Annu. Rev. Law Soc. Sci. 2011. 7:X X

Annu. Rev. Law Soc. Sci. 2011. 7:X--X

doi: 10.1146/annurev-lawsocsci-102510-105436

1550-3585/11/1201-0000$20.00

<DOI> 10.1146/annurev-lawsocsci-102510-105436</DOI>

Moore

Dismantling an Apartheid State

The Legislative Dismantling of a Colonial and an Apartheid State

Sally Falk Moore

Department of Anthropology and Harvard Law School, Harvard University, Cambridge, Massachusetts 02138; email:

Keywords Tanzania, South Africa, land reform, Truth and Reconciliation Commission, semiautonomous social fields, cultural pluralism

nAbstract In the 1960s, social scientists speculated about what the consequence of legal, cultural, and racial pluralism would be in Africa after independence. Now, 50 years later, we know that, though transformed, cultural pluralism remains a shaping force. In Tanzania, from the 1960s on, there was an effort to build equality and national loyalty through socialism. In South Africa, after 1994, there were two major kinds of legislation that rejected the racially divisive past and attempted to repair its damage. One established the Truth and Reconciliation Commission; the other was a cluster of laws that designed a scheme of land reform. Both have been studied by anthropologists. Here, I review the Tanzanian and the two South African instances. The incompleteness and unevenness of what was achieved can be compared with the grand legislative intentions that preceded the law making. This has profound implications for the analysis of social process and for the relationships among the state, its ambitions, and its citizens.

Introduction

Working as an anthropologist on Kilimanjaro in the early years of Tanzania’s independence from colonial Britain, I witnessed the introduction of many legislative and administrative changes involved in installing a socialist regime, promoting national loyalty, and encouraging ethnic group differences to fade. The particular efforts I observed were directed toward reforming an obedient but not enthusiastic population. In Tanzania, among other things, government-directed institutional innovations were designed to convert supposedly self-interested Tanzanians into caring-for-others socialists. National integration was the ideal. The effect of socialism was intended to be not only legal and social but also mental. As President Julius Nyerere wrote in 1966, “Socialism, like democracy, is an attitude of mind” (Nyerere 1966, p. 162).

For a host of historical reasons, regime reconstruction in South Africa since 1994 has been very different from that in Tanzania. Fortunately, some detailed analyses of the South African situation have recently become available. Two particular domains of postapartheid South African legislation have been observed in detail by anthropologists: the Truth and Reconciliation Commission (TRC) and the program of land reform. Under the aegis of the TRC, victims of the apartheid government were encouraged to speak for the record about abuses they had experienced, and officials were allowed to confess to abuses they had perpetrated in the hope of being granted amnesty. In the same period, but extending far longer, a sequence of legislative acts provided landless citizens with the opportunity to apply for the restitution or allocation of land and specified the conditions under which this could be done. The two excellent fieldwork studies of the consequences of these pieces of legislation are Richard A. Wilson’s (2001) The Politics of Truth and Reconciliation in South Africa and Deborah James’s (2007) Gaining Ground? ‘Rights’ and ‘Property’ in South African Land Reform.

These books epitomize the change in anthropology since the first burst of African independence in the 1960s. One question that preoccupied some academics in the 1960s was what constitutional changes might be necessary to bring about national integration in these deeply divided, but newly independent, countries. As many saw it, for Africa, the big obstacle was the multiethnic organization that had previously been cultivated by the colonial regimes.

The academic conjectures of the 1960s and the 2010 reality, of course, are very different. But what is of interest in this early discussion of cultural and legal pluralism are the theoretical frameworks that were generated to imagine the future of the postcolony. Thinking about national legislation forced social anthropology to leap out of its customary preoccupation with the customs and traditions of particular peoples to pay close attention to the constitutional organization of multicultural polities.

This issue did not go away. Almost half a century later, John and Jean Comaroff remarked on the continuing legal importance of group cultural differences within modern nations (Comaroff & Comaroff 2009). With their customary verve, they argue that there has been an increasing “recognition of greater heterogeneity,” that this “begets more law,” and that the political is being displaced into the legal (pp. 37, 46). Their essay roams the globe. Although it cites examples from a wide range of venues, it frequently draws on the Comaroffs’ deep knowledge of South Africa.

