APPLES TO ORANGES:EPISTEMOLOGICAL DISSONANCE IN

APPLES TO ORANGES:EPISTEMOLOGICAL DISSONANCE IN THE HUMAN RIGHTS CASE HADIJATOU MANI V.NIGER Thomas Kelley* I. INTRODUCTION In 2008, Hadijatou Mani, 1 a twenty-four year-old 2 uneducated woman from the hinterlands of the Republic of Niger, 3 successfully sued Niger in the Community Court of Justice of the Economic Community of West African States ( the ECOWAS Court ) 4 for failing to protect her from slavery. 5 As the facts of the case showed, and as Part II of this paper will discuss in detail, Hadijatou was purchased at the age of twelve and was held in servitude for ten years before her gumption and a * Paul B. Eaton Distinguished Professor of Law, University of North Carolina at Chapel Hill School of Law. Thanks to my friend and colleague, Bachir Tidiani. Thanks also to Julie Grimley, Brett Neve, and Andrew Arnold for their research assistance. 1 Some published reports name the plaintiff as Hadijatou Mani, while others refer to her as Adidjatou Mani Koraou. Compare West Africa Slavery Still Widespread, BBC NEWS, http://news.bbc.co.uk/2/hi/africa/7693397.stm (last updated Oct. 27, 2008, 4:46 PM) (referring to her as Hadijatou Mani), with Boureima Hama, Woman Wins Case Against Niger for Slavery, SYDNEY MORNING HERALD (Oct. 28, 2008, 3:09 AM), http://news.smh.com.au/ world/woman-wins-case-against-niger-for-slavery-20081028-59vd.html (referring to her as Adidjatou Mani Koraou). For ease and consistency, this paper will refer to the woman as Hadijatou, and will refer to the various legal actions with variants of the Mani case. 2 Hama, supra note 1. 3 See West Africa Slavery Still Widespread, supra note 1. 4 The Economic Community of West African States ( ECOWAS ) was established in 1975 with a primary mission of improving economic performance and living standards on the African Continent. Jean Allain, Hadijatou Mani Koraou v. Republic of Niger, 103 AM. J. INT L L. 311, 312 (2009) ( The ECOWAS Court emerged as a result of a 1991 Protocol... [naming it] the principal legal organ of the Community. Composed of seven members, the [ECOWAS] Court was originally... given jurisdiction to hear disputes between member states and the executive organ of ECOWAS. However, under the 1993 Revised Treaty, the ECOWAS Court gained a constitutional mandate to consider issues of human rights.... in accordance with the provisions of the African Charter on Human and Peoples Rights. ). In 2005, ECOWAS adopted a Supplementary Protocol that explicitly empowered the Court to hear human rights cases. Id. 5 West Africa Slavery Still Widespread, supra note 1. 311

312 Q U I N N I P I A C L A W R E V I E W [Vol. 32:311 dose of good luck 6 led to her manumission and, after years of legal and personal struggles, freedom. 7 Although Hadijatou s legal action was procedurally and substantively complicated, 8 it turned on the seemingly simple question of whether she was her purchaser s wife or his slave. 9 The ECOWAS Court determined that she was his slave and ordered Niger to declare her free and pay her damages in the amount of $19,000. 10 The ECOWAS Court s decision was significant for several reasons. Above all, it meant liberation, self-determination, and a financial nest egg for a woman who had suffered years of degrading treatment, including unwanted sexual congress with the man who had purchased her. 11 The case was also a triumph for the nongovernmental organizations (NGOs) that played significant roles in helping Hadijatou in her flight from servitude and arguing her case before Nigerien courts and, later, the ECOWAS Court. 12 Human Rights NGOs based in Africa and in Europe struggle to convince the public that diverse forms of slavery, including chattel slavery, still exist and must be eradicated. 13 Hadijatou s case, which was covered extensively by the international press, 14 brought legitimacy and momentum to their cause. 