Deputy chief justice Moseneke has noted that 'willing buyer, willing seller' is a fallacy and isn't backed by the constitution
Richard Pithouse
03 maart 2015
At a public discussion on the land question in Johannesburg on
Friday, February 27, Dikgang Moseneke, the Deputy Chief Justice of the
Constitutional Court, began his remarks with a well-known quote from
Frantz Fanon: For a colonised people the most essential value, because
the most concrete, is first and foremost the land: the land which will
bring them bread and, above all, dignity.
He spoke about the
centrality of the land question to the struggle against apartheid and
argued that, contrary to much of the bluster that often surrounds the
issue of land, the constitution does allow for expropriation and does
not make land reform impossible. He noted that neither the phrase
willing buyer, willing seller, nor the logic behind it, appear in the
constitution. The often strident misrepresentation of the constitution
in this regard has two primary political functions. The first is to
deflect responsibility for the failure to achieve meaningful land reform
after apartheid away from the ruling party. The second is to do so in a
manner that presents the constitutional order as an impermeable barrier
to the realisation of popular aspirations which are both legitimate and
urgent.
In view of the evidently predatory nature of the
authoritarian currents that have come to the fore in the ANC, it is easy
enough dismiss the desire to delegitimatise the constitutional order as
entirely self-serving. And when the land question is folded in to
active attempts to affirm and extend the reach of traditional authority,
it is equally easy to argue that a demand for justice is being misused
to shore up a shift towards undemocratic modes of power.
In some
cases these arguments are rooted in an uncritical assumption that
liberal social arrangements have a universal purchase and are an
unquestioned good. But more sophisticated arguments often draw on an
academic consensus, rooted primarily in Mahmood Mamdanis Citizen and Subject,
a book that was published almost twenty years ago and has attained the
status of a classic text. The essence of Mamdanis argument is that,
across Africa, colonial power captured and distorted pre-colonial modes
of rule for its own purposes and that most postcolonial governments have
sustained this in their own interests in the name of tradition. The
result, Mamdani argued, is that rural people have remained subjects of
undemocratic modes of authority while citizenship and democratic modes
of authority have only been attainable in urban settings.
It is
not difficult to sustain this line of argument in contemporary South
Africa. The former bantustans are governed on a fundamentally different
basis to the rest of the country and there are numerous stories of
self-interested complicity between traditional authorities and mining
companies as well as various kinds of abusive practices, some mediated
through an enthusiastic embrace of patriarchal ideas, on the part of
traditional authority.
But a simplistic division between the
virtues of liberal democracy and the perils of authority exercised in
the name of tradition, as both are experienced in practice, is not a
credible position. Ten years ago there was a pervasive elite consensus
that liberal democracy was in the process of emerging,
consolidating, developing and so on. When it was acknowledged that
not everyone was in a position to enjoy the benefits of liberal
democracy it was often assumed that, in time, democracy would trickle
down to all sectors of society. At the same time there was, in urban
areas, a widely held view that the problems that people were
experiencing with government were due to local malfeasance of various
kinds and could be resolved if the attention of senior officials and
politicians could be drawn to the situation. This view was often nested
in confidence in liberal democratic institutions and a sense that while
some people had been forgotten this was a temporary aberration that
could be corrected by asserting demands for recognition.
But today
no credible protagonist in the elite public sphere is under the
impression that local democracy is in the process of being entrenched.
Stories of abusive and exclusionary practices by ward councillors and
their committees, sometimes mediated through patriarchal practices, are
legion. In urban community meetings the idea that problems will be
resolved if the attention of higher authority is attracted no longer has
the purchase that it did ten years ago. People regularly argue that
democratic institutions, including the courts, function to sustain
rather than undo colonial dispossession. The government is often seen as
having sold out to the enduring grip that colonial modes of power are
seen to have on society. It is often argued, in particular, that land
was not bought and sold before colonialism and that it should not be
bought and sold now. Increasingly these sentiments are animating urban
land occupations organised from below. They are also part of the
explanation for the evident increase in peoples willingness to face
state violence in the struggle to access land from below. The EFF is the
only organisation operating in the elite public sphere to have
recognised and embraced these ideas and practices.
But its also
not unusual to hear people, people who have a background in struggle,
and in the ANC, who are not politically conservative and who live in
diverse communities, argue that pre-colonial modes of rule enabled
access to land and engaged people on a respectful basis and are
therefore preferable to corrupt and authoritarian councillors that
disrespect people and sustain modes of allocating land understood to be
colonial. In some cases people have actual experiences with amakhosi
that are vastly better than their experiences with councillors. And
while rural areas often remain poor, for many people living in cities
they are still a place of sanctuary a place to which people can return
when they are unwell or out of work, to which they can send their
children in difficult times, and to which they can retire and be buried.
An urban life is often a precarious and exhausting strategy to sustain a
rural sanctuary. Zumas ANC is the only organisation of any real weight
within the elite public sphere that has recognised and spoken to these
sentiments.
If the social forces that seek a democratic resolution
of the land question, one that puts ordinary people first and takes the
long standing demand for land and autonomy seriously, they will have to
take the degree to which liberal democracy has, in practice, failed
people, and to which its representatives are often experienced as
exploitative and abusive, with the utmost seriousness. In the absence of
this there is no guarantee that people looking for viable alternatives
to a system that does not work for them in practice will not be willing
to explore the only alternative that is being offered to them one that
holds out the promise of land and dignity via affiliation to a
reactionary mobilisation of the idea of traditional authority in support
of an increasingly brutal and predatory state.
AFRIKANERS AGAINST BLACK RACISM
