South Africa: Draft Traditional Laws Reimpose Colonial Logic

analysis

Draft laws currently before the president closely resemble previous versions of colonial and apartheid laws that locked African people into “tribal” reserves, under the authority of despotic forms of rule legitimated in the name of “tradition”. This was a colonial perversion of precolonial forms of politics that sought to encase African people in fixed and authoritarian ideas of “tradition”.

Scholars such as Paul Landau have explored the history of popular politics in precolonial times and shown that dynamism, rebellion and flight were always present. Strangers were accommodated, people frequently moved from one polity to another and identity was malleable. Landau shows, decisively, that the idea of the “tribe” was a colonial imposition.

In significant respects, the trajectory of the South African postcolonial era has reinscribed colonial ideas of “traditional authority”, with the result that for millions of people we remain a neocolony. Warnings from scholars such as the Ugandan intellectual, Mahmood Mamdani, and opposition from grassroots activists, have been ignored.

Popular mobilisation from below defeated apartheid. In trade unions and in community struggles, aspirations for radical or participatory democracy became a powerful ideal. But now even the liberal democracy set up after apartheid is being subsumed by the cold grasp of old forms of colonial oppression in the service of new forms of accumulation.

Roughly 18 million people will be directly affected if the Traditional and Khoi-San Bill and Traditional Courts Bill are signed into law. Already around a third of South Africa’s people live in communal lands that are governed on a different basis to the rest of the country. The legacy of apartheid prime minister Hendrik Verwoerd’s Bantustans – territories set aside for African people under a racially specific form of governance – continues to shape the everyday lives, often all too precarious, of these people.

‘Homelands’

The idea of “homelands” dates back to colonial rule that dispossessed the African majority from the bulk of its ancestral land and then locked it into “tribal” reserves. After the wars of colonial conquest, there was a shift in policy from direct to indirect rule.

In his short but incisive book Define and Rule, which began its life as the Du Bois memorial lectures, Mamdani maps the history of what he refers to as “a new form of colonial governmentality born in the aftermath of the mid-nineteenth century crisis of colonialism”.

As Africans were defeated and dispossessed, common lands were turned into private property and customary tenure was codified in a way that fundamentally changed precolonial practices.

In 1883, the Native Laws Commission – which only took evidence from missionaries, officials and traditional leaders, whom the colonists called “chiefs” – declared:

“The land occupied by tribe is regarded theoretically as the property of the paramount chief: in relation to the tribe he is trustee holding it for the people, who occupy and use it in subordination to him on communistic principles.”

Mamdani concludes that the function of this idea was to solidify colonial rule.

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