15 In addition, for the broader community of human rights lawyers and advocates, the case illustrated the increasing salience of universal human rights standards and highlighted the importance and effectiveness of regional 6 See ANTI-SLAVERY, BRIEFING PAPER: HADIJATOU MANI KORAOU V. NIGER AT THE ECOWAS COURT OF JUSTICE 1, available at http://www.antislavery.org/includes/ documents/cm_docs/2008/n/niger_case_at_ecowas.pdf (last visited Jan. 4, 2014) (explaining that a Nigerien anti-slavery organization happened to be conducting awareness raising meetings near her purchaser s home when the organization learned of her plight). 7 See Hadijatou Mani v Niger, INTERIGHTS, http://www.interights.org/niger-slavery (last visited Jan. 4, 2014) [hereinafter INTERIGHTS] (providing an overview of the facts of the case). 8 See infra Part II. 9 See infra Part IV. 10 INTERIGHTS, supra note 7. 11 See id. I have employed the euphemism unwanted sexual congress here, knowing that, from the perspective of American law, a more accurate term would be sexual assault or rape. As the paper will discuss, in many parts of Niger it is a recent notion that a man does not have the right to have sex, even unconsented sex, with a woman in Hadijatou s social category. See infra Part IV. 12 See INTERIGHTS, supra note 7. 13 See id. (quoting the president of a Nigerien human rights organization as saying: For 17 years we have been working towards bringing slavery to the attention of the authorities ). 14 See id. (reporting that the Mani case was covered by 300 international news outlets). 15 See id.

2014] A P P L E S T O O R A N G E S 313 human rights bodies, 16 for not only did the ECOWAS Court conduct a full legal proceeding and render a forceful decision in Hadijatou s favor, 17 but the sovereign defendant, Niger, honored the judgment, allowing its ongoing domestic legal proceedings to be preempted and paying damages and costs as ordered. 18 While those outcomes are worthy of celebration and commentary, they are not the focus of this paper. Instead, this paper will examine Hadijatou s experience in escaping from servitude from the perspective of comparative law, shedding light on two ongoing debates within that field. First, some comparativists decry that their discipline is stuck in the country and western tradition, focusing its energies on European and North American laws and legal traditions. 19 When it does deign to turn its gaze to non-western legal traditions, it usually limits the inquiry to laws that emanate from states, ignores non-state norms and customs, and usually aims to reveal or encourage convergence between legal traditions that will permit the spread of market-driven capitalism and democracy. 20 Critics of the country and western tradition abhor that comparative law doggedly labors toward the goal of building consensus and universalization rather than acknowledging that rich legal diversity abounds. 21 These critics hold that there is intrinsic value in understanding and describing legal conceptions that are different from 16 INTERIGHTS, supra note 7 (noting that the Mani decision heralds a new role for regional courts in deciding human rights claims). 17 See generally Dame Hadijatou Mani Koraou v. La République du Niger, No. ECW/CCJ/JUD/06/08 (La Cour de Justice de la Communauté Économique Des Etats de l Afrique de l Ouest du 27 Octubre 2008), translated in Hadijatou Mani Koraou v. The Republic of Niger, No. ECW/CCJ/JUD/06/08 (ECOWAS Community Court of Justice, Oct. 27, 2008) (English language translation of the final judgment of the ECOWAS Community Court of Justice), available at http://www.refworld.org/docid/496b41fa2.html [hereinafter CCJ Judgment]. But see Allain, supra note 4, at 315 16 (criticizing the ECOWAS Court s legal reasoning). 18 INTERIGHTS, supra note 7. 19 John Gillespie, Towards a Discursive Analysis of Legal Transfers into Developing East Asia, 40 N.Y.U. J. INT L L. & POL. 657, 658 (2008). 20 See WERNER MENSKI, COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS OF ASIA AND AFRICA 5 (Cambridge Univ. Press, 2d ed. 2006) (arguing that comparative law should move toward tolerance of diversity, not forced uniformity). 21 See id. at 38, 40 42 (quoting Cotterrell and employing the term universalization ); Annelise Riles, Introduction: The Projects of Comparison, in RETHINKING THE MASTERS OF COMPARATIVE LAW 1, 17 18 (Annelise Riles ed., 2001) (commenting on comparative law s search for similarities between divergent legal systems).

