Time and the notions of Justice and Law: A View from Azania

“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”. (Cheikh Anta Diop, in Great African Thinkers)

 

“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”. (Steve Biko, in I Write What I Like)

 

 

 

This essay will argue that the Indigenous conquered people’s idea of time is the basis on which they conceive of the idea of justice. The European conqueror’s notion of time is one based on a linear notion of time. What this means is that the European conqueror views time as a process of progression from one point to another point. This is the European conqueror’s idea of time which is abstract and “rational”. The abstractness and the “rationality” of a linear notion of time lacks  the idea of symbolic connection between the past and the present, as what the European conqueror observes is a serial and successive motion towards an unknown future. The basis of this linear time is the European conqueror’s world-view which differs from that of the Indigenous conquered people which is based on the Afrikan worldview that is fundamentally spiritual.

 

The European conqueror’s world-view is one based on binary-opposition. This binary-opposition is not complementary. It is through this binary-opposition that the European conqueror is able to fragment time and construct the ideology of progress on which the myth of Rationality is based. For the European conqueror there is no relationship between the natural and the supernatural which is not the case as far as the Afrikan worldview and epistemology are concerned, as confirmed by Barry Hallen and Kwasi Wiredu[i]. This leads the European conqueror to construct a form of knowledge through which he can control and dominate nature and that which is regarded by him as still part of nature such as the Indigenous conquered people. Hegel captured this racist sentiment when he dismissed the Afrikans as part of nature and thus not part of “world history” as he imagined it. By being regarded as still part of nature, the Indigenous conquered people are categorised as “uncivilised”. This is because Marx considered as one of the criteria of “civilization” in the European sense of course, the technological conquest of nature. The Afrikan worldview on the other hand advices against conquest of nature, but rather promotes harmony with it as the source of life.

 

The relationship between the natural and the supernatural can only be conceived on the basis of complementary binary-opposition which characterises the Indigenous conquered people’s worldview which seeks harmony with humanity and nature. The European conqueror’s worldview prohibits the inclusion and connection with the supernatural; it regards the connection thereof as “irrational” and “primitive” and not conducive to the passion for control and domination which characterise the European conqueror’s culture and “civilisation” in general and its overt manifestation in scientism (obsession with science which is regarded as the only rational way to understand reality and gain knowledge).

 

This is the basis on which the idea of abstract and “rational” time is constructed and endowed with the ideology of progress. Progress here, for the European conqueror implies a movement away from the “irrational” and the “primitive” in terms of Evolutionism as promoted for instance by Anthropology, which ultimately leads to the breaking of the connection between the natural and the supernatural. In a nutshell, the European conqueror’s notion of time is based on his worldview which rejects the connection between the natural and the supernatural, by regarding it as ‘irrational” and “primitive” and thus attempts to construct a linear time which he regards as progress-driven and therefore rational. This is as a result of the European conqueror’s materialistic worldview which strips the universe of spirit; which escapes his quantitative/mathematical idea of reality. In this sense that which is regarded as still operating differently from the European conqueror’s linear time, which is abstract and rational, is subjected to violence and destruction unleashed by his Rationality which seeks to transform everything into its own image.

 

The Indigenous conquered people on the other hand conceive of time very differently from how the European conqueror conceives of it. The former’s notion of time is fundamentally, but not completely, circular and symbolic in nature. The symbolic and the circular time of the Indigenous conquered people is based on their worldview which is premised on binary-complementarity. The metaphysics on which they derive their notion of time is holistic in nature. What this means is that, for them, there is a cosmic connection between the natural and the supernatural. Thus their notion of time is informed by this cosmic connection between the natural and the supernatural. This symbolic nature of their notion of time involves a constant communication and relationship between the natural and supernatural, that is, the yet-to-be-born, living and living-dead  who were also subjected to the unjust and immoral conquest, violent destruction, control and domination.

 

The symbolic nature of time of the Indigenous conquered people is based on the “ontology of invisible beings” which implies the connection and acknowledgement of the influence of the supernatural entities such as ancestors, spirits and Gods of the Indigenous conquered people. Thus, the connection between the ancestors of the Indigenous conquered and the living conquered people is always maintained. This is precisely how the Indigenous conquered people conceive of justice. For the living Indigenous conquered people, justice involves the memories of the historical injustice the Indigenous conquered’s ancestors suffered at the hands of the European conqueror.

