Reconciliation and Revenge in Post-Apartheid South Africa: Rethinking Legal Pluralism and Human Rights

2000 Current Anthropology  
Human rights are a central element in the new governmental project in the 'New South Africa', and this article traces some of the specific forms of connection and disconnection between notions of justice found in townships of the Vaal and rights discourses as articulated by the Truth and Reconciliation Commission. Human rights in post-apartheid South Africa have had varied social effects which are understood through the categories of'adductive affinities' and 'relational discontinuities'.
more » ... ous values and human rights discourse have converged on the notion of'reconciliation' on the basis of shared value orientations and institutional structures. There are clear divergences, however, between human rights and notions of justice as expressed in local lekgotla, or township courts, which emphasized punishment and revenge. The article concludes that the plurality of legal orders in South Africa results not from systemic relations between 'law' and 'society'. Instead, pluralism emerges from multiple forms of social action seeking to alter the direction of social change in the area of justice, within the context of the nation-building project of the post-apartheid state. Two Vignettes n' 'Reconciljution' and 'Justice" Septembei 2 i, t *v>o. Sireei Theatre sponsored by the South African Council of Churches at the Central Methodist Church during a meeting of the victims' organization the Khulumani Support Group. A black minister presents a white Afrikaans-speaking policeman to his congregation. The policeman confesses to ihe daughter and widow of a dead African man that he was present at the torturing and murder. The policeman says, 7 'm sorry. I was afraid. I would like to seek to reconcile with you'. The women react angrily and the mother shouts 'You are a bastard and you deserve to die.' Jhe minister puts himself between the two parties and protects the policeman. An old man, a relative also of the deceased, enters and quotes Genesis. He says that he forgives the policeman, 'I forgive but I won 7 forget. I want to build a new South Africa.' Ihe pastor extols his virtue, saying, 'You have set an example for the others'. He sends the two women to a trauma counselor. Duma Khumalo was sentenced to death with five others in 1986 for the murder of a local Vaal councilor, Mr. Dlamini, which he always claimed he never committed 1 .. The 'Sharpeville Six' became a cause celebre, a case which was taken to the United Nations and became an international symbol of the lack of justice for blacks under apartheid. When Duma was released in 1993 after seven years on death row, he demanded a retrial, but was ignored. He staged a sit-in at Sharpeville police station for 27 days in November 1995. In December the police took him to meet with the chief prosecutor and white magistrate in Vereeniging who said that he didn 't have a legal case to hear, as there was no new evidence. On the 5" 1 of January, 1996, Duma hid an axe in his coat, entered the Vereeniging court while it was in session, and went berserk. Duma Khumalo is an imposing figure at over 6 feet tall and weighing over 200 pounds. The prosecutor cowered under his desk and shrieked 'Don't kill me!' As others fled screaming, he swung the axe at desks, chairs, furniture, and the court s PA system. He attacked no one, and when armed police arrived he put his axe down calmly and put his hands in the air. In minutes, he had caused pandemonium. wreaked SI 5000 worth of damage, and hewn a large pile of expensive leak firewood. When I interviewed him in late 1996, Duma told me, 'I just wanted justice 3 .' Legal Pluralism and Human Rights in South Africa South Africa's first post apartheid government, led by the African National Congress (ANC), has embarked upon a nation-building project consciously predicated upon the creation of a 'culture of human rights'. This involved a number of classic liberal institutional reforms such as the incorporation of international human rights law into the Bill of Rights of the 1996 Constitution, and the setting up of an array of new bodies such as the Human Rights Commission and the Truth and Reconciliation Commission (TRC). This article evaluates the manifold consequences of state formulations of human rights in African 'townships', by looking at local responses to the view of'reconciliation' commonly espoused during TRC Human Rights Violations hearings. It attempts to answer questions such as: how does transnational human rights talk relate to everyday moralities and normative understandings of justice? Do human rights concepts have any purchase in areas affected by political