314 Q U I N N I P I A C L A W R E V I E W [Vol. 32:311 our own. 22 They add that the differences can only be appreciated and described by skilled cultural navigators 23 who resist the desire to draw parallels and to equate concepts between legal systems simplistically. 24 This paper will respond by offering a thick description 25 of the legal traditions and formal laws that were invoked by the opposing sides in the Mani case, and by showing that they were different and, in important respects, incompatible. One side argued from a traditional Nigerien legal and cultural perspective and claimed that Hadijatou was her purchaser s wife. 26 The other side Hadijatou s side argued from an essentially Western 27 human rights perspective that Hadijatou had been his slave. 28 By delving into the historical, religious, and cultural backgrounds of the parties, the paper will illustrate that the two sides epistemological and legal assumptions were fundamentally different, and that their lawyers were employing the terms slave and wife to mean different things. The end result was that the parties to the Mani case were often talking past one other. An additional aim of this paper will be to weigh in on comparative law s legal transplant 29 debate. When comparativists diverge from 22 See MENSKI, supra note 20, at 22 24. 23 Id. at 63 (quoting Roger Ballard). 24 Id. at 67. 25 By thick description, I allude generally to the idea, borrowed from anthropology, that in order to understand human behavior, one must do more than directly observe that behavior; one also must observe and understand the context in which that behavior takes place. See generally CLIFFORD GEERTZ, Thick Description: Toward an Interpretive Theory of Culture, in THE INTERPRETATION OF CULTURES 3, 5 10 (1973) (citing Gilbert Ryle). 26 See CCJ Judgment, supra note 17. 27 I employ the term Western in this context with full knowledge that some scholars, including my colleague Holning Lau, object to its use in human rights and other legal discourses partly on grounds that it implicitly attributes the creation and development of human rights norms exclusively to European and related legal systems. See generally Holning Lau, The Language of Westernization in Legal Commentary, 61 AM. J.COMP. L.507, 507 (2013). As a later section of this paper will demonstrate, however, I believe that the human rights norms discussed in this paper particularly the definition of slavery as being one human exercising ownership over another evolved specifically out of Europe and the New World s experience with chattel slavery, and I am comfortable referring to that history as Western. See infra Part IV (discussing legal definitions of slavery). 28 See CCJ Judgment, supra note 17. 29 As seems inevitable in scholarly debates, the nomenclature of legal transplant is contested. Some embrace the term legal transplant, while others prefer legal transfer, legal adaptation, legal penetration, or legal irritant. For a summary of the linguistic tussle, see David Nelken, Towards a Sociology of Legal Adaptation, in ADAPTING LEGAL CULTURES 7, 15 19 (David Nelken & Johannes Feest eds., 2001).

2014] A P P L E S T O O R A N G E S 315 their country and western tradition to focus on laws and legal systems of non-western countries, their aim is often to chart a course that will facilitate the export of Western law to poorer nations. 30 Their assumption shared by law and development practitioners and scholars is that the exportation of Western law will help create the conditions for economic growth, democracy, and political stability in regions where those qualities are scarce. 31 The question of how to accomplish this transfer of law and indeed, whether it is possible at all has been referred to in comparative law as the legal transplant problem. 32 Comparativists at one extreme portray law as a readily transferable technology that, with a few minor adjustments, can be made to function wherever it is introduced in ways that will give rise to predictable and positive outcomes. 33 At the other extreme, scholars insist that law is inextricably intertwined with and reflective of the particular history, culture, and society in which it has evolved, and can never be effectively transplanted from one society to another. 34 This paper will rely on a careful, contextual analysis of Hadijatou s experience and the Mani case to illustrate that the socio-cultural context comparative legal scholars have it mostly right, and that the law as technology scholars along with the legions of contemporary law and development practitioners who make a living transplanting Western law to developing countries 35 have it mostly wrong. 30 See MENSKI, supra note 20, at 37 38 (claiming that comparative law often is in the service of trade deals and development programmes and that the motive behind comparative law is universalization); see also Yves Dezalay & Bryant Garth, The Import and Export of Law and Legal Institutions: International Strategies in National Palace Wars, in ADAPTING LEGAL CULTURES, supra note 29, at 241, 241 (arguing that the new law and development movement aims at a legal convergence). 31 See Thomas Kelley, Unintended Consequences of Legal Westernization in Niger: Harming Contemporary Slaves by Reconceptualizing Property, 56 AM. J. COMP. L. 999, 1000 03 (2008). 32 See Michal S. Gal, The Cut and Paste of Article 82 of the EC Treaty in Israel: Conditions for a Successful Transplant, 9 EUR. J.L.REFORM 467, 467 74 (2007) (discussing the basic arguments surrounding legal transplants ); see also Pierre Legrand, The Impossibility of Legal Transplants, 4 MAASTRICHT J. EUR. &COMP. L.111, 111 (1997) (explaining the idea of legal transplants and critiquing them as impossible). 33 See generally Alan Watson, Comparative Law and Legal Change, 37 CAMBRIDGE L.J. 313, 313 (1978) ( [T]he two most startling... characteristics of legal rules are the apparent ease with which they can be transplanted from one system or society to another, and their capacity for long life. ). 34 See generally Legrand, supra note 32, at 114. 35 See Kelley, supra note 31, at 1000 (referring to successive waves of legal experts who have attempted to transplant Western laws to Niger and elsewhere).