 

The possibility of the re-membering of the memories of the Indigenous conquered’s living-dead/ancestors in the conceptualisation of justice is informed by the symbolic nature of their notion of time. Thus, for the Indigenous conquered people the ideology of  progress is a colonial strategy used by the European conqueror to get rid of the memories of historical injustice and thus to break the connection between the Indigenous conquered living and their living-dead/ ancestors. The re-membering of the memories of the historical injustice suffered by the Indigenous conquered’s living-dead/ancestors is not probable in the abstract and rational linear time which grounds the European conqueror’s notion of law. If these memories of historical injustice are ever referred to, they are often disrespectfully treated as a “past event” of misguided resistance to “civilization” or collateral damage of the “introduction” of this “civilization”. This is why even the current white beneficiaries of white settler colonialism can merely dismiss this “past event” by claiming with shameless confidence that “they were not there” (they never occupied that point in time, but only have to do with the current point in time which is disconnected from the former) and thus have nothing to do with it, despite benefiting daily at the expense of the Indigenous conquered people from the very system of white settler domination which is based on this “past event”. They will continue to enjoy white privilege precisely because as Patrick Wolfe[ii] argued, white settler colonialism is not an “event” but a “structure”, thus it persists over time.

 

In this abstract and rational linear time, there is obsession with progress which leads to the legal insignificance of what happened to the Indigenous conquered’s ancestors as the European conqueror’s time marches forward to an unknown future, but that unknown future is assumed to be a “better” one. The logic behind the Truth and Reconciliation Commission was based on this white settlers’ notion of time, which understandably led to their “forgiving” of their “past brutalities” against the Indigenous conquered people on the basis of whose notion of time this “forgiving” is unjustifiable.  This also explains the immoral tendency among the European-conqueror/current-white-beneficiaries-of-conquest and their colonial ideas in referring to the historical injustice of the Indigenous conquered people’s loss of sovereign title to territory and epistemicide as “past injustice”, “wrongs of the past” and “past discrimination”, and the living Indigenous conquered people as “previously disadvantaged groups/people”.

 

This is the basis on which the European conqueror can conceive of the passage of time as capable of granting him the ownership of the land taken away from the Indigenous conquered people’s ancestors during unjust and immoral conquest. For the European conqueror, the passage of time can “bring into extinction” the legal right of the Indigenous conquered living to the land of their living-dead/ancestors. This is the substance of the European conqueror’s Rationalistic/reason-obsessed jurisprudence which is markedly different from the Indigenous conquered people’s Afrikan law and jurisprudence; which are informed by Ubuntu as Ramose so convincingly demonstrated[iii].

 

The Indigenous conquered people, in this case, specifically the Bantu-speaking people who were deprived of their land, hold that molato ga o bole. This Ubuntu legal maxim, in a nutshell, argues, in this context, that time cannot grant the European conqueror a legal right over the land which was taken away from its rightful owners since time immemorial, namely, the Indigenous conquered’s living-dead/ancestors, in unprovoked and unjust wars of colonisation since 1652. This maxim also captures the argument that memories inform the Indigenous conquered people’s notion of justice. This means that despite the passage of time since the dispossession of land of the Indigenous conquered’s living-dead/ancestors, the Indigenous conquered living will not forget that a historical injustice was committed against them and their living-dead/ancestors, despite attempts on the part of the European conqueror to make the Indigenous conquered living break their symbolic connection and communication between them and their living-dead/ancestors.

 

The attempts at the breaking of the symbolic connection and communication between the Indigenous conquered living and their living-dead/ancestors through the rationalisation of the law is pointless as far as the use of “memory as a weapon” is concerned, for the Indigenous conquered people’s struggle for a Post-conquest Azania. The Indigenous conquered people will always maintain the symbolic connection and communication between them and their ancestors, and they do this on the basis of what Ramose designates “triadic structure[iv]”. This, according to Ramose, is composed of the living, the living dead and the yet-to-be-born and the accompanying communication between them. This is in accordance with the Afrikan worldview which is fundamentally spiritual. Thus, the search for justice is based on this “triadic structure” as Ramose calls it. Ramose posits that, “justice is determined by supernatural forces. Their determination seeks to restore harmony and promote the maintenance of peace. This determination by the supernatural forces is consistent with the metaphysics of Ubuntu law. This consists in a triadic structure of the living, the living dead (supernatural forces) and the yet-to-be-born. This metaphysical structure ensures communication among the three levels of being. On the basis of this structure, justice determined by the supernatural forces is declared on their behalf by the living who are in authority[v]”.

