The Survey of African Marriage and Family Life

International African Institute

The Survey of African Marriage and Family LifeAuthor(s): Philip MitchellSource: Africa: Journal of the International African Institute, Vol. 24, No. 2 (Apr., 1954), pp.149-156Published by: Cambridge University Press on behalf of the International African InstituteStable URL: http://www.jstor.org/stable/1156137 .

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[ 49]

THE SURVEY OF AFRICAN MARRIAGE AND FAMILY LIFE'

SIR PHILIP MITCHELL

THE Survey of African Marriage and Family Life, organized by the International African Institute in collaboration with the International Missionary Council, is a

formidable work of over 450 pages of small print. Though somewhat heavy reading for the general, it will be an invaluable book of reference for those concerned with the subject.

Sir John Waddington, Chairman of the Institute and of the Committee of the Survey, says in a foreword that the aim has been ' to present a factual account of the existing situation against the background of indigenous social organization and custom; to point out and analyse the changes in African social organization due to modern developments and contact with Western industrialized societies; and to give an account of the various ways in which administrations and missionary bodies are handling these problems'.

The volume now published is described by Mr. Arthur Phillips, in an admirable introductory essay, as' the first stage in the proposed inquiry-i.e. it is based purely on the examination of documentary material'. This no doubt accounts for the first difficulty which confronts a reader who attempts to form a judgement of the book: that it consists very largely of a catalogue of recorded information, social, legal, and theological-if that is the right word-about a wide range of subjects which are sadly lacking in definition.

For not only do the forms of union we call 'marriage' mean a great variety of things to a great variety of African tribes and communities, they mean-and have meant for centuries-different things to different kinds of Christian people and churches, at different dates; while the practice of great numbers of contemporary European and American Christians, especially in the matter of divorce and remarriage, is almost as far removed from the doctrine of the Church, any church, as is African customary marriage. Even the expression ' the Church ' has an almost infinite variety of meanings, depending upon how far along the broad and enticing highway of dissent and eccentricity one may decide to place the limit of what can be called a 'Church '.

I remember, when I was a Provincial Commissioner twenty-five years ago, receiv- ing two earnest young men from the United States, dressed in coats of many colours, who said they wished to establish a mission station on behalf of an association in the States of which I had never heard. They laid down the conditions necessary for their station thus: altitude not less than 4,000 feet; abundant spring water-supply; fertile soil suitable for coffee-growing; no natives within five miles, because of the danger- for the nmissionaries-of infection with malaria. They said that their church was ' an independent community based on the literal truth of the Bible, the whole of the

Survey of African Marriage and Family Life, edited and with an Introduction by Arthur Phillips. Pp. xii, 462. 95 3. London: Oxford University Press for International African Institute.

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150 THE SURVEY OF AFRICAN MARRIAGE AND FAMILY LIFE

Bible '. If in fact they had established a station and made contact with an African community, their church would certainly have interfered with local marriage customs and practice. But was it a 'Church '?

I have known many African separatist churches in my time. Most of them owed their origin to schism over the eternal question of polygamy-a problem on which the Survey assembles a mass of useful information-usually the personal polygamy of the founder. It is at least a possibility, perhaps a probability, that large-scale seces- sions from the many various churches established by or deriving from the missionary societies will occur in the next generation over this issue, stimulated by contemporary African resentment at the assumption of superiority by the West. They may take their stand in this matter (to which I shall have to return) on the words of Saint Augustine quoted by Mr. Lyndon Harries (p. 3 3 5): '... When polygamy was a common custom, it was no crime; it ranks as a crime now because it is no longer customary. We must distinguish between offences against nature, offences against common custom, offences against positive law.... If you enquire as to natural law, he [sc. Jacob] took his wives not from fleshly lust, but in order that he might have offspring; if as to custom, it was a general practice at that time in those parts; if as to positive law, there was none that prohibited it.' I wish my reading had led me to those words in the days when, as a District Commissioner, I was constantly required to adjudicate in disputes between parties supported on the one hand by a crusty old chief and his elders and on the other by a zealous Father Superior with the local authority of a medieval abbot, the matter at stake being for the one party the receipt or payment of cows and goats and for the other eternal damnation. The cows or goats always had it, of course, whatever the D.C. might order or the abbot threaten; they were at least there ' at that time in those parts' and thus more convincing than the remote incomprehensible. Secession churches might assert, too, that as between polygamy and prostitution, they preferred the African institution; and they would see nothing incompatible with that in the general indifference among Africans about the practices indulged in by children before puberty-or after, provided that resulting pregnancies were dealt with within the, to them, decent folds of tribal custom. But would they be churches ?