316 Q U I N N I P I A C L A W R E V I E W [Vol. 32:311 Prior to the Mani case, anti-slavery laws recently had been introduced to Niger from the United States and Europe. 36 These laws had evolved out of the West s particular historical and cultural experiences with slavery, experiences that were fundamentally different than Niger s. 37 While the application of those Western slavery laws has led to laudable results, including freedom for Hadijatou, it also has sown confusion among those caught in the rapid transition. A careful examination of the Mani case and the confusion it caused belies the assertion that law is a technology that can be easily transplanted from one society to another, and illustrates that law is inextricably embedded within and reflective of the society and culture in which it develops. In pursuit of these arguments, Part II of this paper will offer a summary of the Mani case and its surrounding facts as revealed mostly in legal pleadings and contemporaneous French and English language news reports. Part III will introduce some useful theory: Michel Foucault s notion of the episteme, comparative law s legal transplant debate, and legal anthropology s concept of legal pluralism. Part IV will examine the Mani case through the lens of those theoretical constructs, offer a thick description of the parties to the Mani case including their historical and cultural contexts, and reveal that the legal battle they fought was far more complicated, and in some respects less satisfying, than news accounts and the final judicial opinion might suggest. Part V will conclude by describing what the Mani case means for comparative law and by making a plea that lawyers, legal scholars, and human right proponents acknowledge, embrace, and grapple with the complexity that arises when laws and legal concepts, including human rights laws, are transplanted from one historical and cultural setting to another. II. HADIJATOU S STORY AND THE LAWSUITS Parts IV and V of this paper will argue that facts and law are socially and culturally constructed, that the definitions and details of 36 See id. at 1022 23 (describing the anti-slavery laws Niger adopted in 2003); see also West Africa Slavery Still Widespread, supra note 1 (quoting Igulias Weila, the head of Timidria, a Nigerien human rights organization, as saying: The [anti-slavery] law was only passed for Westerners. It was a charm-offensive aimed at those who were asking why slavery had not been made illegal ). 37 See Kelley, supra note 31, at 1022 25 (describing the difference between Western and Nigerien slavery).

