Criminal Justice, Cultural Justice:
Once upon a time, not so long ago, culture, in the lower case, was primarily an anthropological preoccupation. Not any more. It is hardly news that peoples across the planet have taken to invoking it, to signifying themselves with reference to it, to investing it with an authority, a determinacy, a superorganic unity of which even the most conservative anthropologist would be wary. Culture, now capitalized in both senses of the term, has come to provide the language, the Esperanto, of difference spoken in the active voice. And, as it has, its world-historical effect has been to unsettle all sorts of modernist certainties. Notable among them have been some of the premises and promises of Liberal Theory, its hegemonic conceptions of civilization and civitas, its obsession with reason and rationality, its idea of universal truth, its authorization of positivist empiricism. As never before, the liberal nation-state – the political apotheosis of that Theory, in the upper case – is being embarrassed by heterodoxy: by Culture as (i) a primordial alibi for naturally different identities, each of which warrants respect, recognition, room for self-expression, entitlement, and (ii) a solvent that, to the degree that it overlays race, class, generation, gender, and citizenship, reduces politics to what Tom Vanderbilt (1997:140) has dubbed “a host of special interest groups clamoring in the trading pits of pluralist relativism.”
Not only the trading pits. Also the law courts. From the world over come ever more legal challenges to Euromodernist ways and means, challenges made in the name of otherness, of different kinds of cultural and confessional reason. Like the struggle by Muslims to have their daughters wear head-scarves in French schools, or Sikhs employed by London Transport to don turbans, or Orisha worshipers in the USA to sacrifice animals for ritual purposes, or Christian Scientists to refuse medical intervention. As these examples suggest, the phenomenon is not new, but there seems to have been an exponential increase in landmark cases since the late years of the last century. Most have involved relatively small, disempowered minorities, people who seek, sometimes with moderate success, to assert their difference, phrased as a right to freedom of belief, against the constitutional hegemony of the liberal modernist nation-state; female Muslim cops in Britain, for example, may now don a hijab fringed in the design of the Metropolitan Police.1 But, in postcolonies like South Africa, the situation is more complicated. Significantly so. Here, heterodox practices – some of them long criminalized by the colonial state, some of them regarded as dangerous by the canons of liberal modernity – are claimed by the majority of the population. Indeed, by the very citizens in whose name anticolonial struggles were fought. And to whose empowerment postcolonial democracy is ostensibly dedicated.
In postcolonies, in short, the challenge of Culture to the sovereignty of the state, to its constitution and its rule of law, seems everywhere immanent. Note, in this respect, the assertive practice of female circumcision in countries that have legislated against it. Or the ascendance, recently, of Islamic sharia in the criminal law of northern Nigeria. Or, at the southern tip of the continent, the anti-constitutional practice of compulsory circumcision by some “traditional” authorities,2 many of whom joust openly with the law of the land under the sign of custom. The examples are endless. In South Africa, the issue takes on especially stark proportions. This, after all, is a postcolony whose government, the African National Congress, is trying to fashion a highly enlightened democracy under the banner ”One Law for one Nation” – and yet, at the same time, to free itself from a legacy of Eurocentric domination; a postcolony rooted in a modernist culture of legality that seeks, explicitly if uneasily, to make space for cultural diversity and customary authority; a postcolony whose Minister of Justice and Constitutional Development, Penuell Maduna, has expressed regret, publicly, that its Euromodern Constitution is not informed by “African jurisprudence.”3
But to what extent is this possible? What are the limits of liberalism in accommodating difference? Can a Euromodernist nation-state, founded on the sovereignty of “One Law,” actually infuse itself with another jurisprudence? Would it not invite a descent into Hobbesian – or, worse yet, Huntingtonian – pluralism? And why, in this equation, does the law keep raising its head? The equation itself, moreover, presupposes a Manichean opposition between Euromodernity and an Africanist politics of Culture. Is this the most appropriate way of phrasing the problem of heterodoxy in the first place? More consequentially, what happens in countries like South Africa, where cultural beliefs enjoy a large measure of constitutional protection (Comaroff and Comaroff n.d.[a]), when customary usages do run up against the One Law for One Nation? Could this – the immanent clash between Culture and the Law – be the corollary of a contradiction built into the very scaffolding of all postcolonies, which, as we shall see, are erected, simultaneously, on singularity and difference? If so, how is it to be resolved? Elsewhere (loc.cit.) we argue that it is actually unresolvable within the canons of liberal theory and practice. Assuming that this the case, what do human beings actually do when heterodoxy hits the limits of legal tolerance? How do they address the contradiction? And what are the historical implications of their actions for the ever more voluble confrontation, across the world, between Euromodernist universalism and cultural relativism?
We approach these questions, in South Africa, by way of a particular instance of the conundrum: the challenge to the state and to the One Law of the Nation posed by cultural practices deemed “dangerous” – dangerous because they imperil persons and property, defy received categories of legal reason, and flout the ways and means of Euromodern criminal justice. Of those practices, the killing of witches is perhaps the most acute affront to governance. Not only does it subvert the state monopoly over legitimate violence. It also calls into question the extent of cultural recognition actually afforded by the Bill of Rights. After all, the action taken against witches is justified by the belief that they present a clear and present danger to the lives of their compatriots and the well-being of their communities (cf. Auslander 1993; Ralushai et al. 1996; Geschiere 1997); also, by the allegation that government is putting citizens at risk, and thereby violating their rights, by failing to safeguard them from injury and death by witchcraft – an allegation given circumstantial weight by the incapacity of the severely over-taxed South Africa Police Services to cope with the forces of crime and disorder perceived to be pervading the country (Comaroff and Comaroff n.d.[b]).
Patently, this kind of cultural policing is a scandal that no modernist state can ignore; it inevitably calls forth efforts to police culture. And yet, under the new South African constitution, traditional African practices cannot simply be criminalized. Herein then, at its most raw, lies the contradiction, the antinomy between Culture and the Law, of which we have been speaking. It has provoked some extraordinary responses on the part of both the judiciary and those who appear before it; one of them being to play ingeniously on the difference between the procedures of criminal and civil law, another to ply the space between judgment and justice. This is most readily visible in the countryside, at a distance from the centers of governance. Here there is more room for experimentation in coping with the implications of Culture for everyday life in the postcolony. Here, too, the pragmatics of the African vernacular make themselves most pressingly felt. Here, tellingly, is where an Afromodernity is being forged – in the teeth of the formal stand-off between liberal universalism and the demands of difference – by ways and means ways that vex such tired notions as “hybridity” or “syncretism.”
Since the problem of the limits of liberalism and the pragmatics of difference – at least where we are concerned with it – has a great deal to do with postcoloniality, sui generis, we begin with a lateral move: a brief excursion into the life and times of “the” postcolonial nation-state in Africa.
