Returning to the source: An Afrikanist explains the historical foundations and nature of the South African legal system

“A people losing sight of origins are dead. A people deaf to purposes are lost” (Ayi Kwei Armah in Two Thousand Seasons, 1973, p xiii. My italics)

“How indeed would a living understanding come to those, who have fled knowledge of the source?” (Ayi Kwei Armah in Two Thousand Seasons, 1973, p xvi. My italics)

 

This short article endeavours to “return to the source” of the current South African legal system. It will demonstrate from an Afrikan-centred perspective, and in terms of the Afrikanist tradition as historically exemplified by Muziwakhe Lembede, Mangaliso Sobukwe and Peter Raboroko in The Africanist Case, the “proper” genealogy and evolution of this system (the “improper” one being the one “imaginatively produced” mainly by white settler scholars which is “overrepresented”, to deploy Sylvia Wynter’s locution/parlance in How We Mistook the Map for the Territory as “objective” and “valid”, at white settler “institutions” of higher learning, which characteristically elides/omits Conquest and its attendant structural ramifications). This article is informed by the “radical” idea posited by Audre Lorde in Sister Outsider, that “ the masters tools (the ruling legal paradigm of the conquering white settlers and its constitutional framework) can never dismantle the master’s house” (white settler State and society). And that both the master’s tools and house must be “dismantled” by the Indigenous conquered people, by “returning to the source” as Amilcar Cabral puts it in Return to the Source.

Because the South African legal system is complex, this article will refer briefly to its fundament; the white settler constitutional framework. This framework is regarded in this article as a subtle and perilous attempt at a legal sophistication and consummation of unjust Conquest originally “ungoverned by law and morality” as Mogobe Ramose states it in I conquer, therefore I am a Sovereign, but based on violence. The notion of “legal consummation”, that is, perfecting Conquest through law, is derived from Three Hundred Years by Hosea Jaffe. I now turn to “restore” Conquest and its concomitant structural ramifications to the “universe of juristic facts” to deploy Ramose’s phraseology above.

Violent Conquest as the originary “Catastrophic confrontation” is the material historical foundation of the South African legal system and it inaugurated the legal “paradigm antagonism” (which masquerades as a “healthy” “legal pluralism”) which is the foundational nature of this system. A Post-Conquest Afrikan legal system premised on the autonomy and supremacy of Afrikan Law can only be attained through a counter “Catastrophic confrontation”. Because the originary “Catastrophic confrontation” (which eventuated in the loss of sovereign title to territory, autonomy and supremacy of Afrikan Law) initiated by the conquering white settlers preceded and proceeded outside the white settler constitutional framework, its counterpart (counter “Catastrophic confrontation”), this time spearheaded by the Indigenous conquered people (which must restore sovereign title to territory, autonomy and supremacy of Afrikan Law), must be extra-constitutional, that is, it must proceed outside the current white settler constitutional framework. Put simply, it must be regarded by the Indigenous conquered people as “extra-legal” and not “illegal”, because by proceeding outside the terms and “guidance” of the ruling legal paradigm and its current framework, the latter will be “disqualified” as a “judge”. The originary “Catastrophic confrontation” was an “invitation” on the part of the conquering white settlers to the Indigenous conquered people to “reply in kind” which was gladly “accepted” by our living-dead. This postulation is not facile and romantic but is philosophically derived from the revolutionary “heritage” of the living-dead (which is a memory that must be used as a weapon by the living), to enlist Tsenay Serequeberhan in Our Heritage and The Hermeneutics of African Philosophy, which they bequeathed to the living and the yet-to-be-born. This is what Cheik Anta Diop in Great African Thinkers stated in this regard, “A people who lose their historical memory becomes a very fragile people. They regress. It is historical memory that permits them to be a strong people”. Thus the living must “return to this heritage” to be strong enough to “avenge the spirit of the ancestors” to quote Marimba Ani in Yurugu.

The fundamental point of departure in this article is that before Conquest (which resulted in the sovereign title to territory of Abantu/Batho being forcibly usurped by Abelungu/Makgowa) which began in 1652, Afrikan Law based on Isintu/Setso of Abantu/Batho was the supreme law of the land second to no one. This Indigenous supreme law of the land is an “imaginary institution” engendered by an Afrikan “Social Imaginary” which “instituted” Afrikan society since time immemorial. Afrikan Law (Molao/Umthetho predicated on Ubuntu/Botho) was on an autonomous evolutionary path until it was “disrupted” by white settler Conquest since 1652.White settler Conquest eventuated in the “subjection” of Afrikan Law (attempts at its racist distortion and degradation such as being renamed and invented as “Customary Law”, both the so-called “living and official”) to the law of the conquering white settlers.