2014] A P P L E S T O O R A N G E S 317 both depend on one s epistemological perspective, and that the events of the Mani case look very different depending on whether one is examining them from a Western or traditional Nigerien perspective. Before braving that conceptual thicket, however, this section lays out Hadijatou s experience as described in Western news, NGO accounts, and the written record of the various lawsuits to which she was party. 38 A. The Facts Hadijatou was born into a Nigerien ethnic subclass known as Bouzou. 39 The term Bouzou comes from the language of the Hausa people and is a catch-all social category describing those who were, or whose ancestors were, captured and enslaved by the Tuareg people. 40 Hadijatou s mother was owned 41 by a Hausa man and, although the facts are unclear, it appears that her mother s master sold or gave Hadijatou to his friend, a Hausa customary chief, when she was a child. 42 In 1996, when Hadijatou was twelve years-old, the customary chief sold her to a wealthy forty-six year-old Hausa man, El Hadj Souleymane Naroua ( Naroua ), for the sum of 240,000 CFA, 43 or approximately $400. 44 38 In spite of dogged efforts, I succeeded in obtaining only some of the written documents associated with these legal actions and most of them pertain to the proceeding in the ECOWAS Court. I obtained Hadijatou s Requête (a French term that translates roughly to Petition or Request) that summarizes her argument for the ECOWAS Court, as well as her formal Complaint to the same court. I also have a partial copy of Niger s Reply to the ECOWAS Court, apparently prepared directly in response to Hadijatou s Requête. Finally, I have an official copy and an unofficial English translation of the ECOWAS Court s final judgment in the case. The only document in my possession from the various hearings in the Nigerien court system is the Niger Supreme Court s opinion when it remanded the case back to the Court of First Instance of Konni. I was able to piece together some of the arguments made in the lower Nigerien courts, however, because the documents I did manage to obtain quoted key passages from the proceedings in the Nigerien justice system. 39 CCJ Judgment, supra note 17, 8; Requête 1, Dame Hadijatou Mani Koraou v. La République du Niger (le 10 septembre 2007) [hereinafter Requête] (a petition submitted by Hadijatou Mani s attorneys to the ECOWAS Community Court of Justice) (on file with author). 40 See Requête, supra note 39, 1 n.1; see also infra Part IV.A (offering a more detailed account of the meaning of Bouzou). 41 See infra Part IV.B (arguing that ownership of another human being carries different connotations in Nigerien tradition than in Western law and society). 42 Requête, supra note 39, 1 2. 43 Id. 1; CCJ Judgment, supra note 17, 8. 44 Helen Duffy, Hadijatou Mani Koroua v Niger: Slavery Unveiled by the ECOWAS Court, 9 HUM.RTS.L.REV., no. 1, 2009, at 151, 152.

318 Q U I N N I P I A C L A W R E V I E W [Vol. 32:311 About a year after her purchase, at a time when she was not yet thirteen years-old and on a day when she was working in the fields, Naroua violently forced sex upon her for the first time. 45 In the following years, he forced sex upon her repeatedly and often beat her, sometimes with a whip, as a result of genuine or supposed rebelliousness. 46 Over a period of nine years, she bore four children, two of whom survived. 47 Hadijatou frequently attempted to leave Naroua s home, but each time was brought back. 48 On August 18, 2005, Naroua presented Hadijatou with a certificate of liberation from slavery. 49 His motivation is unclear, but it seems likely that word had arrived in their rural village that the Government of Niger had in 2003 with the encouragement and assistance of the international community passed strict new anti-slavery laws that included steep fines and long jail sentences for those who bought and sold slaves or held people in slavery. 50 The certificate stated that Hadijatou was free and was nobody s slave. 51 It was signed by Naroua and Hadijatou, and was endorsed and stamped by the traditional chief with administrative authority over the village in which they lived. 52 As later became obvious, Naroua fully intended to maintain control over Hadijatou and their offspring in spite of her manumission. As soon as Hadijatou had the certificate in hand, however, she took steps to leave. 53 Naroua forbade her departure, declaring that she had been and continued to be his wife and thus was compelled to remain in his household. 54 She held her peace but, some months later, at approximately age 21 and on the pretext of visiting her sick mother, left 45 CCJ Judgment, supra note 17, 11. 46 Id. 11; Requête, supra note 39, 3. 47 CCJ Judgment, supra note 17, 12. 48 See Niger Ex-Slave Wins Landmark Case, BBC NEWS, http://news.bbc.co.uk/ 2/hi/7692396.stm (last updated Oct. 27, 2008, 4:43 PM) (quoting Hadijatou: I was beaten so many times I would run to my family.... Then after a day or two I would be brought back ). 49 CCJ Judgment, supra note 17, 13. 50 See West Africa Slavery Still Widespread, supra note 1 (reporting that anti-slavery activists from the Nigerien NGO, Timidria, had been active in the region where Hadijatou lived and that they had told Naroua about the new criminal penalties and suggested that he either marry his various wahay or let them go); Requête, supra note 39, 4 n.8. 51 CCJ Judgment, supra note 17, 76. 52 Id. 13; Requête, supra note 39, 4 5. 53 CCJ Judgment, supra note 17, 14; Requête, supra note 39, 5. 54 CCJ Judgment, supra note 17, 14.