violence and if so, then how and why? Over the past fifteen years, there has been a lively dialogue between anthropologists and colonial historians regarding the relationship between state law and informal moralities and mechanisms of adjudication which are sometimes referred to as 'customary law'. A key and contested notion in this debate has been 'legal pluralism'; both a descriptive term and analytical concept which attempts to address the existence of more than one legal system in a single political unit. In general, anthropologists have found the term useful, whereas historians of colonialism have objected to it, and this article asks whether legal pluralism is valuable for thinking about legal consciousness in the unique historical phase of the dismantling of apartheid, an institutionalized regime of racial segregation and dominance. Legal pluralism originated in anti-positivist legal philosophy in the early twentieth century, as a reaction to an exclusionary state centralism which only regarded state law as 'law 14 . In reality, argued pluralists, state law was far from absolute, and in many contexts was not particularly central in the normative ordering of society. Against legal monism, Malinowski (1926), asserted that social norms in non-state societies perform the same regulatory functions as legal norms, thus raising non-codified social rules to the status of'law'. The insight that law does not have absolute privilege in dealing with conflict was an important one 3 , even though it came with normative functionalist assumptions about organic stability and stasis. Legal pluralists such Jane Collier (1975) and Sally Engle Merry (1988) reinforced Malinowski's stance, by conceptualizing legal and social norms as equivalent and mutually constitutive. Judicial rules and extra-state norms (e.g. found in customary or 'community' courts) are both 'law', on the grounds that both are codes of social thought expressing moralities and social identities 6 . The legal and non-legal relate to each other as competing normative discourses, and there is no inherent categorical hierarchy between them although it was recognized that the state usually enjoys an institutionalized dominance over private moralities 7 . However, the emphasis on the importance and autonomy of social norms rather than positivized rules often entailed a neglect of the colonial state in the writings of midcentury legal anthropologists of Africa such as Schapera (1938). Legal anthropology in the colonial context often characterized state law and informal law as co-existing, but unconnected, spheres of authority and adjudication, which employed different procedures embedded in distinct moralities. Discussions of the relationship between state and informal law often portrayed the two systems as static and isolated, thus fuelling parallel debates about universalism and cultural relativism within human rights. Within Southern African legal anthropology, an isolationist perspective is adopted in Comaroff and Roberts' (1981) influential book Rules and Processes. This characterized 'Tswana law' as a forum for individual negotiation separate from the interventions of colonial and postcolonial legal regimes. Although the authors have moved on to look in greater depth at the place of'customary law' within colonial policy (Roberts 1991), others have maintained a view of customary law as fundamentally controlled at the level of local communities and culture, rather than by colonial and post-colonial states. Gulbrai 1 " : for one, argues that the colonial encounter did noi erode the local political-juridical bodies of the Northern Tswana of the Bechuanaland Protectorate (now Botswana), which were able to safeguard a 'genuinely Tswana normative repertoire'. The stress in Gulbrandsen's (p. 128) study is upon the preservation of'cultural integrity' and the 'autonomy of Tswana jurisprudence' according to culturally specific ideas about gender, hierarchy and space, to the detriment of a thoroughgoing analysis of the transformation of'customary law' by successive states. The anthropological consensus on legal pluralism was directly challenged in the mid 1980s onwards by 'legal centralist' critiques which have argued that collapsing legal and social norms into the same category mistakenly turns all social norms and values into 'law'. This move makes defining law problematical since every norm is defined as 'legal'. Legal pluralism, it is argued by legal theorists such as Brian Tamanaha (1993), loses sight of how the rules of state law are created by specialists within state institutional structures and backed by a monopoly on means of physical coercion. Legal rules and social norms are constructed through quite different processes: positivized, written legal rules are generated by specialists within rationalized bureaucratic structures. Moreover, Tamanaha correctly points out that legal anthropologists never formulated a cross-cultural definition of law that did not somehow rely upon the state 8 . The primacy that anthropologists give to Africans' juridical autonomy has been subjected to a recent critique by colonial historians, who generally take the view that 'customary law' was utterly transformed by, controlled and integrated within the administrative apparatus of the colonial state 9 . Instead of legal pluralism in Africa, there was only' a single, interactive colonial legal system" 0 . The most influential and consistent advocate of the centralist approach to African legal history has been Martin Chanock (1985, 1991) whose work focuses primarily on the place of the legal regime in the policies of the colonial state. He asserts that legal ideology has been a central part of the domination of society by the state. In his materialist reading, colonial and customary law were welded into a single instrument of dispossession and were part of a wider administrative policy of creating and maintaining a particular type of peasantry". Rather than being the product of immutable tradition, 'custom' was manufactured as a legitimating device for maintaining the status quo after dispossession by reinforcing the position of the chieftancy. Pluralism is but a legal fiction, a part of the ideology of British 'indirect rule' in African and Indian colonial territories. According to Chanock (1991 81), 'An indigenous system of land tenure did not exist under colonial conditions, but its shadow was summoned into existence by both colonial and postcolonial states, essentially to retard the establishment of freehold rights for Africans.' In evaluating this debate, my sympathies are broadly with the legal pluralists, since the above centralist critiques have not fully taken into account more recent studies which conceptualize the relationship between state and non-state legalities in increasingly sophisticated ways. We are not forced to choose between the insights of legal pluralists or legal centralists, who have been moving closer to each others' positions in recent years to look at the interplay between state law and local ideas and institutions of justice. Because of the way the question is formulated ('What is the relationship between law and society?'), neither tradition is wholly indispensable. Legal pluralism provides an important descriptive model of society as made up of a diversity of modes of conflict resolution, shattering the myth of state law's unchallenged empire 12 . On the other hand, the centralist argument has identified a logical contradiction: when the domains of the legal and non-legal are fused' 3 , the category of law becomes meaningless, as it includes everything from table manners to national constitutions and transnational convenants of rights. Further, centralists remind us of the Weberian maxim that law is a semi-autonomous discourse created by bureaucratic officials for the purposes of legal domination. Law's norms are positivized ones, often far removed, though not wholly unrelated, to the lived norms of existential experience. It is possible to take a more synthetic view of the creative tension between anthropologists and colonial historians, and build up a version of legal pluralism that is useful for thinking about the interactions between state officials advocating new human rights ideas and practices, and local moralities and legal institutions in African communities. There has been excellent work by social historians on the interactions between Africans and European colonial administrators, each pursuing their own interests, with the result being a 'complex patchwork of overlapping legal jurisdictions'" The work of Sally Falk Moore (1978, 1986) provides a useful starting point, as she has maintained a legal pluralist perspective while keeping the state firmly within the scope of the analysis. In Moore's view, 'customary law' is the product of historical competition between local African power holders and central colonial rulers, each trying to maintain and expand their domains of control and regulation. Law is imposed upon 'semi-autonomous social fields', with uneven and indeterminate consequences. We must not over-estimate the power of law to exert its will, as the connection between native courts on Kilimanjaro and the British colonial high court was 'nominal rather than operational (1986:1 SO).' Moore takes us away from a static view of plural legal systems to look at the historical transformations of regulatory practices, and her work oscillates between small scale events (individual court cases) and large scale social processes (colonialism, decolonization etc.). Moore largely accepts Chanock's portrayal of the profound transformation of'customary law' by colonial rule, yet her more interactionist focus upon the Habermasian 'life world', and peace than in surrounding townships. The small township of Boipatong (population about 41000) is located across the highway from the massive, Dickensian 1SCOR iron and steel works, and wedged between several packing and canning factories. This urban social space contains a heterogeneous linguistic mixture, including speakers of SeSotho, Pedi, Shangaan, Zulu, SeTswana and a class mixture of wealthy professionals, industrial laborers, domestic workers and large number of unemployed It holds a special place in the history of violence in South Africa, as the peace talks between Nelson Mandela and FW de Klerk were broken off in June 1992 after armed Inkatha members, allegedly with police accompaniment, streamed across from KwaMadala hostel and slaughtered over 40 residents of the squatter settlement of Slovo Park, in Boipatong 32 . Residents of Boipatong mediate and adjudicate many disputes with little reference to the national legal system or bodies such as the TRC, which was seen by local people I interviewed as weak, ineffectual and as a 'sell-out'. The low level of reparations and the granting of amnesties to perpetrators strengthened the view that human rights violated local understandings of 'justice'. Instead of appealing to human rights commissions to solve problems of social order, local adjudication occurs through a daily kgotla, SeSotho for 'meeting' or 'court' [plural lekgolla"]. This local forum mainly deals with petty crimes and domestic disputes, and its presence also has implications for the legacy of political violence. In particular, it has protected black councilors who participated in the apartheid local government structure-the Transvaal Provincial Administration between 1988-1990. In 1984 during the 'Vaal Uprising' three councilors had been burnt alive by militant crowds and Esau Mahlatsi, the mayor of Lekoa Council, was murdered in 1993. Boipatong is now unique among Vaal townships in that apartheid era councilors can live free of intimidation. The neighborhood court has a strong patriarchal character. The permanent members of the court are all male and fall into two groups; those over 45, many of whom were former convicted tsotsis or 'gangsters' and younger men between 20 and 30, most of whom were combatants in the armed wing of the ANC, umKhonto we Sizwe (MK). This present kgotla composition is a fusion of two models of township justice-the patrimonial and gerontocratic courts of the 1970s and the 'popular' revolutionary 25 courts of the 1980s, and therefore a combination of two groups who were often violent political adversaries during the height of the liberation struggle in the mid 1980s. The religious dimension is not absent, as the court contains a preponderance of members of the Zionist Christian Church (ZCC), a form of African Christianity which has its main bases in rural areas but also appeals to the urban poor. The court hears many family disputes (Tuesdays and Thursdays are 'Ladies Days'), cases of petty theft, assault, inheritance and unpaid debts. It rarely deals with rape cases, and never hears murder cases. The kgotla draws its legitimacy by claiming to be an expression of traditional authority and customary law. Its participants assert that it is 'tribal law' and thus assert a discontinuity in relation to the criminal courts and international human rights. Unlike the white magistrates' courts the sentencing of the kgotla avoids incarceration if at all possible. It is said that everyone can speak out fully, and anyone can cross-examine the Guillet, D 1998. 'Rethinking Legal Pluralism: Local Law and State Law in the Evolution of Water Property Rights in Northwestern Spain.' Comparative Studies in Society and History. 40(1): 42-70. Gulbrandsen, Ornulf 1996. 'Living their lives in courts: the counter-hegemonic force of the Tswana kgotla in a colonial context.' In 0. Harris (ed.) Inside and Outside the I jaw: anthropological studies in authority and ambiguity. LondonRoutledge Hamber, Brandon and Richard A. Wilson. 1999. 'Trauma, Liminality and Symbolic Closure: the legacy of political violence in South Africa.' in Edward Cairns (ed.) Social Memory in Post-Conflict Situations. Proceedings of the Anierican Psychological Association. London: MacMillan Hayner, Priscilla B.1994 'Fifteen Truth Commissions-1974 to 1994: A Comparative Study.' Human Rights Quarterly Volume 16:597-655. Humphreys, Sally. 1985. 'Law as Discourse' History and Anthropology (]):241 -264. Hunt, Alan and Gary Wickham 1994. Foucault and Ixtw. London: Pluto Press. Huyse, Luc. 1995. 