”Customary Law” is a racist “work”/”imaginary institution” of a white supremacist settler “Social Imaginary”, which while “instituting” a white settler society through Conquest “overrepresented” European/white settlers’ Law (Roman-Dutch law and English common law) as superior and universal (worthy of being studied at European/white settlers’ “institutions” called universities). This Conquest resulted in the “imposition” of European cultural reality and its supporting institutions, at the expense of Afrikan cultural reality and institutions which preceded the former by thousands of years ( a very significant fact to accentuate which Ifi Amadiume denominates “historical depth” in Re-inventing Africa) and which bolster this reality for the survival and prosperity of the Indigenous people.

Conquest by white settlers is the condition of possibility for the current “legal pluralism” of the South African legal system. In other words, but for Conquest Afrikan Law would have evolved on its own terms and retain its autonomy and supremacy. This “legal pluralism” is not a pluralism of respectful and equal legal paradigms, but a “paradigm antagonism” between the ruling legal paradigm of the white conqueror and the subjugated legal paradigm of the Indigenous conquered people. It is perhaps banal except for purposes of accentuation to state that these legal paradigms are premised on dissimilar philosophies, cultures, values, world-views and cosmologies and pursue incompatible power interests. And this fact accounts for this “antagonism”. This legal “paradigm antagonism” is a manifestation of “the primary antagonism” of Conquest which resulted in the structural correlation (unequal power relation) between its constituent elements; the white conquering settlers and the Indigenous conquered people. This “legal pluralism of Conquest” misleadingly appears to be a “healthy” mutual coexistence of two legal paradigms (to employ Sylvia Wynter’s phraseology above, this “legal pluralism” is the map/mere symptom, while the “primary antagonism” of Conquest and the concomitant legal “paradigm antagonism” are the territory/ the real cause or problem, in any event this “antagonisms” resulted in and resulted from the loss of title to territory). A “healthy” mutual coexistence of these two legal paradigms is impossible, because the ruling legal paradigm of the white conqueror is embedded in a racist European culture and world-view. The resolution of Conquest through the restoration of sovereign title to territory, outside the white settler constitutional framework, is the only way to restore the autonomy and supremacy of the legal paradigm of the Indigenous people to the exclusion of the legal paradigm of the white settlers. In other words, the two legal paradigms are “irreconcilable” and are thus incapable of reaching a higher synthesis (in the Hegelian sense in the Phenomenology of Spirit), one must give way to the other, without any form of naive entertainment of the illusion of “mutual recognition”(just as the present writer holds firmly the view that Abantu/Batho and Abelungu/Makgowa are “irreconcilable”, notwithstanding the farce of the TRC and the “racist romance” of the Rainbow nation which are meant to alleviate the anxiety of Abelungu/Makgowa about Abantu/Batho and thus maintain white supremacy). The cultural and world-view differences and contradictory power interests of Abantu/Batho and Abelungu/Makgowa, and of their two legal paradigms, are the fundament of their “antagonism” and “irreconcilability”.

When white conquerors “arrived” in Azania, which they renamed “Zuid Afrika/South Africa” (as per racist white power to define, a symbolic “moment” of Conquest), they were already immersed in a power-driven and control-seeking asili of their European culture and materialistic world-view (asili is a germinating seed of a culture as Marimba Ani calls it in Yurugu). Their ruling legal paradigm is imbricated with “internal racism” (which in Azania reached its apex with the so-called South African war/Anglo-Boer war) of the Europeans which Cedric Robinson traces to the medieval era in Black Marxism. Traces of the history of the power-driven asili of European culture and a world-view premised on oppositional dualism and the racism that originates within European civilization itself are explicable through Cheik Anta Diop’s Two-cradle theory (designated as such by Vulindlela Wobogo) in Cultural Unity of Black Africa. According to Diop, the Indo-Europeans of the Northern cradle were conquest-driven nomads characterised by xenophobia and violence; the “governing” traits of Aryan culture and world-view. The racist “xenophobia” of the contemporary white settlers (as the descendants of these Indo-Europeans and beneficiaries of Aryan culture and world-view) is “arrogant” as it shamelessly expresses itself in a “foreign” land (our Azania).