 

The 1996 constitution upon which the so-called post-apartheid “new” South Africa is based is another attempt at breaking the symbolic connection and communication between the Indigenous conquered living and their living-dead/ancestors through the “property clause” which is found in section 25 of the 1996 constitution. This is not to be interpreted as implying that the present writer is merely concerned with a mere aspect of this constitution, but as it can be gathered throughout this essay, we are of the view that the entire constitution is a product of racist and violent European Modernity which takes the form of white settler colonialism in South Africa. Such a narrow critique which limits itself to one aspect to the exclusion of the “totality” we believe is tantamount to what Cornelius Castoriadis calls “legal cretinism[vi]”. The focus on section 25 in this article is informed by the idea that this particular section captures the fundamental problem of/in South Africa, which is territory/land and the legal technicalisation of issues of historical injustice. This clause, among other things, demands that the restoration of land to the Indigenous conquered living be accompanied by compensation to the white settlers who acquired it through unjust conquest without compensation. Put simply, this section embodies what Robert J Miller calls the doctrine of Discovery[vii]; as its underlying assumption is that due to unjust conquest since 1652 by the Dutch and British “discoverers”/white-settlers the Indigenous conquered people are no longer the rightful owners of the their territory since time immemorial, but are now mere “native occupants” at the mercy of the white settler legal owners whose property is to be expropriated. It is “as if” the “native occupants”  “now” want to be legal owners. This explains why when these “native occupants” “occupy” private property mainly of white settlers are misleadingly labelled as “illegal occupants”/squatters and are “subjected” to evictions in terms of white settler law informed by white settler history which distorts their memories and identity just as it distorted their law by renaming it “customary law” and “subjecting” it to the supremacy of the current constitution. The present writer rejects this interpretation of the clause as contradicting the Ubuntu legal maxim of molato ga o bole; which is the basis on which extinctive prescription, as per the European conqueror’s law and jurisprudence, is rejected.

 

At any rate, the present writer must emphasise his hostility to the terms of this section 25; namely, expropriation with/without compensation. These terms amount to what Ayi Kwei Armah correctly calls the “loud nonsense of the destroyers (whites)”[viii]. In terms of the Azanian tradition’s critique of the current constitution, a constitution which is rejected in its entirety, the fundamental problem is one of restoration of sovereign title to territory and not expropriation in whatever form. This is part of the Azanian tradition’s rebellion against the white settler’s power to define a reality in which the Azanians are regarded as not human and without notions of law and governance; a “child race” in need of white settler colonial trusteeship.

 

The entire current constitution and its predecessors of which it is a mere reconfiguration are products of conquest, that is, their condition of possibility for existence is land dispossession. And as manifestations of epistemicide, their fundamental objective is to preserve white settler colonialism, both materially and epistemologically. The name South Africa is based on, and represents, loss of sovereign title to territory by the Indigenous conquered people; thus, the current constitution of South Africa is a legal mechanism which sustains conquest and it is not a legal framework which marks a “structural rupture” with 1652. Thus both the white settler colonial name South Africa and the current constitution indicate a material and epistemological symbiotic relation of what Francis Cress Welsing calls racism/white supremacy[ix] in Afrika since the “catastrophic” coming of the Europeans.

 

Thus, because molato ga o bole, the move to the “new” South Africa is not an authority on which the European conqueror can argue that acquisition of the legal right to the land is attained “constitutionally”. What this means is that section 25 is an “injustice clause” as it is a colonial legal mechanism through which historical injustice of land dispossession is “constitutionalised” based on the white settlers’ notion of linear time. This section 25 captures clearly the white settlers’ jurisprudence and notion of time. The intimate connection of these two is captured by the white settlers’ notion of extinctive prescription which is the exact opposite of molato ga o bole. In terms of this notion, if one loses possession of a certain property over time one eventually loses the legal right over this property. Thus, because the Indigenous conquered people lost possession of their territory during the time of wars of white settler colonialism and its legislative consolidation through Acts like The Glen Grey Act and The Land Act of 1913, they have lost sovereign title to it which is now vested in the white settlers who are now regarded as the rightful owners whose property is regarded as expropriated and therefore the conditions of with/without compensation. This section avoids the fundamental question of historical justice; namely, when and how did white settlers come to be property owners whose property is assumed to be expropriated?