'Justice After Transition: On the Choices Successor Elites Make In Dealing With the Past' Law and Social Enquiry. (1)51-78. Jacoby, Susan. 1983. Wild Justice: the evolution of revenge. New York: Harper and Row. Kleinman, Arthur et al (eds ) 1996. Issue on Social Suffering. Daedelus. Winter issue. Vol.125 (1). Klug, Heinz 1995. 'Defining the Property Rights of Others: political power, indigenous tenure and the construction of customary law.' Center for Applied Legal Studies, University of the Witwatersrand: Working Paper 23. 42 21 This cut off date was later shifted to May 10, 1994 due to pressure from the far right Freedom Front. On the South African TRC, see Krog 1998, Sarkin 1998, and Wilson 1996, 1997b as well as the 1998 TRC report itself 22 Unless, in extreme cases, the Commissioners decided to include specific cases under the rubric of'severe ill treatment'. 23 HRV hearings, Klerksdorp, Monday 23rd Sept, 1996. 24 See Buzzoli (1998) on sacredness in HRV hearings. There is a growing literature on the self and suffering in medical anthropology and the anthropology of violence; see Das (1987, 1994), Hamber and Wilson (1999) and Scarry (1985) and the Winter 1996 (Vol 125, No. 1) issue on 'Social Suffering' edited by Arthur Kleinman, Veena Das and Margaret Lock. 23 The final report judged that a just war had been fought against the apartheid regime, which was confirmed as a crime against humanity. Yet in the body of the report, all abuses regardless of motivation were subsumed within the same blanket category of 'human rights violation' which made no such moral distinctions. 26 'Police 'liar' admits to hitting Biko.' The Guardian (Manchester and London). March 31, 1998. 27 'The truth as it was told.' Weekly Mail and Guardian December 23, 1997. Tutu was explaining why he went to such lengths to allow Winnie Madikileza-Mandela the opportunity to apologize. 28 Klerksdorp Sept 23rd 1996. 29 The case against Kheswa and his gang members collapsed after it was found that the confessions were extracted under torture. Kheswa was later found dead on the road to Sasolburg on 17" 1 June 1993 while in police custody. Several members of his gang similarly died in questionable circumstances. Many observers allege that the IFP gang was killed off one-by-one by their police handlers when they threatened to expose their links with the police. 31 Dennis Moerane was tied to a lamp post and shot dead with an AK-47 on Christmas Day 1996 by an ANC Special Defense Unit as he passed by the Sharpeville library on his way home. 4J 1: There are dilVerences in the numbers reported killed, which perhaps demonstrates the need for a truth commission to clear up disputes over the past. The Waddington Commission declared 42 dead, whereas the TRC is asserting that 46 were murdered. 11 On local courts and 'popular justice' see Burman and Sharf 1990, Goodhew 1993, Pavlich 1992, Scheper-Hughes 1995, and Sharf and Ngcokoto 1990] 34 Cf. Mayer 1971. 15 See Seekings 1995. The 'community' became heavily politicized during the years of anti-apartheid struggle and came to represent a cornerstone in the ideology of local ANC cadres opposed to the authoritarian state. Urban communities are not homogeneous, and 'community justice' is not a static concept but is'historically produced. The concept of'community' in the post-apartheid era is subjected to contestation by a variety of actors including new policing forums, as well as advocates of local justice. "' See Richard Abel 1995. This last point is not better illustrated than in the case of a man condemned to death for killing a fellow hostel dweller who he believed to be a malignant being sent through witchcraft-see Wulf Sachs 1996 The Black Hamlet. 37 In his characteristic rebuttal of religious and human rights values, Friedrich Nietzsche (1969:162) Thus Spoke Zarathmstra speaks of how law attempts to dignify itself through the notion of proportional retribution, all the while keeping its spoon in the pot of hatred: 'The spirit of revenge: my friends, that up to now, has been mankind's chief concern: and where there was suffering, there was always supposed to be punishment.' 38 The creation of the modern dual legal system is usually traced back to the 1927 Native Administration Act. 39 See Alison Renteln 1990 on the empirical prevalence of revenge, documented not only in Africa but also among white working class Americans (Merry 1990). 40 Sally Engle Merry (1990:181). 41 See Humphreys (1985) and Hunt and Wickham (1994). 42 These observations are more generally applicable to narratives on history in Latin America and Eastern Europe.
doi:10.2307/3596429 pmid:10593725 fatcat:lv3vw3f37ffqrabihu7xhx7gvm