This explains why Dutch settlers call themselves Afrikaners, while fragmenting and classifying the Indigenous people as the “conquering” Bantu tribes (this is a white settler nationalist strategy of denying Afrikan nationalism and our national identity in order to compensate for the white settlers’ racial and numerical inferiority as Francis Cress Welsing explicated it in the Isis Papers) who “came to” Zuid Afrika (now South Africa, which is their racist invention) “from somewhere” in Afrika, which these white settlers regard as “their fatherland” in terms of Afrikaner nationalism as explained by Dunbar Moodie in The Rise of Afrikanerdom (a racist delusion and impossibility of being indigenous like/than the Indigenous people). This white settler nationalist strategy not only fragments the Indigenous people but fragments the Indigenous territory as well. There is “Afrika”, a “cartography of uncivilization” and “Zuid Afrika” the “fatherland” of the so-called “great trekkers” who were simply extending “discovery” from the Cape, their initial point of entry, into the interior under the disguise of “liberating” themselves from British domination (which was nothing but an extension from Europe into Afrika of European “internal racism”)

Let us briefly trace the genealogy and evolution of Conquest which laid down the foundation for the hegemony of the ruling legal paradigm of the conquering white settlers. While we do this, it is important to bear in mind that the ruling legal paradigm of the white settlers is based on Conquest and that it is an extension of what Robert J Miller in SYMPOSIUM The future of international law in indigenous affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States, appellates “international law of colonialism” and its attendant doctrine of Discovery. Conquest traces its genealogy and evolution to “international law of colonialism”. The first stage of this evolution is what I denominate the “papal period”. The predominant trait of this period is the issuing of papal bulls. European popes issued bulls to divinely sanction the conquest of what they designated “non-European infidels, pagans, savages, and enemies of Christ”. Perhaps the “eminent” bull issued during this period is Romanus Pontifex as explicated by Valentine Mudumbe in The Invention of Africa. This bull was issued in 1436 (way before 1652 when the Dutch settlers “arrived” in “South Africa”) by Eugenius IV.As Robert J Miller exposits, this bull authorised European nations to “invade, search out, capture, vanquish and subdue all…pagans and place them into perpetual slavery and to seize their property.”(My italics). The second stage is the “secular period”. It is during this stage that the later white conquering settlers of “South Africa” featured predominantly, that is both the Dutch and English.

 

 

We have above alluded to the doctrine of Discovery. According to Robert J Miller above, this doctrine comprises of numerous elements. For the purposes of this short article the present writer will distil only four of these elements. These elements are “actual occupancy and current possession, native title, civilization and conquest”. Relying on Miller above, we will now briefly explain the import of these elements by demonstrating how they are germane to our present genealogical “exploration” of the South African legal system.With regard to the element of actual occupancy and current possession, “to turn first discovery claim into a recognised title, a European country had to permanently occupy and possess discovered lands. This was usually accomplished by building forts or settlements”. As far as native title is concerned “after first discovery, indigenous nations were considered by European legal systems to have lost full property rights in their lands. They only retained the rights to occupy and use the lands”. Civilization as another element meant that “European ideas of what constituted civilization and the belief of European superiority over indigenous peoples were important parts of Discovery. Europeans thought that God had directed them to bring civilization, education, and religion to natives and exercise paternalistic and guardian powers over them”.

 

The fundamental pivot of our discussion is Conquest since 1652, which was a concretization of conquest as an element of the doctrine of Discovery through which “Europeans could acquire title to indigenous lands by military victories”. In 1652, Van Riebeck the Dutch “discoverer” and his fellow “discoverers” (the founding fathers of  a nation of “they, through-whose-ears-pass-the-rays-of-the-sun”/”the race of the glowing ears”, to quote Mazisi Kunene in Emperor Shaka the Great) decided to “settle” on Izwe Lethu (thus, began Afrika’s time of trouble, to echo the great John Henrik Clarke, the Conquest of Isizwe/Sechaba of the Palm race/Indigenous people). To prevent other Europeans from occupying Azania these Dutch “discovers” “actually occupied it and ensured its current possession”. These Dutch “discovers” scored “military victories” against the Indigenous people (who replied in kind), in unjust and immoral wars, they hypocritically called “defensive wars”. Azanians wondered then and still wonder what these Dutch “discovers” were “defending” since there was no land and cattle on their ships (but mainly weapons of physical and cultural warfare such as guns and “Christian bible and cross”, a very lethal and efficacious combination as far as the “institution” of global white supremacy is concerned) of their criminal campaigns euphemistically designated “journeys of discovery.” Van Riebeck regarded the Indigenous people as “lazy and stinking dogs” which were in need of “civilization” (European cultural reality and its supporting institutions)

Land is a foundation of power. “Power begins at the level of conception” to echo Kwame Ture. One is, fundamentally speaking, powerful to an extent that one is in control of one’s definition of reality; predicated on one’s culture, law, world-view, values and interests and supported by concomitant institutions. Conquest eventuated in the “imposition” of European cultural reality and its supporting “imaginary institutions” as “imagined productively” by the conquering white settlers (to paraphrase Cornelius Castoriadis in Imaginary Institution of Society and Nicolas Veroli in Imagination and Politics; A Study in Historical Ontology). The white settler constitutional framework is a settler extension of the “international law of colonialism” as “imagined productively” by these white settlers in “South Africa”.