REFLECTIONS ON THE POSTCOLONY
It is scarcely necessary any longer to note that “postcoloniality” – one of many contemporary terms marked by a prefixation on what they are not – refers to more than just “[the time] after colonialism” (Prakash 1995). Or to rehearse the fact that it means very different things to different people (cf. Darian-Smith 1996; McClintock 1992), be it a subaltern, “oppositional consciousness” (Klor De Alva 1995:245), a particular sort of “politics of…struggle” (Mishra and Hodge 1991:399), or the historical grounding of a species of literary criticism.4 And yet, in all the efforts to associate the term with a kind of sensibility, there has been a tendency to treat “the” postcolonial nation-state as something of a cipher on whose terrain arguments about the past, about identity, citizenship, consciousness, and other things, may proceed unencumbered by the bothersome details of actual histories, economies, or societies. Clearly, this is not the place in which to “theorize” postcoloniality, sui generis, whatever that may mean in this day and age. But, if sense is to be made of emerging forms of governance, politics, and popular subjectivity in post-apartheid South Africa, or elsewhere, a few thoughts on the topic are in order.
They have to do primarily with hyphe-nation, with the link between nation and state, state and nation. Some of them, perforce, reprise things we have discussed in other places (e.g. 2000, 2001).
The modernist nation, to recall Benedict Anderson (1983) and others, was erected on the often violent fiction of cultural homogeneity, on an imagined, if unevenly enacted, sense of “horizontal fraternity.” That imagining, it is often said, has always been more an aspiration than an achievement: the European polity, after Westphalia, is perhaps best viewed not as a singular, fully- realized, definite article but as an ongoing work-in-progress, one that has evinced a great deal of variation across time and space as it has sought to harness the forces of industrial capitalism – forces that have never been fully under its control. Furthermore, for all the idea, the idyll, that it was composed everywhere of right-bearing persons equal before the law, it excluded many from its political embrace and its commonweal. Typically, too, it was inhospitable to difference. Nonetheless, the fiction of a unity of essence, affect, and interest, of common purpose and civitas, underwrote the legitimacy of the state as sole guarantor of the collective well-being and individual entitlements of its citizens. Hence the hyphe-nation, the indivisibility of nation from state.
Much has been said in recent times of the so-called “crisis” of the modernist polity under the impact of global capitalism: of its shrinking sovereignty; of its loss of control over economic policy, cultural production, and the flow of people, currencies, and commodities; of a growing disjunction between nation and state (cf. Appadurai 1990). Whether or not “the” nation-state is alive and well, ailing, or metamorphosing – we prefer the third alternative – one thing is patent. The received notion of polities based on cultural homogeneity and horizontal fraternity, real or fictive, is giving way to imagined communities of difference, of multiculturalism, of “ID-ology” (Comaroff and Comaroff n.d.[b]).5 This is true even in places as long antagonistic to heterogeneity as the United Kingdom, which, despite recent race wars on the streets of its northerly towns, now projects itself, with apologies to Benetton, as United in its tolerance of Color and Culture. And in ones like Botswana, perhaps the only democracy in the world with a claim never to have imprisoned anybody because of her or his political convictions, and long regarded, if not altogether accurately, as relatively homogeneous. To be sure, the rising incidence of cultural struggles and ethnopolitics since 1989 has called forth a torrent of scholarly argument (see J.L. Comaroff 1996). There is no need to retrace that argument here. For present purposes, we merely need to note the fact.
For most postcolonial nation-states6 the politics of difference are not new. Heterogeneity has been there from the first. Born of long histories of colonization, these polities typically entered the new world order with legacies of ethnic diversity invented or exacerbated in the cause of imperial governance. Colonial regimes, intent on the management of racial capitalism, never constituted nations in the Euromodernist sense of the term, even where they gave their “possessions” many of the ceremonial trappings of nationhood. In their wake, they tended to leave behind them not just an absence of infrastructure, but a heritage of fractious identity struggles. This has been further attenuated, since fin de siecle, by some of the cultural and material corollaries of neoliberalism: the movement across the planet of ever more people in search of work and opportunities to trade; the transnational mass-mediation of signs, styles, and information; the rise of an electronic commons; the growing hegemony of the market and, with it, the distillation of culture into intellectual property, a commodity to be possessed, patented, exchanged-for-profit. In this world, freed is reduced to choice: choice of commodities, of life-ways, and, most of all, of identities. This at a moment when the moral and material processes that drive desire and fulfilment seem, ironically, to be less and less under local control. And when access to the means of survival, of accumulation and profit, are ever more polarized both within and across nation-states.
As this implies, postcolonies evince many features common to the modernist polities on which they have had, to a large degree, to model themselves. In coming to terms with the implications of global neoliberalism, they appear, in fact, to exaggerate – or, more accurately, to hyper-extend – those features; all of which makes it seem as if, in their temporal aspect, they are running slightly ahead of the unfolding history of the Euromodern nation-state. Perhaps they are harbingers of the postmodern future. But that is a topic for another time. Our focus here is on two corollaries of the founding of postcolonies not on homogeneity but on difference, not on deep horizontal fraternity but on a social contract among persons who are at once right-bearing individuals and identity-bearing subjects.
The first corollary has to do with the refiguration of citizenship. The explosion of identity politics after 1989, most notably in post-totalitarian societies, has manifested itself in more than just ethnic consciousness. Difference is also vested, ever more deeply, in gender, sexuality, generation, race, religion, life-style, and social class. And in constellations of these things, sometimes deployed in highly contingent, strategic ways. While most human beings continue to live as citizens in nation- states, they tend only to be conditionally citizens of nation-states: their composite personae may include elements that disregard political borders and/or mandate claims against the commonweal within them. In consequence, identity struggles of one kind or another appear immanent almost everywhere as selfhood is immersed into collective essence, innate substance, and primordial destiny (Comaroff and Comaroff 2001). What is more, the assertion of autochthony – which elevates to a first principle the interests, “natural” rights, and moral connectedness that arise from rootedness in a place of birth – has become an increasingly significant mode of exclusion within national polities; this, as Americans learned after 9/11, in proportion to the extent to which outsiders are held to undermine the Security of the Homeland or the Wealth of the Nation. It is, putatively, in the name of the latter that the state is becoming a metamanagement enterprise in the neoliberal world (loc. cit.):7 in the name of subjects who, even as they seek to be global citizens in a planetary economy of commodities and cultural flows, demand also to be shareholders in the polity-as-corporation. Herein, then, lies the complexity. The fractal nature of contemporary political personhood, the fact that it is overlaid and undercut by a politics of difference and identity, does not necessarily involve the negation of national belonging. Merely its uneasy, unresolved, ambiguous co-existence with other modes of being-in-the-world. It is this inherent ambiguity, we suggest, that makes the ostensible concreteness of concepts like “citizenship” and “community” so alluring.
Of the modes of being that constitute the twenty-first century political subject, cultural attachments are often taken, popularly, to run deepest. In many postcolonies, they are also the most marked. As we have said, ethnicity, like all ascribed identities, represents itself as grounded at once in blood and sentiment, in a commonality of interest, and, by extension, in “natural” right; one of the great ironies of our time is that identity has become, simultaneously, a matter of volition and self- production through consumption and a matter of ineluctable essence, of genetics and biology. Add to this the fact that culture is increasingly seen, and legally protected, as intellectual property (cf. Coombe 1998) – even more, as a “naturally” copyrighted collective possession – and the conclusion is unavoidable: we are witnessing the dawn of the Age of Ethnicity, Inc. (Comaroff and Comaroff n.d.[c]). It comes as no surprise, therefore, that several ethnic groups have formally incorporated as limited companies; that a large number of others have established themselves as businesses to sell not their labor power but their heritage, their landscape, their knowledge, their religious practices (loc. cit; see also, e.g., Halter 2000; Oomen 2002:135); that yet others have successfully sued for the unlicenced reproduction of their symbols, sacred and secular; that serious scholars are beginning to see the “sustainability” of cultures to lie in their marketing and branding (Chanock 2000:26). Even in modern China, Dirlik (2000:129) tells us,“ethnic groups…which were defined earlier through political classification, are… beginning to perceive themselves also as `natural’ economic groups”; note, here, the stress on natural. Thus it is that identity, in the age of partible, conditional citizenship, is defined, ever more, by the capacity to possess and to consume;8 that politics are treated, ever more, as a matter of individual or collective entitlement, of ID-ology; that social being in general, and social wrongs in particular, are translated, ever more, into the language of “rights.”
