Legitimising wrong-doing in the guise of rule of law

By Lindiwe Sisulu

Apartheid was “legal”. Jim Crow laws in the United States were “legal”. Colonialism was “legal”. Even the Nazis were “legal”. So what does it mean to have the rule of law? And whose law is it anyway?

In South Africa, a constitution in 1994 and the rule of law took on a new lofty meaning after the deck had been heavily stacked against the victims of the “rule of law.” It was a new dispensation of justice after centuries of vicious oppression of the indigenes of the land by invaders. But what has this beautiful constitution done for the victims except as a palliative (Panadol)?

If we look around, we see a sea of African poverty.

Let’s not fool ourselves and one another; the primary motivation for the evils of colonialism was and still is economic. It is an organised crime; the robbery of other people’s land and resources; as well as the exploitation and despiteful use of their labour. It is also about the reduction of these people to mass consumers and exclusion from the ownership of the factors of production and wealth creation.

But it seems today we have legitimised wrongdoing under the umbrella of the rule of law. Many years down the line Africans manage poverty while others manage wealth. When we talk about transformation, it is just a buzzword? When we talk about reconciliation, what we don’t hear is economic reconciliation?

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There are excellent reasons why the late Sampie Terreblanche, renowned economist and fighter for justice, kept insisting on a new Truth and Reconciliation Commission focusing on economic justice. But obviously his voice, like other voices calling for economic justice, economic restoration, and economic reparations as essential for reconciliation, has been consistently ignored by those with the power to actually give effect to these calls.

That demand should be made with greater urgency now than ever before. We should insist, and not give up until they are met.

Colonised capital and political brokers

What we have instead witnessed under a supreme constitution, and the rule of law since 1994 has been the co-option and invitation of political power brokers to the dinner table, whose job is to keep the masses quiet in their sufferance while they dine caviar with colonised capital (CC). After dinner many things take place under the table and around the table. Some call it stomach politics. The politicians take care of themselves and their families while those who put them there go to bed hungry, waiting for crumbs from the table.

Otherwise, what explains the sudden astronomical wealth of so-called “liberators” over such a short period of time? How did some become multi-millionaires and billionaires overnight while a third of their fellow citizens languish on social grants? It takes several years for families and businesses to earn the status of multi-millionaires or billionaires, after real hard work and value creation. But like Mzansi magic we have some socialism-spouting “liberators” draped in flags, transformed and co-opted into the capitalist class and leafy suburbs.

In 1994 they struggled to put petrol in their cars. Some didn’t even own one. And yet when it is election time you will hear them spouting “Our people, our people. Surely, this was not the vision of the real liberators. Those whom we revere as the “struggle stalwarts”. They have gone to their graves, with a dream deferred, their life’s work besmirched, and their sacrifices spat upon. What happened to us?

Where is the economic reconciliation?

The land is where it all begins. And the law of the land makes or breaks. The law pervades every aspect of our lives, including the allocation of wealth and poverty. We are all too familiar with the history of land theft in South Africa that began in 1652. The infamous 1913 Natives Land Act that just took from Africans has merely been a legalisation and legitimisation of this scandalous process. Its disastrous effect has had a very long life. After more than a century later, the very same Africans are unable to take back what belongs to them. They have been co-opted in patches to work against the interest of their own; trapped in the politics of meaningless language, political crap and stupor.

In 1913 those who took from Africans were never conflicted in what they wanted to do. How long will the centre hold if economic reconciliation, restoration of the land, and meaningful redistribution of wealth is not addressed as a matter of urgency?

The July 2021 looting was a massive warning shot. Our country cannot afford second and third warnings.

Whose law is it?

Politicians in parliament are called lawgivers. They make the law. During colonialism and apartheid, the lawgivers were purposeful. Their purpose was rooted in the philosophy of white supremacy and entitlement to everything, including the bodies of those they falsely believed to be inferior. It was simply to take and colonise and defend, for kith and kin. It was about power. Economic power, political power, military power, and social power.

Today, the language of law has done little to really change anything. We have parallels. One must look at the January 6 insurrection in the United States of America, and whether its proponents really care about democracy or only care about power. And ask ourselves why almost half the country voted for a man who seemed to care nothing about democracy and the rule of law. At the deepest level, it is not very different from South Africa.

The stark reality is that if you don’t have land, you don’t have a country. That is why an overwhelming majority of wars in history have been fought over land and territory. In South Africa 8% of the population control 80% of the land and its resources. So, who are the real owners of the country? Meanwhile 80% of the majority in the country control less than 10% of the market capitalisation at the Johannesburg Stock Exchange. Who is fooling who?

Meanwhile, our black politicians have become black assets for colonised capital. And that capital keeps knocking at their doors for them to facilitate economic returns to multiply their investments.

The legal brokers and  judicial reform

The most dangerous African today is the mentally colonised African. And when you put them in leadership positions or as interpreters of the law, they are worse than your oppressor. They have no African or Pan-African inspired ideological grounding. Some are confused by foreign belief systems.

In America these interpreters are called the House Negroes. It is what the father of black history Carter Woodson strenuously complained about in his famous book The Miseducation of the Negro. Woodson wrote, “If you control a man’s thinking you don’t have to worry about his actions. You do not have to tell him to stand here or go yonder, he will find his proper place. You do not need to send him to the back door, he will go without being told. In fact, if there is no back door, he will cut one for his special benefit.”

When it comes to crucial economic issues and property matters, the same African cosies up with their elitist colleagues to sing from the same hymnbook, spouting the Roman Dutch law of property. But where is the indigenous law? It has been reduced to a footnote in your law schools. Where are the African value systems and customs of land, wealth, and property?

Today, in the high echelons of our judicial system are these mentally colonised Africans, who have settled with the worldview and mindset of those who have dispossessed their ancestors. They are only too happy to lick the spittle of those who falsely claim superiority. The lack of confidence which permeates their rulings against their own speaks very loudly, while others, secure in their agenda, clap behind closed doors.

There is a need for an overhaul of a justice system that does not work for Africa and Africans. If the law does not sufficiently address the issue of the food fight, the law will fail and inevitably it will play out in the streets. We have a neo-liberal constitution, with foreign inspiration, but who are the interpreters? And where is the African value system of this constitution and the rule of law? If the law does not work for Africans in Africa, then what is the use of the rule of law?

• Lindiwe Sisulu is a member of the ANC’s national executive committee. She writes in her personal capacity.