The white settler constitutional framework is a white settler “imaginary institution” which was used to “institute” and maintain this “institution”of white settler society. It is an “imaginary institution of Conquest” thus serves to sustain this Conquest through the ruling legal paradigm of the white conqueror which is “overrepresented” as value and culture-neutral and thus of universal benefit (resulting in the “loud nonsense” such as “our Constitution” and “the best Constitution”). This framework is an “institution” of a racist white settler “Social Imaginary” whose fundamental purpose is to supplant Indigenous autonomy (Indigenous people’s self-rule and regulation since time immemorial) with white settler heteronomy (rule and regulation by white settlers, a time-bound historical accident, soon to be negated).

The first white settler constitutional framework was the Cape 1853 one (all the later constitutions are mere reconfigurations of this one, with the same fundamental objective of sustaining Conquest, their material foundation), which “included” the Indigenous people who accepted European cultural reality and its institutions, the so-called “civilized natives”, the “culturally misoriented” to quote Kobi Kambon in The African Personality in America; An African-centred Framework. Conquest began in 1652 with the violation of Afrikan Law as the supreme law of the land (this explains why today “customary law” is “subject” to the current constitution, which regards itself as the supreme law of the land) when the land was “actually occupied, to ensure it current possession”, during and as result of “white settler defensive wars”.

The Afrikan warrior nationalists/primary resisters (our living-dead, who unlike the so-called “civilized natives” were regarded by the white conquering settlers and their converts/Amakholwa/Badumedi as “uncivilized pagans and savages”), were during this period in the midst of Indigenous defensive wars of liberation to reverse Conquest. They waged these Indigenous defensive wars of liberation outside this white settler constitutional framework (because unlike their counterparts above, they did not “believe in” this framework and the European cultural reality which undergirds it), but on the basis of Afrikan cultural reality and its supporting institutions as they “productively imagined them” and “believed in them” as we should today. This is how they wanted and would want Azanians today (in terms of triadic ontological spiritual communion between the living-dead, the living and the yet-to-be-born, as the struggle for liberation is intergenerational) to resolve “the primary antagonism” of Conquest and its concomitant legal “paradigm antagonism”, because this entire framework is not “our own liberator” .It reflects what Kush Ngubane critiques in Conflict of Minds, namely, a racist situation whereby white settlers prescribe a destiny for the Afrikans whom they have always regarded as children/child race and “the lie that as a herrenvolk, the Boers had been anointed to lead the darker and therefore lesser creatures of God to salvation and civilization”, to quote Don Matera in Memory is a Weapon. This is so, notwithstanding the “loud nonsense” of expropriation with or without compensation (because Abantu/Batho know that “Afrika lefase la bo ntat’arona le tserwe ke makgowa” as Letlapa Mphahlele puts it in Child of the Soil) which accepts this framework “as if” it is a tool that can “liberate us”.

Steve Biko captures our sentiment regarding this framework, when he states in I Write What I Like, in relation to the Bantustan idea, that “black people reject this…it is a solution given to us by the same (white) people who have created the problem…and blacks are beginning to rid their minds of imprisoning notions which are the legacy of the control of their attitudes by whites”. Aime Cesaire in Discourse on Colonialism further buttresses our sentiment by positing that “in dealing with this subject (colonialism, in our case the white settler constitutional framework to be more specific) the commonest curse is to be the dupe in good faith of a collective hypocrisy (of the white settlers and their “mis-governing” “civilized natives”) that cleverly misrepresents problems, the better to legitimize the hateful solutions provided by them” This is how the brilliant Ayi Kwei Armah in Two Thousand Seasons corroborates our sentiment:

“For there are ears straining against the loud nonsense of the destroyers(whites),ears that have heard all the sweet and easy sounds of death and found them false”(Armah 1973, p xvii. My italics)

Because after all:

“Of our first home we have more certainty. That it was here on this same land, weknow. This land is ours, not through murder, not through theft, not by way of violence of any trickery. This has always been our land. Here we began. Here we will continue even after the thousand season’s scattering and the thousand season’s groping through the white death sometimes openly, often covertly ,seductively now, brutally at other times , changes means, but always seeks one end; our extermination” (Armah 1973 ,pp. 3-4.My italics)

And finally:

Remember this; against all that destruction some remained among us unforgetful of origins…”(Armah 1973, p xv. My italics)

 

By Masilo Lepuru

 

 

 

 

 

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