They call attention to the resurgence of identity politics in South Africa, including the claim by Zulu, Xhosa, Tswana, and others “to rule and be ruled according to their own customary ways” (Comaroff & Comaroff 2009, p. 42). They go on, “The struggle for sovereign indigeneity---and against Euromodern liberal democracy, conventionally conceived---seems to be spreading across the legal terrain of the country” (p. 44). In writing about this resurgence of indigeneity, they refer to it as “Afro-modern” law. Although their essay is in a book edited by the von Benda-Beckmanns, who have made substantial contributions to the study of pluralism, the Comaroffs eschew the language of legal pluralism (p. 44). They see the next move in anthropology as a shift from an orientation toward legal pluralism to one that focuses on law and governance. In many respects, the approach the Comaroffs have called for is already well under way in the profession.

Thus, in this review, I describe the early academic interest in legal/cultural pluralism in Africa that I encountered in the United States during the 1960s. Then I summarize some of my relevant fieldwork experience in Tanzania that began in 1968 and continued intermittently for many decades (see Moore 2005). By way of contrast, I then review the two remarkable books of Wilson and James, mentioned above, on aspects of regime change in South Africa. Because the postapartheid period in South Africa only began in 1994, and the history of South Africa was in many respects different from that of other African countries, the strategies adopted to alter the situation were different from those installed in Tanzania. However, what both projects of societal transformation have in common are grand goals and major impediments to their realization.

Legal Pluralism in Academic Discourse in the 1960s

In the 1960s, there was an early emergence in anthropology of a theory of legal/cultural pluralism (see Kuper & Smith 1969). The framework emerged in a faculty colloquium sponsored by the African Studies Center at the University of California, Los Angeles (UCLA), in 1966. At the time, there was great and optimistic excitement about the end of colonial rule. The concerns of an Africanist social anthropology were with the future constitutions of the emerging independent states and how these states would cope with their ethnic diversity.

The dominant force in the meetings of the colloquium was an extraordinary member of the UCLA Anthropology Department, M.G. Smith. A Jamaican by nationality, a poet, and an ex-soldier (he had been in the Canadian Army D-Day landings), Smith was a Caribbeanist and Africanist anthropologist by profession who had done extensive fieldwork in northern Nigeria.

Smith proposed a way to compare the political structure of the wide range of societies that anthropologists had addressed, from acephalous groups to empires. The existence and nature of corporate groups formed the unit he designated as the key factor: how many, how they were layered or nested, relations between them, etc. This was an extension and adaptation of the framework of Max Weber. Smith was convinced that politically “effective collective action,” to use the Comaroffs’ phrase, was principally possible through corporate groups, or sometimes through other more loosely linked aggregations of persons (Comaroff & Comaroff 2009, p. 36).

Smith’s definition of a corporate group was both formal and specific. It had five definitional requirements (numbering mine): “[1] an enduring, presumably perpetual group…; [2] having determinate boundaries and membership; [3] having an internal organization; [4] a unitary set of external relations; [5] an exclusive body of common affairs, and autonomy and procedures adequate to regulate them” (Smith 1974, p. 94). Smith’s ideal model was useful even when used to examine exceptions, to show which of the requisite elements he had specified was missing from particular organizational forms, and with what consequences. Many identifiable collectivities do not meet all the definitional requirements yet have considerable social effects. An example would be a cultural category that was not formally organized.

He classified the types of constitutional systems existing in Africa, ranging from the worst---the South African apartheid regime, which used ethnic membership to turn its black population into citizens of homeland chiefdoms, excluding them from citizenship in South Africa proper---to other constitutions that incorporated African ethnic groups into the polity on an equal basis (Smith 1969, p. 444). He discussed these and other types at length, including the constitutions of some European countries (French, Dutch, Danish) that incorporated all their citizens as individuals directly into the public domain, not through an intermediate ethnic group.

