 5, at 143 (arguing that Niger's new, Western criminal procedure laws will be words on paper unless legitimized in culturally familiar terms).
349. See supra notes 6-9 and accompanying text.
350. See John M. Conley & William M. O'Barr, Crime and Custom in Corporate Society: A Cultural Perspective on Corporate Misconduct, 60 LAW & CONTEMP PROBS 5, 6 (1997) (arguing that those who would understand legal problems need to view them as cultural problems).
351. See PACKER, supra note 218, at 108, 170 (arguing that culture is dynamic and subject to change, and that legislation should come only after public sentiment has evolved);
352. OLIVIER DE SARDAN, supra note 63, at 150-51 (arguing the only way to avoid cultural resistance to development goals is to explain them from the cultural perspective of the users).
353. GOLUB, supra note 21, at 25.
354. OLIVIER DE SARDAN, supra note 63, at 214-15 (arguing for the necessity of social science research to bolster development efforts and calling for a new profession that includes the skills of social science researchers and international development experts).
355. There is a plethora of anthropologists and other social scientists who understand Nigerien history and culture. Many from Niger, France and the United States have been cited in this article. Sadly, there is no evidence that their wisdom was sought out by those who would reform Niger's laws.
356. See id. at 170-172 (arguing that effective development depends on the effective translation of concepts and mediation between diverging systems of meaning).
357. See supra note 121 and accompanying text.
358. See PACKER, supra note 218, at 9 (arguing that consciousness raising is a crucial first step in introducing Western laws and cultural values);
359. An-Na'Im, supra note 218, at 355-56 (calling for a process of closely analyzing the incompatibility of Western human rights laws and differing cultural practices and beliefs to better manage the process of reconciling them).
360. See Purdy, supra note 157, at 1051-52 (stating that property as an individual resource has been an important concept since Aristotle and central to Anglo-American legal thought for centuries).