 

Our submission in terms of the “black radical tradition” (Afrikan nationalist tradition) as opposed to the “black liberal tradition” (Non-white assimilationist tradition) in this regard is that the fundamental question is not one of land redistribution but one of restoring sovereign title to territory. Once sovereign title to territory is restored, then, the Indigenous people as the rightful holders of sovereign title to territory since time immemorial can “re-enjoy” one of its privileges; namely, the “absolute” collective/national right to decide what to do with their land without white settler colonial “guidance”. Once the entire territory (as the foundation of Black Power) is restored to them and by them, they can then exercise Afrikan national self-determination by collectively, as a nation, determining on their own terms, how and to whom the land must be “redistributed”. After all, power is the ability to include and to exclude on one’s terms and in one’s interests. Thus to speak of land redistribution before the restoration of sovereign title to territory is to put the cart before the horse, so to speak. First the Azanians in terms of Race-first Afrikan nationalism must resolve, through a Chimurenga, the fundamental antagonism of South Africa as an unjust conquest-based white settler State, restore a Post-conquest Azania in its place and then address issues of belonging and constitution of a Post-conquest Azanian nation which are usually categorised as “nation-building”. This Post-conquest Azania should be faithful to its meaning, namely, “the land of the blacks”, this time “only for the Afrikans, those at home and abroad”. This is because Race-first Afrikan nationalism as the ideology of nation-building should be global in scope – if it is to avoid being a reactionary force and to defeat global white supremacy as one of its enemies.

 

This is why section 25, which contradicts the Ubuntu legal maxim of molato ga o bole, is a colonial legal obstacle which prevents the transition to a Post-conquest Azania in which the rightful owners of land, namely, the Indigenous conquered living will have restored their “absolute” legal right to the land of their living-dead/ancestors. The monetary demands of this ‘injustice clause” are irrational and immoral as they defeat the Afrikan nationalist objective of the restoration of Black Power of the Indigenous conquered people who are currently highly underprivileged because of, among others, the unjust dispossession of their bio-culturally important resource; namely, the land and its mineral wealth. The Indigenous conquered people cannot, without self-contradiction, be expected to pay for what, without a doubt, belongs to them since time immemorial. To paraphrase Ayi Kwei Armah, the Indigenous people know with a great degree of certainty that “here they began and here they will continue….”[x]

 

By way of conclusion it is important that we emphasise the fact that the fiction of the “transition” to the post-apartheid “new’ South Africa is based on the lie of progress, which, in this case, implies that the movement from the point of apartheid to the point of “post”-apartheid democracy, as per the linear time of the European conqueror, implies an improvement. Besides, the fundamental problem was never apartheid, which was just an overt manifestation of white settler colonialism, but conquest since 1652 which is the foundation of white settler colonialism in its different manifestations such as segregation, apartheid and post-apartheid. However, this “transition”, which was nothing but the reconfiguration of white supremacy, has been demonstrated to be an illusion which is based on the celebration of Black economic empowerment (and not Black Power) and Rainbow nation in the midst of South Africa being subject to Euro-American Imperialism under Neoliberal free market fundamentalism and “business-managed democracy” as argued by Sharon Beder[xi].

 

The urgent need for De-colonization in the form of the restoration of sovereign title to territory and epistemological autonomy, which will restore Black Power to the Indigenous conquered people, is possible through the rejection of the entire current constitution with its ‘injustice clause”. The Indigenous people can then restore their material and epistemic autonomy beyond European Modernity and its Rationality which has victimised them in a number of ways as discussed above. Until then, it is not yet Uhuru and thus the urgent call for another Chimurenga for a Post-conquest Azania.

 

 

 

Works Cited

 

  1. Hallen and Wiredu, “Science and African Culture,” 1.
  2. Wolfe, “Settler Colonialism and the Elimination of the Native,” 388.
  3. Ramose, “African perspective on justice and race,” 7.
  4. Ramose, “African perspective on justice and race,” 5.
  5. Ramose, “African perspective on justice and race,” 5.
  6. Castoriadis, “Imaginary Institution of Society,” 17.
  7. Miller, “Symposium, The future of International Law in Indigenous Affairs,” 851.
  8. Armah, “Two Thousand Season,” xvii.
  9. Welsing, “The Isis Papers,”ii.
  10. Armah, “Two Thousand Seasons,” 3-4.
  11. Beder, “Business-managed democracy,” 1.

 

By Masilo Lepuru

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