So, when Mr. Phillips asks the question 'whether these [European and African marriage] are simply different forms or varieties of the same institution or, on the other hand, fundamentally different institutions ', he seems to me to be asking a question so vague as to lack meaning. For if' these' on the one hand mean marriage as prescribed in the canon law of the episcopal churches and on the other, to choose at random from hundreds of examples, the marriages of the Longuda and Yungur tribes in Nigeria described by Dr. Mair, plainly they are fundamentally different institutions.

But if 'these' are customary marriage as practised for generations by the Zulus and Dr. Guttman's conception of marriage in his work among the Chagga, then they can justly be called different forms or varieties of the same institution.

I doubt, however, whether the answer to the question is of great importance, except, may be, in some measure to Mr. Lyndon Harries's part of the Survey, however interesting it may be to students of the law, secular or canon. What seems to me to matter is that there certainly are African marriages, mostly following one of two broad general types, and also Christian marriages, differing greatly according to



THE SURVEY OF AFRICAN MARRIAGE AND FAMILY LIFE

denomination and the part Governments have elected to play by way of legislation, to say nothing of the contemporary attitudes of those who are parties to them. There are also, but not of much significance yet for Africans, civil marriages before a registrar; and, especially in urban areas, among Africans 'irregular' unions which vary from short-term concubinage to happy and successful associations lasting for many years and not infrequently for life. This last kind of' marriage ' may be said to have been forced on Africans in the last few generations by the new social and economic conditions in which they have been induced or compelled to live. For they could not, in tens of thousands of cases, reconcile employment for salaries or wages in towns, plantations, mines, ships, farms, railways, and a host of other occupations, often far from the tribal home, with customary tribal or clan marriage. Nor could they find a permanent solution, compatible with their new habits and needs and their old natures, in the varying forms of Christian marriage which the missionary societies had to offer, largely it is true because of their attitude to polygamy and divorce. They had, then, no choice but to devise a new kind of customary marriage which fitted their new circumstances, just as they have had to create a new range of' customary ' or common law to meet the introduction of carts and ploughs, the growing of coffee, the establishment of dairy co-operative societies, the ownership of motor transport or of permanent buildings in towns.

The confusion in which these matters of marriage and family life are involved is well illustrated by a sentence from the document which defined the terms of the Survey (p. ix): 'The family [my italics] is the most significant feature of African society, and the process of disintegration is nowhere more apparent than in this central institution.' For if by family is meant anything at all resembling what we mean by the word when we use it in England, it is confined to a small minority of Africans. For the great majority the' family ', as Dr. Mair says (p. i),' is often differently con- stituted from the grouping to which the name is given in Western society ... the polygynous joint family, consisting of a man, his wives, and their children, is the ideal of most Africans'. Dr. Mair's first chapter, in which she explains succinctly the general characteristics of African marriages and families, is an excellent introduction and the reader previously unfamiliar with the subject will gain much from a careful study of it. He will then begin to understand the confusion which can efnsue when words are used with so many varying meanings. 'The father of a family', for instance, that genial figure of Western society in his carpet slippers beside the fire, in Africa may be the man who first contracted the marriage, or any of his uncles, brothers, or age-group contemporaries, a proxy father called in to ensure procreation or, in the case of important people, any male member of the household and even a woman, if she is also an important chief! The fire may be in any one of a dozen or more huts or homesteads or even villages, among which also the children may be scattered, often apparently at random, until the boys are gathered in to their pre- liminary initiation groups and the girls for the seclusion and fattening that often precede marriage.

' Family' then may be the right word, or at any rate the only word in the language for these groupings; but when it includes also family in our sense, it is certainly a great deal to make one word mean, as Alice remarked to Humpty Dumpty! The African way of living has been a serviceable way for many generations; but if it was

5 I




'family life' it was not any sort of family life known to the West. And, in any case, as the Survey so clearly shows, it was-or perhaps I should say is: as Dr. Mair points out, even the tense is a matter of doubt-subject to forces which have brought about great changes, so that ways of living for Africans today cover almost any imaginable conditions from the early primitive tribal to the way in which you and I live.

