By Bayethe Maswazi
The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa | Tembeka Ngcukaitobi | Penguin Random House
The book by Advocate Ngcukaitobi, The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa seems to have a set on a flame of fire that has caught the entire country. Yet it is not the only book of the same title, in 1984 Dr Motsoko Pheko wrote a book of the same title narrating the life of that revolutionary giant ‘Prof’ Robert Mangaliso Sobukwe.
There certain similarities between the two books. Both narrate the political shenanigans that led to Africans losing their land.
I have read both books, but it is to the current The Land Is Ours by Advocate Ngcukaitobi that I want to make a few observations if only to encourage many to read it.
If one were to judge it by title, one would be fascinated by thinking that in the discourse about land, it offers something new, yet it does not.
Emerging at a vantage point after more than twenty years of the post-1994 experiment, one would have expected this book to provide a deeper critique about our liberation process especially if it aims to do justice to the land discourse as it pertains to South Africa. You will find none of that in this book.
If someone argues that this was never the intention of the author, to provide a critique of the liberation process, even though discourses on land and constitutionalism constitute an open invitation to critique the post-1994 liberation process. Then perhaps we must judge the book on the basis of the promise it pertinently makes, namely constitutionalism. After all, the subtitle of the book is Black lawyers and the birth constitutionalism.
A predetermined principle of devolving power from the ruler to the ruled with the consent of the ruled may be defined as constitutionalism. Rule of law, separation of powers and an egalitarian administrative and political ethos are some of the fundamental ingredients of constitutionalism. We may include in this list, a charter or bill of rights justifiable through a constitutionally protected independent judiciary.
We must, therefore, ask, whose constitutionalism is represented in this book, I answer, English constitutionalism.
We see this because, Alfred Mangena one of the pioneer Black lawyers of the time, does not tire from using English law to try and save some or other of the freedom fighters who wage in their own way, the wars of colonial resistance, from a criminal and penal justice systems that attend them each time they respond to the pain of oppression.
The author sees this as the birth of constitutionalism in South Africa. The constitutionalism as understood in the book is a value system which originated in England in the 17th Century. It too is a product of the struggles of the English people in the both the Cromwell Revolution of 1640 and Revolution of the Glorious of 1666.
How the import of this value system into a colonial setting represent the birth of constitutionalism is a mystery that our author has not succeeded in untangling, even though any serious scholar of jurisprudence would have expected this to occupy a dedicated chapter of the book.
Perhaps this needs to be unpacked in greater detail. Alfred Mangena, Richard Msimang and Pixley Ka Isaka Seme, constitute the first generation of black lawyers. Legally trained in England, one would have expected them to expect that law in a colonizing environment would be put to use to mitigate the effect of colonization which naturally is accompanied by a murderous degree of dispossession.
I argue that this is as much of our expectation, as observers of this historical episode, as it is theirs as players in it. Glorious as their role may be, which is cast upon them by the fate of history, it is not possible to see it as the birth of constitutionalism. If we were to do so, it would mean that the oppressed, in their attempt to write their own history of oppression, through the struggle against colonization, see their oppressors as their example.
One of the fault lines of the liberation process in the entirety of Africa, according to Frantz Fanon is exactly this, the elevation of the oppressor as the example for the oppressed even in their struggle against oppression. Paulo Freire in Pedagogy of the Oppressed, chooses to express this in rather more eloquent terms he says:
“No pedagogy which is truly liberating can remain distinct from the oppressed by treating them as unfortunate and presenting for their emulation models from among the oppressors. The oppressed must be their own example in the struggle for their redemption”
At a time when England abolished slavery, the slave owners that lost slaves as a result of the change in the law of slavery sued the government for the loss of property and were compensated. This is the jurisprudence that our author calls on us to see as our model of constitutionalism.
His failure to accord a deeper analysis to the fact that when Alfred Mangena did battle with the English state in defense of the martyrs of the Bambatha rebellion, he does so not do so because it represents the best values of constitutionalism but because it is the only legal way of responding to a decadent system of oppression, is difficult to comprehend.
Naturally, English judges had none of it, they kick Mangena’s motion out of court in a manner which the author himself finds ironically strange, perhaps because of his boundless faith in English constitutionalism. But the subtext of this judicial response is clear, English constitutionalism cannot be used to push back the colonization project.
If English constitutionalism then is complicit not only in the crime of slavery but also that of our colonization, on what basis does English trained lawyers represent the “birth of constitutionalism”? This book does not answer this question, there lies its pertinent intellectual weakness.
Our adulation of them, that is, the first generation of black lawyers, as pioneer professionals and fighters in the cause of freedom must not cross the boundary towards the repugnant adulation of those whose hands are dripping with our blood. Our author is guilty of this, and if his book is an invitation to us to accompany him in his journey to jurisprudence betrayal, it is an invitation we must firmly decline, instead, we must pull him out of this intellectual cul de sac.
No one has ever freed himself based on the logic of his oppressor, true freedom is often attained when the oppressed disrupt the logic of their oppressor and take themselves to a higher level of human development. In other words, freedom cannot come through the logic of the oppressor.
Law can be an instrument of oppression, it can also be an instrument of liberation because after all, the law is by itself, politics by other means. Our author seems blissfully unaware of this hence he extols the virtues of the English constitutionalism, without asking on what basis did England go out to colonize other human beings, if its constitutionalism, which was more than two hundred years at the time, represents all the virtues of human decency.
Biko tells us:
“We have set on quest for true humanity, and somewhere on the distant horizon we can see the glittering prize. Let us march forth with courage and determination, drawing on the strength from our common plight and our brotherhood” – I Write What I Like
Unlike Biko, our author beckons on us to seek and promote the value systems of those who have done us grievous political and economic harm as the best model of humanity. We have no choice but to inspire him to listen to Biko more attentively, he might find that the English, how huge their contribution to human civilization have had their share of astounding atrocities.
All in all, this book is a reminder about the proverbial elephant that gave birth to a mouse. If this book was a story of the hunt, it would most certainly be that of the hunter, and those of us who yearn for the real story of the hunt would have to wait for the lion to tell it. This is my judgment, read it and give yours.