Self-evidently, in this light, the term “multicultural(ism)” is insufficient to describe the fractious heterogeneity of postcolonies. Demeaned in popular usage, it evokes images of Disney’s “Small World,” of college courses in non-Western literatures, of ritual calendars respectful of human diversity, and the like; in short, of benign indifference to difference. Neither as noun nor as adjective does it make clear the critical limits of liberal pluralism: that notwithstanding the utopian visions of some humanist philosophers, the tolerance afforded to culture in modernist polities falls well short of allowing claims to autonomous political power or legal sovereignty. In postcolonies, in which ethnic assertion plays on the simultaneity of primordial connectedness, natural right, and corporate interest, the nation-state is less multicultural than it is policultural. The prefix, spelled “poli-,“ marks two things at once: plurality and its politicization. It does not denote merely appreciation on the part of a national majority for the customs, costumes, and cuisine of one or another minority from one or another elsewhere. It is a strong statement, an argument grounded in a cultural ontology, about the very nature of the pluri-nation: about its constitution and the terms of citizenship within it, about the spirit of its laws and the division of its spoils, about its governance and its hyphe-nation. In South Africa this takes the form of an ongoing confrontation between Euromodern liberalism and variously expressed, variously formulated notions of “traditional” authority. And, by extension, the manner of their coexistence.
Talk of rights, of culture as property, of citizenship, constitutions, and contestation, brings us to the second corollary that flows from the heterogeneous social infrastructure of postcolonies. Whether weak or strong, intrusive or recessive, autocratic or populist, the regimes that rule them share one thing: they speak incessantly of and for themselves in the name of “the” state. Like those born of Euromodernity, postcolonial African states are statements (cf. Corrigan and Sayer 1985:30). They give voice to more or less authoritative worldviews, sometimes backed by military might, sometimes by carnivalesque ritual (Mbembe 1992), sometimes by mass-mediated shows of rhetorical force. But their language is not arbitrary.9 It is the language of the law. The modernist polity, of course, has always been rooted in a culture of legality. Its subject, as Charles Taylor (1989:11-2) reminds us, was, from the first, an individual whose humanity and dignity were formulated in a grammar of rights and legal privilege. The global spread of neoliberal capitalism has intensified the grounding of citizenship in the jural:this because of its contractarian conception of all relations, its celebration of “free” markets, and its commodification of virtually everything, all of which are deeply inscribed in the vernacular of homo juris. It has also required that received modes of regulation be redesigned to deal with new forms of property, possession, consumption, exchange, and jurisdictional boundaries (cf. Jacobson 1996; Salacuse 1991; Shapiro 1993).
All of this reaches its apotheosis in postcolonies, precisely because their hyphenation is so highly attenuated, because they are built on a foundation of irreducible difference, because they are endemically policultural. In them, the ways and means of the law – constitutions and contracts, rights and remedies, statutory enactments and procedural rituals – are attributed an almost magical capacity to accomplish order, civility, justice, and empowerment. And to remove inequities of all kinds. Note, in this respect, how many new national constitutions have been promulgated since 1989. Note also the explosion across the planet of law-related NGOs, Legal Resource Centers, Lawyers for Human Rights, and the like, whose offices are now to be found in the most remote of African villages. In South Africa, the language of legality has become so ubiquitous, the Constitution (in the upper case) so biblical, that virtually every organization has its own (lower case) analogue. There is even a Law Train that travels around the countryside offering free legal advice; its volunteer lawyers take pains to encourage all citizens to pursue their rights, and to address wrongs, by legal means.10 In the upshot – and, as we shall see, in ways both overdetermined and unexpected – the terminology of torts has come to loom large in the discourses and practices of the postcolony.
But why this fetishism of the law? In policultural nation-states, the language of legality affords an ostensibly neutral medium for people of difference to make claims on each other and on the state, to transact unlike values, to enter into contractual relations, and to deal with their conflicts. In so doing, it produces an impression of consonance amidst contrast: of the existence of universal standards which, like money, facilitate the negotiation of incommensurables across otherwise intransitive boundaries. Hence its capacity, most obvious under conditions of social and ethical disarticulation, of the loss of political ideology, to make one thing out of many, to carve concrete realities out of fragile fictions. Hence, too, its hegemony, despite the fact that it is hardly a guarantor of equity. As an instrument of governance, it allows the state to represent itself as the custodian of civility against disorder – and, therefore, as mandated to conjure moral community by exercising a monopoly over the construction of a commonweal out of inimical diversities of interest (Harvey 1990:108). It is this, to return to our point of a moment ago, that is made manifest in the rash of new constitutions written over the past decade or so. Each domesticates the global-speak of universal human rights, an idiom that individuates the citizen and, by treating cultural identity as a private asset rather than a collective possession, seeks to transmute difference into singularity.
It is an open question whether or not these constitutions, this obsession with human rights – indeed, the language of legality itself – yield empowerment to those who previously lacked it. They do not, after all, guarantee the right to a living, only to possess, to signify, to consume, to choose. Nonetheless, the alchemy of the law, like all fetishes, lies in an enchanted displacement, one that resists easy demystification: the notion, not altogether unfounded, that legal instruments have the wherewithal to manufacture something that was not there before, to yield social value, to achieve political ends, even to orchestrate social harmony (cf. Lazarus-Black and Hirsch 1994). Its charm also lies in the fact that it obscures the most brutal of truths: that, in the ordinary course of things, it is power that produces rights, not rights power; that law is itself a product of the political, not a prime mover in constructing social worlds; that it, alone, is not what separates order from chaos or an equitable society from a state of savagery.
Put together the fetishism of the law and the policulturalism of the postcolony, and the outcome seems overdetermined: a polity in which struggles over difference – in particular, struggles over the authority to police the practices of everyday life – tend to find their way into the legal domain. Often, indeed, into the dramaturgical setting of the courtroom. But here, surely, there ought to be an abrupt end to our South African story. To the extent that contestations over things cultural land up in the realm of the juridical, and to the extent that this realm is dominated by institutions of state, what chance of success have claims made under the sign of “tradition” against the hegemony of the Constitution, against the Laws of the Nation, against the ideological infrastructure of Liberal Democracy? This rephrases, in more general terms, a question we asked earlier. In a world regulated by Eurocentric jurisprudence, should we not expect that any assertion of Afromodernity, or any argument for the sovereignty of the Kingdom of Custom, would have little prospect of prevailing? Would not the latter simply fade away of its own accord – or under the pressure of the former? American critical legal theory would probably concur, given its tendency to align the law with the power of the state; others, not least those who see multiculturalism as inimical to democracy, would hope that they were correct.11 The matter, however, is not so straightforward. Reality turns out to be much more complicated, much more protean.