2014] A P P L E S T O O R A N G E S 319 Naroua s household never to return. 55 B. Procedure and Legal Reasoning in Niger s Courts The procedural history of the various lawsuits to which Hadijatou was party is complicated and much of the legal reasoning expressed in the pleadings and decisions is obtuse. 56 As later sections of this paper will discuss, the procedural ping pong and the doctrinal confusion was caused, at least in large part, by the fact that the parties and the various courts involved were, without acknowledging it, switching back and forth between Nigerien customary law and Western law. 57 The legal odyssey began on February 14, 2006, when Hadijatou brought a complaint before the civil and customary tribunal of the Nigerien city of Konni seeking formal legal recognition that she was free to live her life as she pleased. 58 That tribunal issued a judgment on March 20, 2006, finding under the customary law of the Bouzou and Hausa people that there was never a proper marriage between Hadijatou and Naroua because he never paid a marriage dowry or solemnized the occasion with a religious ceremony, both of which are customarily 55 See id. 56 See supra note 38 and accompanying text. 57 See supra note 27 and accompanying text; see also infra Part IV. 58 CCJ Judgment, supra note 17, 15. The written record reveals a slight discrepancy in that the Niger Supreme Court Opinion states that Hadijatou s action in the customary court was styled as an action for divorce rather than a request that the court declare her free. See Cour Supreme [Supreme Court], Hadijatou Mani v. El Hadji Souleymane Naroua, Arrêt No. 06-306/Cout, at 1, (Niger Du 28 décembre 2006), available at http://www.juricaf.org/ arret/niger-coursupreme-20061228-06306 [hereinafter Niger Supreme Court Decision]. This discrepancy may be explained partly by the fact that Niger s legal system is pluralistic by design, permitting state courts in certain circumstances to apply customary law. See infra Part III.C; see also ANTI-SLAVERY, supra note 6 (stating that Niger s courts pass rulings based on customary law, which is discriminatory towards women, and in direct breach of it s [sic] Criminal Code and Constitution, thus failing to condemn the practice to which Hadijatou had been a victim, and to accord her the protection required by domestic and international law ). These rulings based on customary law can be starkly different from and contrary to state law and international law, particularly with respect to women s rights. See id. Confusion among courts arises because, in addition to the fact that courts are grappling with different sources of law, many Nigerien judges, particularly in higher courts, have no training in or particular knowledge of customary law. See Abdourahaman Chaibou, L Influence de la Jurisprudence Nigérienne en Droit de la Famille Sur la Coutume: Les Notions D Evolution Generale du Pays et de Coutume Urbaine, Revue Nigérienne de Droit, no. 2, 1999, 71, 73 (Niger) (describing and critiquing Nigerien state courts application of customary law).

