Vuyani Pambo
Pretoria - The battle between conventional modernist thought and emerging black philosophy, has defined 20th century political society, since the age of anti-slavery and the Independence movement in Africa.
At the crux of the debate, is whether the conceptual basis of our society, be it in economics, politics, literature, or the law and academia is dependent on the disenfranchisement, oppression and omission of those who have been crafted outside of the frameworks of existence. That is to say, the systems and institutions of society were created without consideration of those who were outside the bounds of what is considered civility and humanity.
The law in South Africa, notably in recent times, has not been spared from what is admittedly an academic reflection over what defines and directs modern society. If we are to read the manufactured and convenient uproar about those who constitute the Judicial Service Commission (JSC) for example, we will find much value in reaching into these debates to gain greater contextual understanding of what the fuss is about.
The article therefore deals with the myopic and pretentious argument, that the process of appointment of Judges in South Africa, must be devoid of politics, as if the law is not a product of the political ethos of the society it seeks to govern.
Through a brief reflection on political theory and its connection to the development of law, the article will expose why the objection to the presence of Commander in Chief of the Economic Freedom Fighters, Julius Malema and Advocate Dali Mpofu on the JSC is not a matter of integrity. It’s part of an age-old battle between restrictive liberalism and progressive radical thought.
From the onset, the case that must be made is that there is no instance in history or contemporary reality, where the law exists beyond or outside of the politics of the time. This is whether we reflect on unjust laws that governed immoral periods of humanity, such as the Atlantic Slave Trade, the Holocaust, colonialism or Apartheid.
The architects of the law are a society, and they do this through crafting a political ideology, with basic values that define what such a society seeks to achieve.
Now in South Africa, we must read the law and politics within the framework of the 1994 democratic dispensation, and the much-lauded negotiated settlement between the Apartheid state and liberation movements. The politics that defined the construction of that law fall within the ambit of what can be described as a liberal constitutional democracy.
This liberal constitutional democracy is birthed by a dual legal system, which is foreign not only in origin but also in substance, namely the Roman Dutch legal system. Now the hybridity of our legal system, is born of particularly Western philosophy, that was the basis of conquest.
If one reads political literature, namely by leading colonial scholars such as John Locke, liberal politics, coupled with the presumption of civility of the Western world, were the rationale for land dispossession and conquest. A simple example is the logic for accumulation of land by the British in the Americas, which was that land which was not secured through encroachment, which did not contribute to global agricultural commerce (which native Americans had no access to) and in accordance to Western values was not “worked”, was open to acquiring by colonialists.
It must be noted that this colonial land policy reverberated across the world and inspired the colonial project, from pre-colonial India, America and South Africa, on the arrival of the Dutch. The very same Dutch settlers whose legal philosophy permeates throughout our legal framework today.
Now if we read that in context, the demand for land expropriation without compensation in South Africa is one that goes against the very philosophy of our legal system. This is because the founding political basis of our legal system, defines land ownership and the right to own land through the lens of encroachment, contribution to global commerce and so-called productive use.
This is how land dispossession and conquest were rationalised, and this is how the retainment of land by benefactors of land theft is justified today. In what Mogobe Ramose refers to as “the right to conquest”, injustice and that which is acquired through brute force is defensible by law in South Africa, and this law is protected at all costs. Interrogation of this law is labelled as an attack, to avoid it ever being meaningfully changed.
The 1994 transition, accompanied by its sunset clauses which enshrined white-dominated control of land and the economy, therefore means that our legal system is based on politics which do not reflect the aspirations of the people.
This is why Malema and Mpofu’s presence in a body that appoints judges is a much deeper threat to the establishment than we can imagine. They represent a philosophical threat to the basis of our law. They are a threat to the politics that inform the law.
This is easy to see if we are to consider the sudden rise to the objection of politicians being part of the process of appointing judges. The objection is not one that is against politicians having a presence in the JSC, it is an objection to the presence of a certain political school of thought. This school of thought is outside of the liberal tradition which was affirmed in 1994, and is carried by Malema and Mpofu.
There has never been a problem with politicians occupying a position in the JSC, because all of those who constituted it, belong to the same liberal school of thought of the post-1994 dispensation.
Malema and Mpofu therefore represent a disruption. They are an uncomfortable reminder that this law is not based on a political philosophy crafted by African people, and they are a stain to the sanitising of a legal philosophy whose roots can be traced in conquest.
The fear is therefore whether Malema and Mpofu will reconstruct the legal fraternity, by propelling like-minded judges to the heights of judicial power. It is a fear of transformation and decolonisation at the core.
For this problem to only arise when people of a leftist political background occupy these positions as commissioners is telling, to a point where frail, shriveled-up and impotent Apartheid judges have the chicken audacity to lecture South Africans about integrity and suitability.
Thankfully, the raging debate between traditional liberalism and black decolonial philosophy is deeper than poor-political commentary by unqualified and unlearned journalists.
It requires an acute understanding of the development of society, and a serious reading of how systems and institutions were constructed at a philosophical level.
There is no intellectual basis for the removal of Malema and Mpofu, and all self-loving black people are duty bound to resist it. The basis for their removal is fear and cowardice by regressive liberals and their unwitting supporters, who do not grasp the magnitude of the forces at play.
We must build a solid defense for the presence of black intellectuals in all spheres of society, if we are to achieve true decolonisation and independence.
* Pambo is the EFF national spokesperson and holds a Postgraduate degree in African Literature from the University of Witwatersrand