Apart from all else, the Kingdom of Custom is not dying out here. In some parts of South Africa, in fact, it is thriving (e.g. Oomen 2002); so much so that, in spite of the history of contempt evinced by the African National Congress for vernacular ethnicity – some of its cadres still regard “African tradition” as a colonial vestige – its official line has, increasingly, been to pay respect to cultural difference and to the authorities who rule in its name (Comaroff and Comaroff n.d.[a]). Recall, in this regard, Penuell Maduna’s plea for an African jurisprudence. At the same time, the ANC has tried hard to circumscribe the political salience of ethnic affiliations, among other things, limiting the role of local chiefs and kings largely to the ceremonial, the diplomatic, the pedagogic – and to the administration of minor disputes and matters of economic management (loc. cit.). This, self-evidently, is an outworking of the contradiction of which we spoke earlier, a contradiction framed, in South African public discourse, as a zero-sum opposition between Liberal Democracy and African Custom. But there is yet more to the story.
FROM TOUGH JUSTICE TO ALIBIS OF UNREASON
The Man Who Took his Neighbor for a Bat: Culture as Mistake
In South Africa, the voices of legal universalism have a ready response to relativism, especially relativism in the guise of “dangerous” customary practices. It is to insist on a clear distinction between culture and crime. As Seth Nthai, a former provincial Minister in Charge of Police, once put it, “Belief is not a problem of law and order. Violence is a problem of law and order.”12 The Constitution may allow citizens to believe in witchcraft;13 to act on that conviction, however, to kill a witch, is a felony. For its part, the judiciary, given its ideological grounding, has no option but to sustain this distinction: if a Euromodern system of justice is to work at all, it has to presume that the causes and consequences of illicit behavior are matters of empirically-verifiable fact. In so far as the motives for that behavior are taken to arise out of generic conditions of human being, out of anger, jealousy, desire, need, greed, they must, logically, override Culture – and, by extension, the relevance of culturally-specific imperatives.
As it turns out, a principled distinction between crime and culture is often hard to sustain, particularly in the remote reaches of the country, where the compelling force of custom is most keenly felt. And where the presence of the state is stretched thin. It is not merely that, to paraphrase Bourdieu (1977:2), there is a always some distance between the official road maps of “objective” law and the lived pathways of practice. We appear to be witnessing a historical shift: a shift arising out of the growing impact of a policulturalism that contests any hint of the criminalization of culturally-sanctioned life-ways. To make sense of this shift, let us take a step backward in order to move forward.
Note the following case, heard in the Venda Supreme Court in the late apartheid years.14 One Naledzani Netshiava, a 25-year-old, had killed his neighbor, Gumani, with an axe. Netshiavha pleaded guilty to culpable homicide, and provided a statement through his council:
I plead not guilty to murder.15 I deny that I intentionally caused the death of Gumani. I plead guilty to culable homicide in that I unlawfully and negligently caused [his] death. I had mistaken [him for] a bat and only later realised that I had struck a human being. The reasonable man would have foreseen that it was a human being and would not have killed [him]. I did not comply with the standard of the reasonable man, thus I accept [that I acted negligently].
Netshiavha added that he had always been on good terms with Gumani and had not wished him dead. But he had been very “frightened by what had been happening.” The bench, represented by one Judge Klopper, evinced no interest whatever in what might have prompted a man of indisputable sanity to confuse his neighbor with a bat. The question of belief or cultural motivation was never addressed. Klopper concluded that Netshiavha had indeed intended to kill and, seeing nothing to mitigate the crime, found him guilty of murder.
We shall return to this case. The judgment was later to be reversed. But mark here the invocation of the “reasonable man.” A concept with a venerable history alike in Roman-Dutch Law, in the South African courts, and in legal anthropology, it has loomed large in analytic discussions of comparative rationality; also in efforts to equate other ontologies with Western jural reason in evaluating intent and culpability across cultural divides (Gluckman 1965, 1967; cf. Wilson 1970). Interestingly, it is enjoying a new lease of life – both in jurisprudence and in popular discourse – as the Laws of the Land try to make peace with pluralism. Its invocation by Netshiava recalls a precedent, an appeal heard in the Umtata Circuit Court in 1933. That case, for reasons to be revealed in due course, has become something of a cause celebre. Here, too, the defense had argued that a killing was not murder but culpable homicide; again, on the ground that it had been committed in the “mistaken” belief that “a human being was an evil spirit.”16 The accused, Mbombela, had put a child to death on the assumption that it was a “tikolosh,” a witch familiar. In the original hearing, the judge had directed the jury to consider whether this “was a reasonable belief.” The standard to apply, he said, was not that of an “18-year-old native living…in his kraal,” but that of ”any reasonable person of his age.” Not surprisingly, the plea of culpable homicide was dismissed. Found guilty of murder, Mbombela was sentenced to death.
In the appeal, the presiding judge, Judge De Villiers noted that there was no suggestion that Mbombela was of unsound mind. Under Roman-Dutch law, as a result, he could only be excused by mistake of fact if that mistake was rooted in a bona fide belief – and a “reasonable” one. De Villiers went on to say that, “by the law of this country there is only one standard of reasonable man.” If a special plea could be made for “a native aged 18 years and living…in his kraal,” it would follow that “in each and every case the standard would have to be varied so as to suit the… accused,” his “mental and moral and temperamental and racial idiosyncrasies.” At the same time, he found it undeniable that Mbombela actually did believe that he was killing an evil spirit. On that ground he reduced the conviction to culpable homicide and commuted the death sentence, quite dramatically, to twelve months in prison.
Here we have an instance of what was to become a common strategy for reconciling legal universalism with cultural difference: the law saying one thing and doing another, muting its own convictions by commuting its sentences. We shall return to this as well. Let us merely underscore here the fact that, as the Mbombela case makes plain, for a killing to be exonerated, the killer had either to be “insane” or “mistaken.” If the latter, the mistake had to be based on a demonstrably rational belief. The tautology is obvious. It reduced African cultural reason to a cosmic error.
Alibis for Unreason: Culture as Madness
Although Mbombela and Netshiavha were tried over half a century apart, there was little difference between the ways in which the respective judges translated acts and facts deeply rooted in culture into the conceptual terms of the criminal law. Legal formality continues to demand that, when matters arising out of cultural alterity come to court, they be distilled into conventional judicial categories – murder, assault, and the like – and be evaluated according to “one standard” of individual responsibility.
And yet there is growing pressure, in the policultural world of the postcolony, to recognize that collective beliefs and practices do have consequences for criminal justice. In recent times, South African courts have begun to concern themselves more frequently, and explicitly, with cultural conviction – and, if we may be permitted the pun, with cultural convictions. The problem they face is how, precisely, those convictions are to be dealt with under the still hegemonic terms of Euromodernist legal rationality. One solution has been to allow that culture, rather than being treated as mistaken belief, be regarded as a legitimate mitigation of crime. Which also has unexpected implications.
