“In our land the law of the nation reigns supreme.” (Mazisi Kunene)
Francis Cress Welsing argues that “if you don’t understand white supremacy, everything else that you think you know, will only confuse you”. In implicit agreement with this fundamental argument, Wade Nobles further argues that power “is the ability to define reality and to impose it on other people as if it were their own definition”. Thus, in this context, white supremacy and white power are the fundamental points of departure. The Settler-colonial emergence of “customary law” will be explored within this context. It is important at this early stage of this critical exploration to understand the significance of the historicization of creation of categories. The category “customary law” only emerges with the advent of Settler-colonialism. Thus, “customary law” is not a natural phenomenon but a historical creation. As a historical creation it evolves out of Settler-colonial Social Imaginary (a racist one at that due to the culture of the white settlers). In other words, “customary law”, as we know it, is not a historical creation emanating from the African Social Imaginary.
When one critically explores the issue of “customary law”, the fundamental question to pose is: what is the condition of possibility for its existence? In our context, the unjust Conquest of the indigenous people is the condition of possibility for its existence. White supremacy is a global system of white domination and in “South Africa” it takes the form of Settler-Colonialism which began in 1652. “Customary Law” and “South Africa” are racist products of white power to define. Conquest manifested itself in two forms, namely, epistemicide and land dispossession. Epistemicide simply defined is the violent attempt by the settlers to distort and obliterate the culture, values, law and knowledge of the indigenous people conquered in unjust wars of colonization, and the attendant imposition of reality as defined by the settlers. This is a reality created by the racist “Social Imaginary” of the white conquerors.
“Customary Law” came into existence as a result of this process of epistemicide. At its very core, the issue of “customary law” is intimately intertwined with the question of “Izwe Lethu”. This is because Conquest and Settler-colonialism create a structural relation (a relation of unequal power) between the white conquerors and the indigenous conquered people. The fundamental antagonism of Conquest operates at two levels, namely, the material level, whites settling on the land of the indigenous people as well as at the epistemic level, settlers imposing their law(s) through a violent process of settlement.
It is important to understand that “Izwe Lethu” and “the land is ours” are not necessarily ideologically equivalent. “Izwe Lethu” is embedded in the Africanist tradition which regards the land as belonging solely to the indigenous people conquered in unjust wars of colonialism by white conquerors (an irrefutable historical fact). “The land is ours” while seeming like an “English translation” of “Izwe Lethu” can, in a subtle way, promote the Charterist tradition, which in terms of the Freedom Charter (a product of white power to define, as it was not drafted by the indigenous people but by self-appointed white trustees) regards the land as belonging to those who live in it; both the white conquerors and the indigenous conquered people (an obvious historical absurdity).
It is through Conquest at the epistemic level that the white conquerors impose European “customary law” (this is a critical reversion of a racist white projection, returning the projection to its source) on the indigenous people. By European “customary law”, I mean both the so-called common law and Roman-Dutch law which were imposed since 1652. Both these forms of European “customary law” developed in terms of the “customs” (by “customs”, which embed “customary law”, the Europeans, originally white missionaries and later anthropologists, meant backward and not yet scientific practices of the indigenous people after dismissing Africans as non-rational animals) of the European conquerors. Perhaps one of the lethal “customs” of these European conquerors is to define their law(s) as universal thus superior and the law of the indigenous people as particular thus inferior.
Theirs is (English) common law and that of the indigenous people is preceded by the adjective “customary” (African Law is not embedded in “customs” as understood by white racists but is grounded in Isintu or Setso as indigenous products of African Social Imaginary which are totally foreign to racist settlers). This is a subtle way of relegating African Law to a backward status of immaturity. As far as the Indigenous people are concerned there is nothing inferior and backward about Molao or Umthetho (of course Africans acknowledge that their Law is not perfect but insist on improving it on their terms as per their understanding of self-determination). The antagonism between the universal and the particular is important to comprehend as premised on the fallacious claim to Progress by the Europeans. In “South Africa”, for instance, African students (whites excluded as I believe there is no such thing as a white African but only whites in Africa; a point which raises the logical question, why are whites in Africa?) study “Law” at European colonial universities like Wits, which happen to be on the African continent (due, of course, to white supremacy). They are never told that by “Law” it is meant European “customary law” (these African students are studying the “Law” of the “civilized” whites, and this is the origin of cultural alienation and self-hatred among these students.). This is a “Law” which conceives of itself as law as such; a model to be emulated by the “inferior” and “immature” indigenous people. This is how the racist settlers arrogate to themselves the exercise of reason and classification to the exclusion of the indigenous people who are regarded as animals without reason and still immersed in nature. The great warrior-ancestor John Henrik Clarke once correctly posited that the first step towards a revolution is the rejection (on the part of the oppressed) of the classification by the oppressors.