The second part of the Survey, in which Mr. Phillips discusses and expounds the law, is a scholarly and valuable contribution to an understanding of the subject. But here I must register a protest against the excessive and distracting use of footnotes. Footnotes have some merit as a means of giving references without distracting attention from the text; but when they occupy half or three-quarters of the page (pp. 180, I8I, I86-7, or 194-5) they should be either in the text or the waste-paper basket. English lawyers have, I suppose, parenthetical and alternative habits of thought-he did not do it, or if he did, he did not mean it, or if he meant it, it was something else -and a professional aversion to intelligibility; how else can you explain most modern legal drafting? Mr. Phillips's footnotes are altogether too much.

It is hardly matter for surprise that the law in respect of African marriage is, as the Survey shows, a supreme example of muddle. English draftsmen have been almost completely ignorant of the societies for which they have been required to prepare legislation. The churches have been concerned to promote or protect the institution of Christian marriage as understood by each severally, while disagreeing among themselves widely, and often hotly, about what in fact constitutes Christian marriage. The Courts, if they have been Colonial Courts, have usually (except in South Africa) not even known the language of the litigants, let alone what they meant by the words translated as ' marriage ', ' divorce' and so on. Accustomed to rely on Counsel to explain what it is they are asked to decide, the Courts have in these matters either lacked that assistance and guidance or have had it from Counsel as sadly at sea as themselves. If they have been Native Courts, they have usually been familiar with the people, the language, and the substance of disputes, as well as the custom to apply to them, always supposing that a party did not claim another jurisdiction by virtue of being a Christian or a Moslem or belonging to a different tribe-and that and many other things bewildering for Native Courts occur with increasing frequency, as Mr. Phillips shows.

Orders in Council and Ordinances may prescribe that' In all cases civil and criminal to which natives are parties, every court shall be guided by native law, so far as it is applicable and not inconsistent with any Order in Council or Ordinance .. .', but who is to tell ' every court' what is native law ? In days gone by, when District Commis- sioners and their Assistants heard most of the civil, ' native law' cases brought by Africans, injunctions of that nature in Orders in Council were on the whole applied with skill and knowledge; when not defeated by extraneous circumstances, Native Courts contrive to do it still. But High and Supreme Courts, and Resident Magis- trates have seldom been either able, or notably zealous, to do so; no doubt because it was beyond their ken.

Sir Robert Hamilton, for example, in the case of Rex v. Amekeyo (p. 195) referred to ' a so-called marriage by the native custom of wife-purchase ' and based his judgement on the view that this custom did not' approximate in any way to the legal idea of marriage '. So much for the effectiveness of Orders in Council.



THE SURVEY OF AFRICAN MARRIAGE AND FAMILY LIFE 153

Legislation by judicial decision, or case law, is an important part of our own system of law-making. Among African tribes it was often the only form of legislation. Legislature, Judiciary, and Executive were not, of course, separate branches of authority; and whether they were combined in the person of a chief, or a chief and his elders, or clan and patriarchal heads, made no great difference. It was the accepted function of Authority to resolve the disputes of the people, by customary law if possible, by wisdom and understanding if customary law did not fit the case; be that as it may, a decision must be given and, if it was recognized as just and fair, it became custom. True, like other decisions in tribal society, it might not be obeyed; that was a matter which the parties were usually left to settle among themselves and the spear or the sorcerer might still have a part in the business. But a dispute had been sub- mitted to Authority and decided. Colonial Governments might at a later date give statutory powers to ' Native Authorities ' to make rules and regulations, but whether they did so or not made no practical difference. The tribal society needed such powers and they had to be exercised.

It could hardly be otherwise in what Mr. Phillips rightly calls a pre-literate society. There would necessarily be a body of customary law as wide in extent as the normal experience, occupations, and circumstances of each community required. The memories of chiefs and elders were its repositories and their repute and authority depended very largely on their competence in this respect. There were customary tribunals to apply custom to cases; and, if it did not apply, they created custom for the occasion. Mr. Phillips says (p. 186): ' There have been indications in some places of the emergence of a kind of jus gentium, purporting to represent those elements which are common to various tribal systems, with perhaps some modern accretions ', and he gives an excellent example from Nairobi; he is describing the process in one form, but it is common and ancient. Preliterate communities, which have had no experience of any systematic government or authority greater than the tribal chief or clan patriarch, must in fact, unless they are to exist in a condition of anarchy, conti- nuously create ' custom ' to meet circumstance in forms which are acceptable to and obeyed by the people. Africans may not have evolved forms of marriage and family life such as seem desirable to us, but they have a deep-seated community sense and have shown a remarkable capacity to form new communities when old ones have been left behind up-country or submerged in waves of migration. They are easily led to violence but by no means tolerant of anarchy.