Consider, in this regard, a case, fairly typical of its kind, from the High Court at Mmabatho, in the North West Province. Heard in 1995, it involved five young men accused of murdering Motlhabane Makolomakwa, the most prominent resident of Matlonyane village.17 Insisting that he had killed their fathers and turned them into zombies, the youths burned their victim to death (cf Comaroff and Comaroff 1999). The judge in the case did not hesitate to convict them of murder; each was ordered to serve twenty years. But he allowed two mitigating factors. One was “a belief in witchcraft”; the other, that, “on the day in question the [defendants] had also drunk liquor.” Here, then, culture is addressed directly. But it is a treated as a source of diminished responsibility, of a temporary loss of reason, on a par with intoxication. This decision echoes popular perceptions of the effects of witchcraft on those who kill under its influence: jailed murderer Anderson Tshibalo, for example, told a national TV audience in 1997 that those overcome by witches “lose consciousness” of their deeds.18
The invocation of cultural beliefs in mitigation by South African courts remains uneven,
however. Sometimes it rests on quite capricious assessments of the “sincerity” of those beliefs. This is particularly ironic because it is the alleged caprice of Culture, its irrationality, that is often used to justify the uncompromising application of universal legal reason – and to argue against any recognition of moral relativism. Indeed, the equation of Culture with unreason, coupled with judicial efforts to establish the sincerity of belief, can produce some odd effects. Thus an official of the Mpumalanga provincial government, charged with theft in 1998, pleaded that he had been bewitched to commit the crime. He was found guilty. Why? Because, said the magistrate, psychological testing had proven him “sane and aware of the consequences of his actions.”19 In other words, his claim to have been the victim of occult influence was a sham. Only if it could be established, scientifically, that he had been honest in that belief, that he had been unaware of the effects of his actions – and was, therefore, insane – could his behavior be explained by (un)reason of his cultural convictions. Which, at a stroke, were translated, by the language of the law, into a form of madness.20
These strategies, we stress, are all contingent ways of reconciling the law of the land with the policulturalism of the postcolony; a postcolony whose liberal Constitution presumes the juridical indivisibility of the nation-state and yet treats cultural difference as a matter of right. However well- intended they may be, they are notably unsystematic, sometimes incoherent. But they are not the only solutions to the problem of Culture discernible across the broad terrain of a criminal justice system whose own social geography is expanding in direct ratio to the recruitment of black legal functionaries. Other, more substantive efforts to deal with the problem are taking root elsewhere, often unnoticed – and in terms which, while framed in the hegemonic language of the law, strive to remap its lived semantics.
MIDPOINTS AND MEDIATIONS
The law is no good. The courts don’t believe in witchcraft… They should bring a proven witch into the court room. That would convince them. – Inspector Jackson Gopane21
An early foreshadowing of these efforts is to be found in a case of which we spoke earlier, the case of the man who mistook his neighbor for a bat. In 1990, over two years after he was convicted, Netshiavha was given leave to appeal.22 His wife, the first to testify, told how, on the night in question, she had heard a scratching sound and had seen a bat hanging from the rafters. Her husband – whom, she stressed, harbored no ill feelings for Gumani, the deceased – went to fetch an axe. One of his brothers then told the court how Netshiavha had left the house and “chopped a creature that resembled a bat.” Later, the two men had seen an unknown beast crossing a fence nearby. Netshiavha had followed it and hit it with the axe. Another sibling added that he had seen “strange animals” en route home that night. Reaching the village, he found his two brothers standing next to a body: it was a small boy with the face of a man. He went to call the headman. By the time they came back, however, the corpse had turned itself into that of the victim. The next day, the police found Gumani’s clothes and money neatly wrapped and covered by a stone; sure signs, these, of witchcraft. They also discovered the remains of two wild animals, apparently killed by a car on the road.
In addressing the court, defense counsel noted the difficulty of weighing up evidence in cases involving the occult. He stressed the absence of a motive for the murder. Presiding judge Richard Goldstone, now a Constitutional Court Justice, concluded:
Objectively speaking, the reasonable man postulated in our law does not believe in witchcraft. However, a subjective belief in witchcraft may…have a material bearing upon the accused’s blameworthiness…As such it may be a relevant mitigating factor…In my opinion…it offers the only explanation for the [killing].23
Goldstone insisted that Netshiavha had been negligent in wielding an axe against a man who had not threatened him. But he commuted the sentence to four years; in effect, to time served. In recalling the case, Justice Goldstone said to us, “I let him go.”
The fact that this case was revisited, and the manner of its hearing, pointed toward a growing recognition of the gravitas of difference in South Africa at the dawn of the postcolonial age. In the appeal, a much wider range of contextual evidence was allowed to establish a meaningful frame within which the rationality of Netshiavha’s actions might be read. True, judgment stops short of permitting Culture, as a collectively inhabited reality, to inflect the notion of the reasonable in law; being a matter of “subjective” belief, it did not remove culpability. But the court’s decision suggested a new seriousness in addressing the relationship of “African custom,” however illunderstood, to criminal justice.
That this judgment foreshadowed the spirit of the New Age is born out in another medium: popular cinema. Late in the 1990’s, a South African lawyer-film maker, Gavin Hood, made a movie entitled – over-determinedly, given what we have said – A Reasonable Man (Pandora Cinema, 1999). Hood, in fact, retrieved the record of the Mbombela case and updated it to explore the continuing ironies of crime, culture, and legal reason in the “new” South Africa. He himself plays a young advocate, a veteran of the apartheid era war in Angola, who happens upon a homicide in Kwazulu. A seventeen-year-old had killed the infant son of a neighbor, whom he took to be a tikolosh – recall, a fearsome witch familiar – moving under a blanket in the dark. As the case unfolds, Hood’s character is drawn into defending the fictional Mbombela. He is motivated by a parallel between the young man’s act of violence and a guilty secret of his own: under fire during a raid over the border some years earlier, he too had killed a child, misrecognizing its presence behind a door for that of a dangerous enemy. As it turns out, this device undermines the argument of the movie. For it shifts attention from the relativism of the “reasonable man” to the exoneration of the “reasonable mistake,” implying that the homicide was as much a justifiable error as it was a consequence of a compelling, culturally-validated reality – the tikolosh. Still, the film goes to great lengths to establish that ontological difference is an ineffable fact of life in the postcolony.
As the drama plays itself out, the liberal lawyer is sucked into the Zulu occult, culminating in a surreal encounter with a sangoma, a traditional healer, who exorcizes his own repressed demons – and forces him to realize that her beliefs are as capable as any other of producing compelling truths, of redressing deadly conflict, of dealing with disorder. Thus enlightened, he throws himself into an impassioned defense of his client before the judge, an upright embodiment of the ancient regime. On the epic terrain of South African history, he pleads, European “civilization” has been every bit as capable of giving rise to misdeed, even atrocity, as has African culture. Indeed, any culture. At least the would-be tikolosh-killer sought to protect his kith and kin. The voice of the law seems unwilling to acknowledge comparative rationalities, however: even if the beliefs of the accused were not unreasonable in their own context, his action indisputably was. To second-guess universal reason is to invite an infinite regress into chaos. In the end, the movie, like its protagonist, is undone by this liberal paradox. It fails to make the case that difference is less random disorder than ordered variation, that all systems of reason are bound by cultural and historical particularity. Instead, filmic fiction follows factual precedent, settling for a solution of the sort we have already come to expect. It allows the law to repudiate culture by adjudging Mbombela guilty, but to take it centrally into account in handing down an almost exonerating sentence. By this means – by allowing judgment to ignore difference but justice to be determined by it – the two sides of the equation are, if not finally resolved, then at least reconciled.