320 Q U I N N I P I A C L A W R E V I E W [Vol. 32:311 required to seal a marriage. 59 The court concluded that Hadijatou was free to live her own life with the person of her choice. 60 Soon after this judgment was handed down, Naroua appealed to the Court of First Instance of Konni, 61 the rough equivalent of a state superior court or a federal district court in the U.S., which rendered a decision on June 16, 2006 overruling the lower court s judgment. 62 The Court of First Instance, relying on testimony by assessors laypeople who are permitted by statute to advise state judges on matters of ethnic custom found that Hadijatou fell within the social category of wahay. 63 Although the Court of First Instance did not say so explicitly, it implied that the status of wahay was more akin to wife than to slave. 64 Specifically, the court ruled that wahay is not a slave within the home because she carries out her household duties without servitude or forced work or service and is not considered the property of her husband. 65 The court went on to say that the marriage of a free man with a slave is in accordance with Islamic principles and indeed, follows the practice of the Prophet Mohammad 66 and thus is legal when the means do not exist to marry a free woman and [the man] fears falling into fornication. 67 Finally, after implying that wahay was a sort-of wife, not a sort-of slave, 68 the Court of First Instance concluded that a wahay could not initiate a divorce except where (1) her new husband agreed to reimburse the cost paid by the master, (2) her master was impotent or unable to procreate, or (3) the master had deprived her of food or clothing 69 query: was the court aware that it referred to Naroua as her master even though it had just ruled that he was her husband, or was it using the term master in its more generic sense as it might 59 Requête, supra note 39, 7; CCJ Judgment, supra note 17, 16. The customary court also noted that a wahay does not inherit from her husband as other spouses do. See Requête, supra note 39, 54 (citing the decision of the customary court, Jugement coutumier no 6 du 2 mars 2006, 2nd paragraph). 60 CCJ Judgment, supra note 17, 16. 61 See id. 15 27 (discussing the procedural history). 62 Requête, supra note 39, 8 9; CCJ Judgment, supra note 17, 17. 63 Requête, supra note 39, 9, 11. 64 See id. 65 Id. 9. 66 See id. 1 2, 9; see also Niger Supreme Court Opinion, supra note 58. 67 Requête, supra note 39, 9 (quoting Judgment No. 30 rendered by the Court of First Instance of Konni dealing with customary matters, June 16, 2006); Niger Supreme Court Opinion, supra note 58 (quoting the same language). 68 See Requête, supra note 39, 8 9; Niger Supreme Court Opinion, supra note 58. 69 Requête, supra note 39, 39.

2014] A P P L E S T O O R A N G E S 321 apply to a slave master or a husband? In sum, the Court of First Instance of Konni recognized the customary social category of wahay and, without explicitly finding that wahay was the equivalent of wife, ruled, more or less, that the master of a wahay enjoys all of the rights a husband has over a wife. 70 Hadijatou appealed to the final domestic authority, the Judicial Chamber of the Supreme Court of Niger, to request application of the law against slavery and slavery-like practices. 71 In a judgment dated December 28, 2006, the Supreme Court quashed the judgment of the Court of First Instance on grounds that the lower court had relied to too great an extent on the testimony of the customary assessors. 72 Without reaching the issue of Hadijatou s slavery status, the Supreme Court remanded the case to the Court of First Instance for review by a different panel, apparently for the purpose of deciding whether Hadijatou was entitled to a divorce, even though her claim upheld by the first and lowest court to address the issue was that she had never been married to Naroua in the first place. 73 This is when the case took a truly strange twist. Before the Court of First Instance of Konni ruled a second time, Hadijatou married a man of her choosing, Mr. Ladan Rabo. 74 Upon learning of this marriage, Naroua filed a criminal complaint against Hadijatou for bigamy at the gendarmerie in Konni. 75 After a brief investigation, the police referred the complaint to the state prosecutor at the criminal division of the Court of First Instance of Konni the same court that was working on Hadijatou s slavery/divorce case stating among other things in the referral document that Naroua was Hadijatou s master, in spite of its recommendation that she be prosecuted for 70 See id. 38. In what was apparently an alternative basis for its decision, the Court of First Instance reasoned that Niger s anti-slavery laws could not be applied to Naroua anyway because Hadijatou was purchased in 1996, long before Niger s anti-slavery criminal laws were passed in 2003. Id. It is a complicated argument: Niger s pluralistic legal system permits recognition of customary law by state courts, so long as the custom is not repugnant to fundamental principles expressed in domestic legislation or international law. See discussion infra Part III.C. Since Niger had not adopted anti-slavery laws, there was no repugnancy and Naroua s actions were lawful. See Requête, supra note 39, 38. 71 CCJ Judgment, supra note 17, 18. 72 Requête, supra note 39, 11; Niger Supreme Court Opinion, supra note 58. 73 CCJ Judgment, supra note 17, 16, 19; see also Niger Supreme Court Opinion, supra note 58. 74 Requête, supra note 39, 12; CCJ Judgment, supra note 17, 20. 75 Requête, supra note 39, 13; CCJ Judgment, supra note 17, 21. Gendarmerie essentially means police station.