It is well that this is so, for in the new Africa they have had to fend for themselves, to improvise societies in strange surroundings, and to make a way of living out of the social and economic chaos into which tribal Africa has been cast. Now, in great numbers, from the suburbs of Johannesburg to Leopoldville, Nairobi, Broken Hill, the Jinja Barrage over the Nile, and the Mombasa docks, they marry and are divorced, inherit land, houses, and stock, use the land for crops and pasture, the fisheries, the hunting-grounds, the forests, carry on their own trade and trades, their ceremonial and festivals, with negligibly effective intervention from the Colonial Governments. These make laws and regulations about the things in which they are interested- sanitation, forests, and game, for example, and in recent years land preservation and the like-or exact licences for doing this and that. If a man gets caught up in these things it is regarded, over most of Africa, as just rank bad luck: 'Alye na kesi ', they




say in Swahili, ' halimi.' He who has a case cannot hoe; but wise men do not have cases in which the Government and the Colonial Courts are involved.

When one reads Mr. Phillips's most interesting pages and those by Dr. Lyndon Harries that follow, one may well wonder how Africans manage at all in the legisla- tive and dogmatic cat's cradle in which the Colonial Powers and the Churches between them have contrived to wrap up their already sufficiently complex systems of kinship and marriage. Here are just a few of the many examples in the Survey: Footnote 6 on page 178, '. ? ? in disputes between Africans and Europeans " customary unions are not recognised as legal marriages, and a widow is therefore unable to recover damages from a European motorist who negligently causes her husband's death, although she would be able to claim from an African in similar circumstances ".' I have already quoted Sir Robert Hamilton; and with truth does Mr. Phillips say, 'Any statutory regulation of the procedure for the solemnization of a customary marriage or perhaps even any precise statement of the essentials of such a marriage is therefore likely to involve a certain degree of interference with native law and custom.'

Dr. Lyndon Harries says frankly (p. 3 2): ' Official action by missions in promoting the Christian ideal of marriage has never been initially or directly related in principle to what missions have learned about African indigenous marriage.' And a few lines later: 'Whether or not customary marriage is a satisfactory system within the tribal context has always been irrelevant to the missionary aim.' Starting from these pre- misses and with wide interpretations of their own as to what ' Christian marriage' is or should be, it is not surprising that the missions have added greatly to the confusion in which they, their converts, the Governments and the mass of the people have become involved. If the Council of Trent (p. 336) could declare that the wise and charitable words of Saint Augustine which I have quoted made him anathema, it is little wonder that, as dissent spread in the centuries that followed, the conflict between professing Christians in the western world should have extended, as described in Ch. II of Part III of the Survey. In the course of it, saintly men were led by the strength of their feelings to describe conditions resulting from polygamy which can have existed only in their own indignant minds-for example Bishop Callaway as quoted on page 349. How very surprised to learn such things about themselves and their wives would many of my old African friends have been!

Indeed, I cannot help sympathizing with Mr. T. J. Sawyer, a negro, who spoke up at the Diocesan Conference in Sierra Leone in i888 (p. 350): 'He maintained that polygamy is practised by four-fifths of the human race, and that it is arrogant for the one-fifth to assert that the custom is immoral, "at any rate, it is not immoral in Africa ".' He had Saint Augustine with him there, but, poor man, like me he did not know it.

But if Governments and Missionary Societies by their part in this matter have been the causes of much confusion, there were other factors involved: (p. 374) ' The fundamental meanings and sanctions of customary African marriage were condi- tioned by and depended upon the existence of an organic and unified society which was through Western influences, of which the missionary was only one, rapidly dis- integrating.' That is certainly true; but I have already pointed out that Africans have a remarkable talent for creating new communities and I would myself have added to that statement' and being reconstructed, largely instinctively, in new forms '. In the



THE SURVEY OF AFRICAN MARRIAGE AND FAMILY LIFE 155 circumstances of the day, the new forms included many attempts to adopt the new Christian form of marriage. It may be true, as was observed by a missionary in Tanganyika (p. 388), that: ' We have to face the fact that Christian marriage is actually incompatible with the organised system of clanship, and will in the end revolutionise the clan, or cease to be Christian marriage.' And again, from the Gold Coast (p. 38 z): 'It is clear that the nature and obligations of marriage as taught by the Church are neither properly understood nor undertaken by our people.' But is it an unfair com- ment to suggest that the fault, if fault there be, lies with the attempt to insist on the conditions imposed by the Churches-varying greatly among themselves and whether they fitted or not-either upon the old tribal society or the new communities growing up in the new world of our creation ?