Intriguingly, a similar solution motivates an episode of the multilingual TV series, Justice for All, broadcast on SABC in 2000, which deals with a witch-killing in one of the northerly provinces. In it, a clear tension is portrayed between cultural justice and criminal justice. On one hand, the killer is treated by his community as a local hero, a perpetrator of cultural justice in the fight against evil; on the other, the criminal justice system handles the case as yet another superstition-driven homicide. Unable to dissolve the antimony, the court, cutting no slack to traditional beliefs, convicts the accused – and then, in the name of those very beliefs, suspends his sentence entirely. As he walks free, his kin and neighbors celebrate the result as a vindication of the force of custom.
Both in Goldstone’s Netshiavha decision and in media representations of postcolonial law, then, we see harbingers of a resolution to the problem of culture in the “new” South Africa; albeit one that, in principle, leaves intact the antinomy between legal reason and relativist heterodoxy, crime and custom. But how far does the strategic separation of judgment from justice really take us? Are there other ways of opening up a dialogue between liberal universalism and the dictates of difference?
THROUGH THE LOOKING GLASS, AGAIN
Let us pursue the question in another setting, a magistracy in the Tswana-speaking North West, where the law, ever more under African supervision, comes into daily contact with the pressing demands of Culture. Here, at the nether end of governance, legal code and local custom act upon each other in supple, surprising ways. Just how supple is exemplified by a case that deals differently with the same issues we encountered above: dangerous practices, occult beliefs, reasonable conduct.
We have seen that witch-killers may be tried in courts of law. Witches, however, are notoriously hard to indict under the provisions of Western jurisprudence; to wit, enlightenment reason denies the very existence of their arcane powers. It is still illegal, in South Africa, to accuse a person of witchcraft, even though most citizens actively believe in it; new legislation, currently under discussion, appears unlikely to accord the reality of its occult aspect any greater recognition than it now enjoys. That is why litigation arising out of magical malevolence has been so rare in the past; why, when it occurs, it is typically framed in terms that conceal its enchanted content; why, also, it is here that the problem of Culture for liberal modernism is most acutely posed. For there is, as we said earlier, a widespread perception that the post-apartheid state has failed to protect its subjects from the scourge of mystical evil. Nor is the perception new: colonial authorities also refused to accept the magical as a material fact, and insisted on criminalizing witch-finding, leaving African peoples feeling defenseless – and convinced that the Europeans were abetting the malevolent forces in their midst (Fields 1985).24 Many South Africans maintain that the Witchcraft Suppression Act of 1957 served to drive ritual malpractice underground (cf. Commission on Gender Equality 1999:22).25 Unsurprisingly, therefore, the advent of the postcolony, in the early 1990’s, saw the rise of assertive efforts on the part of local communities to rid themselves of an alleged upsurge of witchcraft, an “epidemic” that the ANC regime was no more capable of containing than had been its colonial predecessor. Precisely because of this – because they continue to confound secular reason and the legal capacities of the state – conflicts arising out of the African occult provide glimpses of the ways in which Euromodernist and Afromodernist sensibilities have perforce to reconfigure the ground on which they confront each other.
The conflict with which we are concerned here came to the Lehurutse magistrate in May 2000 on appeal from the chief’s court at Dinokana.26 It involved a healer, witchcraft, adultery, and attempted murder, though in the end, the matter was not defined in any of these terms. The magistrate, Noah Makabanyane, thought for some time about how to define the dispute, opting finally for breach of contract, and electing to sit with two assessors famed for their knowledge of Tswana custom.
The applicant in the case, Koketso Mogorosi, was an infant school teacher of limited means. The defendant Jameson Ntebalang, was a traditional healer, well known in Lehurutse for his mystical powers. Mogorosi testified that the dispute had begun in March 1997, when she had reason to engage a healer. She had been introduced to Ntebalang as a bona fide specialist, and while he did not examine her, he asked about her “troubles” (ditlalèlò; also distress, anxieties); she was in a menage a trois with a local headman and his spouse, whom she needed his help “to drive away.” Ntebalang told her that he would go to Botswana to procure the necessary medicine.
According to Mogorosi, Ntebalang duly gave her two packets of “herbs” at the cost of R470.27 She withdrew all her savings from the bank, some R400, to pay him; although the medicine, she said, lasted only two days. The healer then requested the rest of his fee, and a further R1500, the price of a beast, for the man who had actually “dug” the herbs. Mogorosi protested that she had yet to see results, but Ntebalang disagreed: she had, he insisted, “got her man.” She had not, though. Her rival remained living in the headman’s homestead.
Further treatments of various kinds had proved equally fruitless. But the healer nevertheless pressed Mogorosi for his fee. When she flatly denied any obligation to pay,28 Ntebalang took his case to the local headman, who found against him. Undaunted, he appealed to the chief at Dinokana, who ruled in his favor, ordering Mogorosi to pay a fine of R200 and the outstanding R1500. It was this judgment that Mogorosi was contesting in Makabanyane’s court.
Ntebalang was then permitted to cross-question Mogorosi, a Tswana jural practice not usual in South African magistrate’s courts. The healer advanced a very different story. Had Mogorosi not asked him for medicine to “deal” with – kill, that is – the legal wife of her lover? Had he, Ntebalang, not responded that he did not have “that sort of medicine,” but could procure it in Botswana at a price to which she had agreed? Mogorosi denied this. The two assessors then questioned her further: Was it not wrong to pay the healer without witnesses, and to engage in such a transaction without her parents’ knowledge?” Had Ntebalang really not examined her? On what grounds was he demanding R1500? The magistrate then intervened: Was Mogorosi still involved with the headman? No, she replied. He had subsequently made off with her own daughter.
For his part, Ntebalang reiterated that Mogorosi had approached him to dispose of her lover’s wife; he had responded by telling her that treatment of this kind was costly. She had agreed to a fee, which she undertook to pay once the medicine had done its job. Not long after, when he saw her in the village with a bandaged finger, she told him that she had come to blows with her rival at a social gathering. This, said the healer, was a sure “sign that the dipheko (medicine) was working.” And so he had set about trying to collect his due. She, however, claimed that, since she was no longer living with her “boyfriend,” the headman, there was no debt to pay. Ntebelang disagreed. Which is when he took his case to the traditional authorities.
Mogorosi then cross-questioned Ntebalang: If he really was a traditional doctor, why had he not examined her by means of divining bones? Why had he used his medicines against her, afflicting her rather than her enemy? One assessor then tried to gauge the extent of his professional competence; the other inquired whether he was actually claiming money for “chasing a married woman from her home.”29 Was this sort of activity acceptable to the “Dingaka Association,” the national guild that claims to regulate traditional healing in South Africa? Ntebalang said that he thought that it was.
