From Settlement to Divorce: An Islamic Judicial Practice in Burkina Faso

Abstract

Burkina Faso is a secular state with a legal system based on positive law. This system presents many access problems, leaving a lot of room for informal authorities dispute resolution. Neighbourhood chiefs, lineage elders, priests, imams, social workers and policemen are all involved in resolving conflicts day-to-day. Also, in this country where 60% of the population is Muslim, Islamic reconciliation spaces occupy a prominent place, though they are paradoxically not very visible. These spaces exist by virtue of the charisma of Islamic elites who are considered 'great Muslims' and are therefore consulted in their neighbourhoods, to serve as mediators in family conflicts. Their opinion is regularly solicited on issues concerning inheritance, childcare and divorce. Divorce cases are the subject of a large number of requests. Their analysis is extraordinarily revealing with regard to changes in sub-Saharan conjugality and ways of resolving family conflicts in Muslim contexts. We will therefore examine how 'Islamic law' is used in these conciliation spaces. How does marital conflict resolution work? How are divorce procedures viewed there?After presenting a few specifics on the Burkina Faso legal and religious context, the study will proceed in three phases. We will first see how 'settlement', sulh, constitutes the keystone of Islamic conciliation practices in the context of Burkina Faso, which is anchored in a culture of forgiveness. Then an examination of cases of marital conflict will reveal the multiplicity of Koranic forms of arbitration, in order to finally show their limits where divorce is concerned.From a methodological point of view, it is important to note that conducting an investigation in Islamic conciliation spaces is a difficult task with results that are too often fragmentary. A veritable 'terrain sensible' (Bouillon, Frésia and Tallio, 2005), this type of setting presents the ethnographer with significant field access problems, and confronts her with a constant feeling of embarrassment. The situations observed there are rooted in the private sphere, making direct observation difficult. On the one hand, couples or families that request consultations do not want their private problems to be heard by a person from outside. On the other hand, the Islamic authorities who receive them wish to respect a principle of discretion that their credibility depends on. Access problems are also linked to the labile, unofficial character of these spaces. Concretely they are mosques, the homes of Islamic authorities, or the premises of Islamic associations. In other words they are environments