European “customary law” was imposed since 1652 in the name of white “civilization” (“civilization” of course meaning white life and its customs). It is through this process of white “civilization” (which disrupted the autonomous evolution of indigenous civilization which preceded it by thousands of years as the great Cheik Anta Diop has firmly demonstrated) that the so-called white “civilizers” invented “customary law” of the indigenous conquered people. The white “civilizers” who regard themselves as racially superior (the human as such) fabricated “the white man’s burden” to rationalize their trusteeship of the so-called “uncivilized” indigenous people. This is because, in terms of the European doctrine of Great Chain of Being, the white “civilizers” regard themselves as both human and superior and dismiss the indigenous people as not human and inferior. This racist categorization of the indigenous people as not human and inferior is fundamental to the European self-conception. The Europeans derive “psychic benefit” from defining themselves in self-aggrandizing terms and derogating the indigenous people in negative racist terms (this is the cultural and psychological aspect of white supremacy which Marxists don’t comprehend by reducing racism to an epiphenomenon of class struggle).
Concomitant with the above-mentioned doctrine is the idea of Evolutionism. It is in terms of this idea that the white “civilizers” regard themselves and their law(s) as highly advanced and that of the indigenous people as backward. This racist illusion is predicated on the white “civilizers” linear notion of time. The racist illusions of white “civilization” and trusteeship originate from the doctrine of Discovery. This doctrine evolved out of papal bulls (issued by European popes and providing divine sanction to the so-called journeys of discovery around the 1400s) which authorized “European nations” to conquer and “civilize” the so-called “non-European savages, infidels and barbarians” (who were dismissed as the enemies of Christ and “lesser breeds without law and self-governance”; of course as understood by these very arrogant Europeans). This doctrine is grounded in “international law” (to be precise, the law of the colonizing nations). At the core of this doctrine is racial hubris. The white “civilizers”, in order to rationalize their campaign of white cultural warfare and genocide, could not and still cannot (without contradicting themselves) put themselves and the indigenous people at the same level of being and intellectual capacity. The hierarchy of being and reason is necessary if white supremacy is to make sense and sustain itself.
“Customary Law” is a racist colonial invention. The racist invention of the “cultural Other” and “customary law” are complementary. Colonial Indirect Rule and “customary law” go hand in hand. The Conquest of African Kings and Kingdoms (as originally based and sustained by African Law which was evolving on own its terms) as symbols and memory of Black Power and the invention of chiefs as agents of Indirect Rule explain the origin of “customary law”. The Repugnancy principle and case law legal requirements which regard “customary law” as valid to an extent that it is in accordance with the white “civilizers” notion of law, justice and morality are a reflection of the racist logic of white trusteeship. African Law, as a Law created by the Africans in terms of Isintu or Setso (Ubuntu or Botho) to solve their problems and meet their needs, was on an autonomous evolutionary path until it was violently disrupted by Settler-Conquest. And reduced to the unenviable racist status of the backward law of the “immature” and “uncivilized”.
The restoration of “Izwe Lethu” (African sovereign title to territory and self-determination) is the condition of possibility for the concomitant restoration of the supremacy of African Law. Thus, revolution is a historical necessity to restore both sovereign title to territory and the disrupted autonomous evolution of African Law and its supremacy. Until then, it is “not yet Uhuru” as Settler-colonial sovereignty persists and “customary law” is “subject” to European constitutional supremacy and its racist logic of white trusteeship as reflected in the current constitution. The current constitution is embedded in European notions of law, politics, culture, philosophy. The fact that some “blacks” were involved in its drafting only attests to the absurd degree of cultural alienation and contempt of these “blacks” (what Biko called non-whites). These “blacks” succumbed to white epistemology of domination to the extent of “witnessing” the absence of Ubuntu or Botho in this colonial racist document. Africans, as a proud and self-respecting race, have to reject this white master’s tool with the same vehemence that our living-dead, like Sobukwe, rejected the so-called Freedom Charter whose spirit this tool reflects. I want to conclude these combative hermeneutics by re-membering (relying on the wisdom of the living-dead in terms of African spirituality) Muziwakhe Lembede who provides a prescient critique of Liberalism which this white settler-colonial document embodies. This is Lembede in his own words:
To mislead the world and make it believe that the Whiteman in South
Africa is helping the African on the road to civilized life, the
Whiteman has arrogated to himself the title and role of Trustee of the
African people. The effects of Trusteeship alone have made the
African realize that Trusteeship has meant, as it still means, the
consolidation by the Whiteman of his position at the expense of the
African people, so that by the time national awakening opens the eyes
of the African people to the bluff they live under, White domination
should be secure and unassailable.
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By Masilo Lepuru