At this point the case was adjourned. When it resumed, months later, Ntebalang was accompanied by a witness, his wife. She supported his version of events, elaborating on one point only. When Mogorosi had made her lethal request, the healer had warned her that it was “painful” to put a person to death; her phrasing here implied both moral and physical distress, distress to both victim and perpetrator. He had recommended a less drastic potion: one that would simply destroy all affection between the man and his wife. Both parties had agreed to this, she insisted, her testimony being designed to counter the implication that Ntebalang was guilty of witchcraft at its most lethal. But the assessors challenged her evidence. Their final questions were telling: “If a traditional doctor causes a person to flee from home, is that witchcraft or healing?” one asked. “It is witchcraft,” answered the wife. “Should a witch be paid for his actions?” “No,” she said, “but the medicines must still be paid for.”
In light of the lateness of the hour, the case was adjourned until 4 February 2001, but the defendant was unable to attend court that day. The proceeding was thus remanded for a further five months. As the due date approached, Magistrate Makabanyane told us that Ntebalang was in prison for petty theft. It looked like Mogorosi’s appeal might be postponed indefinitely.
The court recorder, a middle-aged woman, agreed that the case might never reach conclusion, albeit for different reasons. Whatever the assessors might have implied, she said, Ntebalang was a potent practitioner. Among his powers was an uncanny capacity to elude detection and to escape custody. Once, when apprehended during the 1980’s, he simply disappeared from his cell during a lunch recess. Someone later suggested to us that he might, on that occasion, have turned himself into a bat. In another celebrated instance, as he was being chased for house-breaking, he is said to have transformed himself into an anthill. A policeman, the story goes, actually leaned on him – or, rather, on the anthill – without realizing what, or who, he was up against. We did not think it appropriate to ask why, with these talents, Ntebalang had been unable to extract his money from Koketso Mogorosi. For his part, the magistrate was less taken by the defendant, whom he referred to, with legal precision, as a “so-called ngaka (healer).” He should know. Noah Makabanyane, chief magistrate of Lehurutse, had himself grown up in the household of a particularly eminent healer.30
Although it ended inconclusively, this dispute opens up a unusual angle of vision onto the discursive place of the law in the postcolony. It also cuts a stunning swathe through the spare lives of people at the impoverished edges of the North West Province half a decade after the end of apartheid. Ostensibly about an unpaid debt, it embraced many things, all of them of great salience in rural communities: how women seek to sustain domestic relationships amidst economic uncertainty and moral flux; how the occult is mobilized to that end; how, in an era of rampant fraud, the bona fides of healers may be verified; how contracts are to be enforced; how fragile are the norms that govern interpersonal interactions under conditions of extreme scarcity. In short, how culture, in the vernacular sense of the term, is pondered and policed from the bottom up.
We have noted that, under the prevailing Act, itself a reformulation of British colonial law, it is illegal to practice or accuse a person of witchcraft.31 We have also noted that new legislation is unlikely to grant the reality of the African occult, preferring to reduce it to a species of material practice – notably, to the use of indigenous pharmacopeia and, in particular, poisons – thus to displace a critical problem of Culture into the simple empiricism of criminal forensics (Commission on Gender Equality 1999:22).32 Meanwhile, as Mogorosi v. Ntebalang shows, the ways and means of the arcane arts, in all their cultural clothing, are openly entertained in African magistrate’s courts; vide how, in this case, the knowledge and skills of a healer were put to the test by expert assessors. There was never any hint that their interrogation would not be part of the official proceedings. Neither the legal status nor the facticity of witchcraft are on trial here. On the contrary, they underpin the judicial process. Magistrate Makabanyane told us that, like several other colleagues, he was planning to include a ngaka, a traditional doctor, as a permanent assessor on his bench.33
Here, then, in a remote court run by a Tswana magistrate, is an instance in which the contradiction between Law and Culture in the “new” South Africa is confronted – and, in the most mundane, most unobtrusive of terms, a radical dialogue charted. Here contemporary African concerns are addressed without offending Euromodern legal reason, without taking even the shortest step down the slippery slope of eth(n)ical relativism into a Hobbesian world of moral chaos. There is, it seems, something beyond Leviathan. What we have seen through the window of an unassuming public building in Lehurutse may be peripheral. But it tells us something important about the present and future of the question of heterodoxy in South Africa. About the manner in which Afromodernity – a labile, more or less self-conscious ensemble of signs and practices, dispositions and discourses, theories and forms of knowledge, with reference to which a specifically African sense of the contemporary is being fashioned – is assuming its place in a world of liberal modernities.34 About Culture less as heritage or commodity, less as a sign of racial marking or an alibi for difference than as the description of a more-or-less open repertoire of styles, a mode of conduct, a set of pragmatic values always under (re)construction. Less as a proper noun, that is, than as an adjective: a thoroughgoing qualification to everyday life in the postcolony.
CONCLUSIONS, OF VARIOUS KINDS
Three observations are to be made about the ways in which matters cultural entered the realm of legal reason in Noah Makabanyane’s court.
The first, to which we have already alluded, concerns the framing of the case. While patently about witchcraft – about a criminal conspiracy to attempt murder by arcane means – the suit was phrased as a breach of contract, with reference not to the legalities of Ntebalang’s occult activities per se, but to their implications for the social and material relations in dispute. In this way, a “dangerous,” exotic cultural practice was treated as neither dangerous nor exotic. Rather, it was made justiciable – although, by the letter of the law, it should not have been. Of course, the evidence in the record could, technically, have been used to indict the healer for his mystical machinations and Mogorosi for conspiring in them. But, even if the state had wanted to prosecute them, it would have been very difficult: apart from anything else, nobody could be shown, forensically, to have suffered from their conspiracy. In instances of alleged occult practice, after all, it is usually impossible to establish a direct link between cause and effect. Which is what makes it occult in the first place.
Second, the Lehurutse tribunal refused to regard the African occult as a question of belief. It assumed, as do all Tswana, that witchcraft (boloi) belongs to the domain of cultural knowledge and everyday conduct. But a critical qualification here, one that recalls what we said earlier of culture, sui generis, in the lower case: Setswana, the local version of things African, has always been a labile, growing, more-or-less open ensemble of ways and means (see e.g. Comaroff and Comaroff 1991), one that, in its encounters with other worlds, has absorbed and experimented with, transformed and appropriated their practices – including, significantly, aspects of European jurisprudence (Schapera 1943), democracy, and other elements of modernity; in this respect, African customary law, which has always been responsive to historical conditions (Schapera 1970b; Roberts and Comaroff 1978), is much more like the common law in Europe than the dehistoricized, timeless chimera made of it under colonialism (see e.g. Moore 1986). The fact that Makabanyane’s court treated this case as arising out of a collective lifeworld, had a number of corollaries. Above all, it removed the need to evaluate the sincerity of the parties involved. Once cultural usages and expectations are no longer seen as a matter of personal persuasion, once they are taken to be the contextsensitive frame in which humans live out their lives, they become, by extension, the salient terms in which disputed behavior is to be assessed. Moral relativism, under these conditions, gives way to social contextualization: actions are judged by virtue of standards – Afromodern standards being wrought, in the pragmatics of the present, out of Setswana, the common law, the new Constitution, and whatever else comes to hand – deemed normatively apposite to the circumstances of the conflict. It is such norms, not abstract canons of universal reason, that are the measure against which the court decides culpability. Thus, while Makabanyane acknowledged the power of traditional healing, while he understood why Mogorosi might have gone to a specialist for help, while he appreciate the customary calculations that infuse the kind of agreement in question here, he did not exempt Ntebalang from legal or ethical evaluation. Law and Culture, in other words, did not require to be reconciled here because no antinomy between them was recognized to begin with. In the end, of course, Mogorosi won a victory of sorts: her appeal might not have been resolved, but, for practical purposes, Ntebalang’s disappearance voided her debt to him – and, with it, the finding of the chiefly court.
