The law has no absolute character and always reflects the balance of social forces at the time it was written. It is a terrain of struggle, not a replacement for struggle.
Three forms of oppressive authority, all intensely patriarchal, have met significant challenges in recent weeks.
The judgment that the high court in Pietermaritzburg handed down on 11 June struck a major blow at the Ingonyama Trust, an oppressive relic of the dying days of apartheid, and its merciless exploitation of some of the most vulnerable people in our society.
The police attacked pro-democracy protesters in Mbabane, eSwatini, on 25 June. It is said that a father rushing to the aid of his child, who had collapsed after breathing in tear gas, was shot in the back. This ignited an uprising across the country against the tyranny of King Mswati III, which was met with deadly violence from the dictatorship’s military. At the time of writing, it is being reported that Mswati’s soldiers have murdered around 40 people.
And on 29 June the Constitutional Court sentenced Jacob Zuma, who led an often criminal and violently repressive kleptocracy, to prison for his refusal to accept the authority of the judicial system.
Two of these blows were struck by the law, the other by popular defiance on the streets. Each of them is welcome.
Law and struggle
The law was not given to us by a bearded patriarch descending from a sacred mountain with stone tablets inscribed with fire by divine power. It is written by fallible people, as an expression of the balance of social forces at particular moments in history. Globally, many – if not most – of the advances in law have been won by struggle, including the sort of insurrectionary struggle that is playing out in eSwatini. Demands that arrive on a national stage animated by real material power via the messiness of the riot can, in time, be affirmed in the formal language of the law, sometimes in elegant soaring prose. Nonetheless, there is no system of law that does not have limits and contradictions.
Moreover, for as long as access to the law remains commodified, it will always be a terrain on which the rich and powerful are given massive advantages over the majority. It can be a terrain of struggle, but that terrain is not democratic. However, although the advantages a commodified legal system provides to the powerful are systemic, and often insurmountable for most people, they are not absolute. There are, around the world, occasions on which the oppressed score significant victories against their oppressors.
In South Africa, our Constitution emerges from a political compromise and it is always necessary to be clear-eyed about its limits. Nonetheless, it marks a moment in which an incoming tide of social hope, and commitment to concrete social aspirations and guarantees, reached far higher than the low tide engendered by the cynicism, weariness and rot of the present – a degeneration of social hope in which Zuma played a significant role.
The affirmation of the universal – a universal right to dignity, equality and access to a circumscribed set of freedoms – written into the Constitution is often little more than elegant prose functioning as ideological cover for a filthy political and social system in which the idea that each person should count as a person, and no more or less than others, is wildly fantastical. But the moments, rare as they are, in which that promise is realised in cases brought by oppressed people that result in judgments that mark material improvements in the situation of the oppressed can take on a transcendent dimension. They can remind both the oppressed and their oppressors that, somewhere in the everyday hypocrisy, corruption, sadism and violence of our society, the usually hidden seed of commitment to real equality endures.
Alliances between lawyers and activists
There was a period shortly after the turn of the last century in which Ashraf Cassiem of the Anti-Eviction Campaign in Cape Town conceived of tactics, sometimes described as guerrilla law, to make autonomous interventions on the legal terrain. He did this via forms of self-representation and disruption that did not require access to the law to be mediated through the often, although not always, liberal politics of pro bono law firms.
But today, outside of the crudely trumped-up criminal cases that activists must regularly confront and the legal strategies of relatively well-resourced trade unions, it is usually pro bono law firms that represent popular interests in the courts. Some of these firms, such as the Socio-Economic Rights Institute in Johannesburg, which takes on the more immediately contextual work of what has been called “movement lawyering” rather than a single-minded search for better jurisprudence, have won deep respect from grassroots activists.
The victories won by alliances between progressive lawyers and activists are usually defensive. They can sometimes stop illegal state action and buy time for people to organise or undertake direct action. Astute activists recognise this and simultaneously use the law to stop evictions, and collective organisation and land occupations to seize and hold land. Law is used to enable rather than substitute for struggle.
The state uses the law in very different ways. It jails people for infractions of petty laws, often resulting from impoverishment rather than deviance. It protects private property. It sends out armed men to dispossess people from occupied land. It crushes autonomously organised strikes.
But the state has a complex character. The same person who appreciates and welcomes the state when it provides vaccinations, or acts against an employer whose exploitation exceeds the bounds of the law, receives it as a cruel and violent imposition when it sends armed men to destroy their home, leaving a child’s school books scattered in the mud and a family facing a cold winter night in the open.
In South Africa, as in the United States, Brazil or Australia, the criminal justice system overwhelmingly targets people who are impoverished and Black. It is a largely illegitimate mechanism of oppression. But those occasions on which the rich and powerful are subject to the same rules, processes and consequences as everyone else often affirm a certain kind of equality and that there is a barrier to the desire for absolute impunity on the part of the powerful.
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Struggle is always undertaken on the existing terrain of social life. As a result, just as the defeat of the Ingonyama Trust is widely experienced as a victory, so too is the sentence handed down to Zuma. It could even be said, without exaggeration, that both judgments are redemptive moments, rare redemptive movements in a long succession of hard years.
But we must not forget that when the law does offer possibilities for the affirmation of equality – limits to the oppressive power of the state and other forces such as capital, xenophobes, violently patriarchal men and so on – it does so as a result of an accumulation of struggle, some of which reaches back hundreds of years and frequently includes the kinds of resistance under way in eSwatini.
If the struggle against King Mswati III’s dictatorship – which like the power of late King Goodwill Zwelithini kaBhekuzulu was enthusiastically backed by the apartheid state – succeeds and a constituent assembly is elected, the dialectic between struggle and law would again be concretised before our eyes. It would be another occasion on which history takes on the dizzying velocity of moments of great change.