At least there can be no excuse in future for ignorance of a situation which must surely be admitted to be of the greatest gravity, involving as it does a possibility that whole communities may be turned away from the Churches by the failure to work out the central problem. That problem seems to me to turn on the facts that tribalism is collective and Christianity individual; tribal life is static and civilization dynamic; and the institution which Western Christians in the twentieth century call marriage is not even either stable or agreed among them and can hardly be held out to Africans as the only form in which it is possible to be at the same time both Christian and married. In support of this opinion, I suggest to readers that they should pay special attention to Dr. Lyndon Harries's Ch. VIII-a very important chapter indeed- where they will find how wide and serious are the differences between the various Churches and the missionary societies that have sprung from them.

In a broad sense the problem is an urban problem, meaning by urban those conditions in which large numbers of people from different tribes live together-that is, not only towns in the strict sense, but mines, large plantations, trading settlements, and so on. The effects may be felt acutely in the tribal villages, they certainly are; but it is the pull of the new life in new places and new forms that is the cause. Dr. Mair says it is hard to see how the present state of affairs can be remedied in the villages (p. 155); it is, but if it were remedied in the towns a great deal of good would follow, not least for the villages.

Dr. Lyndon Harries is no doubt right when he agrees with those who dismiss as 'romanticism' the suggestion that there are elements in tribal marriage capable of adoption into contemporary church dogma. But to a layman it does not seem to follow that contemporary church dogma must necessarily be taken as a complete bar to any accommodation, such as St. Augustine would have approved for Africans living 'at that time in those parts': 'that time' being the point in time which Africans have reached today, between the Stone Age and the Atom. The third para- graph of the Twenty-Fifth Article seems to imply that there may be in this matter some corrupt following of the Apostles. For myself I find the most important passage in the Survey on page I 55, where Dr. Mair says her final word:

'It is hard to see how this state of affairs could be remedied in the villages. In the towns, however, most observers have found that an ideal of marriage and home life exists, and that great efforts are often made to attain it. If irregular unions are regarded with tolerance, yet legal marriage is still regarded as the ideal; homes are kept clean in the midst of slums, and children cared for as well as may be. Where higher standards



I56 THE SURVEY OF AFRICAN MARRIAGE AND FAMILY LIFE

of living are attainable, marriage is more stable, women stay at home and look after their children, and children go regularly to school. The answer here lies surely as much in the attack on African poverty as in moral exhortation.' Or, I would add, in niceties of dogma.

Resuzie

L'ETUDE DU MARIAGE ET DE LA VIE FAMILIALE CHEZ LES AFRICAINS

L'AUTEUR fait la critique de l'enquete sur le mariage et la vie familiale chez les Africains, qui a etC organisee par l'Institut International Africain et le Conseil International Missionnaire, dont le rapport a etC publie en I953. Tout en exprimant son appreciation de la valeur du rapport en tant qu'ouvrage a consulter, l'auteur critique l'emploi des termes ' mariage ' et 'famille ' qui, d'apres lui, manquent de precision. Il n'est pas du tout certain que l'un ou l'autre de ces mots puisse s'appliquer aux institutions africaines aussi bien qu'aux institutions europeennes. En outre, la signification de ' mariage' en Europe a subi des variations a diverses epoques et differe encore parmi les diverses societes et eglises chretiennes.

I1 est incontestable que plusieurs facteurs - economiques, politiques et religieux - influent sur la structure de la vie africaine et sur le mariage parmi les Africains. Mais, etant donne que les Africains s'adaptent a des formes nouvelles de vie sociale et politique, ils se mon- treront capables, selon l'auteur, de creer une forme nouvelle de mariage qui conviendra a leur etat. II se demande si les administrations ou les eglises sont bien avisees en cherchant a imposer aux Africains des idees sur le mariage qui ne sont ni acceptees ni pratiquees univer- sellement par les chretiens de l'Occident.



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The Survey of African Marriage and Family Life