The third point is procedural, but crucial. It moves us back, from Lehurutse and postcolonial South Africa, to the generic question of law, culture, and difference. Ntebalang v. Mogorosi, observe, was tried not as a criminal matter but as a civil suit; not as arising out of a conspiracy to commit murder, or out of a fraud, or out of any other kind of felony, but out of breach of contract. This is in line with much “traditional “ African jurisprudence, which makes no distinction between the criminal and the civil; it also resonates with a global explosion in the resort to tort law to settle scores that elude conventional political and legal mechanisms. Because the case was handled thus, it escaped the purview of the Witchcraft Suppression Act, indeed the criminal law tout court. Civil actions require different standards of evidence everywhere: they are less concerned with forensics than with the circumstantial; with evidence, that is, which is socially and culturally sensitive to the context out of which the dispute arose. As a result, questions of abstract reason and legal principle are rendered secondary. And more flexible procedures may be followed. Remember how Noah Makabanyane allowed the litigants to cross question each other and encouraged ritual experts to interrogate both of them; all of which interpolated vernacular judicial routines into the formal workings of the justice system. The general point is clear. Once criminal cases are transposed into civil ones – once criminal justice becomes cultural justice – practices like witchcraft may be treated as a matter-of-fact reality.
In sum, what we have here, in Noah Makabanyane’s court, is a practical philosophy under construction (cf. Evans-Pritchard 1937). Thus it is that “dangerous” practices are made more tractable to legal reason. Thus it is that the conundrum of heterodoxy may be confronted. Thus it is that, largely unremarked, an organic African jurisprudence comes to infuse the One Law for One Nation. Thus it is that the distinction between Euromodernity and Afromodernity is renegotiated, the content of each redrawn. Thus it is that colonialism gives way to postcoloniality. How common are the processes we have described? Hard to say. But the signs, many of them, are readily evident in the courts of the North West. Clearly, as we have said, there is greater leeway for experiment in more remote institutional contexts and in situations perceived to pose little threat to public order. Homicide, for example, is an altogether different, more difficult species of problem; although, as the two O.J. Simpson trials demonstrated in the USA, civil proceedings may yield judgments in cases of violent felonies that are much more socially acceptable, and credible, than those of the criminal justice system.35 It is also a matter of record that there have been campaigns – among them, one in the Netherlands in the 1980’s – for the radical reduction of criminal (in favor of civil) justice, even in the instance of murder; similarly, that, in banning capital punishment, the South African constitutional court invoked, as one of its justifications, ubuntu, the principal of African humanity, thereby interpellating into the law of the land a fundamental sociomoral tenet of Afromodernity. But, more important here, it is not spectacular felonies that make up the vast bulk of journeyman jurisprudence, day in and day out, over the length and breadth of the country. It is the most mundane of misdeeds and misdemeanors. The very kinds of thing that brought Ntebalang and Mogorosi before magistrate Noah Makabanyane.
It is not only in the legal domain that the ways and means of an Afromodernity are being actively forged. Parallel process are occurring in the spheres of religion, education, business, the media, the expressive arts, and elsewhere. But the challenge of policulturalism to Euromodernity is most acutely felt in the realm of the juridical – precisely because liberal democracy, and with it the hyphenated scaffolding of the postcolonial nation-state, is so deeply inscribed in the sovereignty of One Law. This is all the more so in neoliberal times: times in which the promise of constitutional empowerment, of liberation, meets the privations of a deregulated economy; times that are not just postcolonial but post-proletarian; times marked by a growing inequality of means; times in which the appeal to Culture, as a primordially-ordained “natural” right, has become part of the quotidian language of entitlement; times in which ideology gives way, in quickly measured steps, to ID-ology. In these times, a politics is emerging that, for reasons we have spelled out, turns autonomically to the law to redress social disarray, moral decay, material deficit. That this politics fails to engage the architecture of the new capitalism in South Africa, that it merely skates its surfaces, is a constant, and serious, plaint of social critics; turning class actions into class action, or into any other kind of cogent collective dissent, appears as an anachronism. But the mutating landscape of the law – or, more precisely, the metamorphosis of politics into law – is changing the terms in which postcolonial realities are experienced, understood, negotiated.
What we have narrated, then, is a dialectic-in-motion, an historical process that pivots on the horns of a contradiction. Dating back to the dawn of colonialism, when the earliest evangelists of Euromodernist enlightenment sought to rule peoples they defined as parochial and culturally other, this contradiction is reproduced in especially acute form in neoliberal polities. As we have said, there is no resolution to the antinomy between (i) the One Law for One Nation, its unremitting commitment to legal universalism under the new Constitution of South Africa, and (ii) the primordially-sanctioned demands of heterodoxy in this policultural society. Progressive philosophers and jurists may wish there were a resolution; some have written programmatic blueprints for plural democracies, appealing to concepts like multiculturalism, hybridity, and syncretism in pursuit of a vision that, so long as it seeks to encompass diversity within the hegemony of a Eurocentric liberalism, must remain entrapped in its own paradoxical formulation (Comaroff and Comaroff n.d. [a]). But, as long as the Bill of Rights and the precepts of Custom diverge, as long as the former is given priority over the latter, until one relinquishes sovereign authority to the other – which is highly unlikely, given the political demography of difference in South Africa – the contradiction will not, cannot, go away.
Nonetheless, as the Lehurutse case indicates, those who toil within that contradiction, those who have perforce to produce a practical jurisprudence at the impasse between Law and Culture, find contingent means of doing so, means that often go beyond both the Law of the Land and the Kingdom of Culture. In this, they resort less to “hybrids” or “syncretisms” than to a living, growing vernacular modernity. This Afromodernity is being fashioned out of constituent elements taken from a wide variety of (re)sources. It is the voraciously creative process out of which the postcolony is being made. In seeding itself on ground long monopolized by Euromodernity, the Afromodern gives play to a pragmatics of difference in ways that challenge the limits of liberalism as never before. From the bottom up. Thus are humble new beginnings, new imaginaries, being forged in those undersides, those margins, of the “new” South Africa that most of its citizens call home.
In December 2002, Limpopo Province police announced that they were to indict a sangoma, a healer, for performing a “magic ritual” on two murder suspects: he had allegedly smeared them with goat’s blood to make them invisible to officers of the law.36 What the healer had done, they said, was no different, legally, from harboring a fugitive. Optimistic that they would win a conviction, they insisted that the act of abetting a felony, even if by witchcraft, is itself always a crime of commission. Note here, one last time how protean, in practice, is the distinction between Culture and Criminality. By these lights, of course, Ntebalang would probably have been charged of conspiracy to commit a homicide and found guilty. The public prosecutor in the Limpopo incident, Jan Henning, was less sanguine about the ease with which matters magical reduce to criminal forensics: “It is going to be very interesting…to see how the courts handle evidence on whether ritual to make the boys invisible was effective. It could turn out to be a very difficult case.”