Smith’s analytic emphasis on the projected political constitutions of the African states was a splendid talking point for the participants in the lively faculty colloquium held at UCLA in 1966. Smith had, after all, just published a book on pluralism in the West Indies (Smith 1965). In Africa, would the distinct, organized ethnic groups persist? There were innumerable urban locations with members of a multiplicity of ethnic groups in close contact. What would they become? Even if there were formal constitutional integration of different ethnic groups into a consociational whole on the basis of formal equality for all groups, would the result be unstable? Smith (1969, p. 443) wrote, “As regards probable courses of development, much depends on the number, distribution, and institutional or ethnic identity of the segments, as well as their absolute and relative size, and common or differing external contexts. Formal equivalence and substantive equivalence are not always easily matched.” He saw many problems ahead.

The ideas about nationalism that Ernest Gellner published 40 years later were already floating around: that national cultural integration was essential to modernity and that, within a nation, cultural uniformity was the most developed form (Gellner 2005). National cultural homogeneity was obviously not even a possibility for Africa, where there are many ethnic groups, cultures, religions, and languages in each country. How would national integration be managed there?

A number of advanced African graduate students participated in the colloquium and spoke to this issue. As they expected, not only to return to their countries but also to occupy important political positions there, the terms of national integration were not merely academic questions for them. Their passionate involvement animated the colloquium. A much-debated matter was whether cultural, racial, and religious diversity would mark the dominant lines of political cleavage within each country or whether class differences would be the most important element in the political future.

A few years after the colloquium (in 1968), I went to Tanzania to do fieldwork. Among other research interests, I wanted to see how the cultural/legal pluralism issue was being addressed by the new independent government.

my Fieldwork in Tanzania

In Tanzania I chose to work on Mount Kilimanjaro among the Chagga people. I studied their so-called customary legal system, their local way of life, and their postcolonial relations with the newly independent socialist government. As it turned out, the Chagga way of life was far less disrupted by the government’s policies than was the case in many other regions of Tanzania. Their circumstances, however, must not be understood to reflect the situation in all Tanzania. The policies and the Chagga response are interesting nevertheless. Some examples follow.

The Villagization Program

In the government’s villagization program, people living in dispersed settlements were moved into concentrated communities. President Julius Nyerere saw the concentration of population in villages as essential to raising the standard of living of Africans. It would improve the provision of public services, water, schools, and electricity and would make various kinds of cooperation possible (Nyerere 1966, p. 184).

The Chagga already lived in a densely populated rural area with one household garden next to another. They were deemed to have villages already and were not moved. Additionally, the boundaries of the official Chagga villages were in many cases set exactly where the administrative units of the colonial period had been. (For more detail on this and other issues see Moore 1986.)

The Nationalization of Land

A second socialist program was only slightly more consequential for the Chagga, namely the nationalization of all land. What this meant ideologically was that nominally the land “belonged to all the people” collectively (Nyerere 1966, pp. 52--62). There would be no more private property in land. The government abolished all title to land and decreed that land should be held only by the cultivator (but only as long as he used it). If one can sweep aside the language that attended this change, one finds that for the Chagga, they may have lost title but they retained possession. In short, in a practical sense little had changed. They still lived on the plots they had inherited from their fathers, and they would leave them to their sons. They could even sell the right to possession, though, given the land shortage and the needs of kinsmen, few wanted to sell to outsiders. This was the early situation. (The details of the land question were not fully resolved for many decades and continue to be worked out through, for example, the Land Act of 1999 and the Village Land Act of 1999.)

The Abolition of Chiefship

Another move of the socialist government was to abolish chiefship. This served the ideology of equality and served to end the colonial political organization founded on ethnic groupings. The Chagga thus lost their ethnically based corporate status. However, the abolition of chiefship did not sadden the Chagga. Many thought the chiefs had been unfairly enriched by their positions, and they were not sorry to see them brought down. But past rank was not forgotten. On meeting them, chiefs were sometimes addressed as “ex-chiefu.”