Legality, Modernity, and Ethnicity in Colonial South Africa

An Excursion in the Historical Anthropology of Law

Publication Date:

Journal: Law, Society and Economy: Centenary Essays for the London School of Economics and Political Science 1895-1995

Reissue Date:

Editors: R Rawlings

Publisher City: Oxford


In The Campaign, a Carlos Fuentes novel of colonialism and liberation in South America, there lurks, amidst a welter of heroic acts and epic events, a brief, enigmatic exchange:

`The Law’, says one revolutionary, `is the greatest thing imaginable.’

`That’s true’, answers his compadre, `because it’s absurd.’
A luta continua. The battle goes on. But the revolutionaries–alibis all for Fuentes’ reading of history–agree to one thing: the almost absurd centrality of law in both European overrule and the struggle against it.i

As with Latin America, so with Africa. It has become commonplace to remark the salience of the legal culture of Britain in the colonization of the continent; commonplace to assert its role in the fashioning of new European hegemonies, in the creation of subjects of Empire, in the rise of various forms of resistance, in the demands of so-called “Third World” peoples for both individual rights and collective entitlements.ii

Perhaps the most coherent statement of received wisdom is to be found in Martin Chanock’s consistently insightful writings on the invention of customary law.iii Treating property, after Bentham, as the quintessential context in which rights and legalities are constituted, conjured with, and called into question, he argues that European colonizers took possessive individualism iv to be the axiomatic basis of civilized society; the corollary being that private property was unknown in “savage” Africa. Early administrators, themselves caught up in the optimism of the age of revolution in Europe, encouraged “natives” everywhere to embrace the idea of indivi- dual rights in the name of a universal modernity, in the cause of effecting the “evolution of human societies from status to contract”.v But in due course, Chanock goes on, colonial govern- ments did a volte face, claiming that communalism and customary law, not individualism and a law of contract, were more “naturally” African. The reasons for this change of heart? If Tswana or Zulu or Ngoni or whomever had no idea of rights, only premodern “customs”, it was easier to dispossess them of their land, easier to extract their labor power, easier to legitimize their subordination to a superior European In short, the practical stress on communalism and custom, and the concomitant erasure of rights, was “hugely convenient” for the colonial state.vii As Stamp puts it, somewhat summarily:viii

Customary law, as distinct from precolonial jurisprudence, was introduced…as a tool for pacifying and governing the colonized peoples. While elements of preco- lonial jurisprudence survive in customary law, they have been made to serve the needs of the capitalist colonial and postcolonial states.

But is it all quite so simple? The answer, of course, is no. Apart from all else, the manner in whi- ch British legal sensibilities and practices entered into colonizing processes, into their dramatic gestures and prosaic theaters, turns out to have been much more complex, less audible, murkier, than is often suggested. And a great deal more contradictory.

Let me offer a foretaste of my concerns by observing a rupture in the received narrative of the connection between colonialism and law in Africa. On one hand, we are told how the colonial state denied Africans the very rights they themselves essayed as the sine qua non of modernity–enforcing, instead, a custom custom-built for the purposes of political control. Yet we are also told how some agents of imperialism–most notably, but not only, missionaries–succeeded in inculcating distinctly modernist ideas of private property and possessive individualism; of ownership, citizenship, and civil rights.ix

Surely there is a paradox in all this? In the fact that, while colonial officials perpetuated the “premodern” by eschewing individual rights for Africans, their righteous compatriots, colonial evangelists, sought to do the exact opposite in the name of civilization? This paradox, I shall argue, was not a superficial tear in the otherwise seamless fabric of imperialism. To the contrary: it reveals many of its contradictions, many of the disjunctures that were to play into the (re)making of Africa–its structures of ethnicity and class, gender and generation–and the forms of resistance to which they would give rise. It also reveals that, for all their materialities and brutalities, colonial regimes were shaped as much by cultural forces as by the facts of political economy; as much by those seen now as bit-players as by the heroes inscribed in history books. For the colonial process was never monolithic, never merely a matter of States and Politics. And, far from being an encounter between two clearly defined “sides”, all the parties involved were as much remade by it as it was by them. In all this, moreover, in the building of new identities, of newly imagined worlds of possibility and political reality, the discourse of rights and rightless- ness loomed increasingly large.

But I am running ahead of myself. I mean here to explore how the civilizing mission, in nineteenth-century South Africa, sought to instill new forms of subjectivity, sovereignty, and identity among “the (Southern) Tswana”, today recognized as one of South Africa’s larger ethnic groupings. In this, the discourse of rights was not only to feature centrally. It was to feature paradoxically. For it played itself out simultaneously, polyrythmically, in two cultural registers: one may be dubbed the register of radical individualism, the other, the register of primal sove- reignty. The first, based on the liberal modernist idea of citizenship, was to express itself in the individuation and internal stratification of black South Africa, in the rise of its new elites; the second, founded on a mythos of premodern “tribalism”, was implicated in the historical genesis of such ethnic groups as “the” Sotho and “the” Tswana. The coexistence of these two registers within the colonial discourse of rights had some less-than-obvious consequences. For one thing, it established a repertoire of signs and instruments by means of which it was possible for colonizers to divide and dominate others within a racialized world. But it also laid out the terms in which those “others” could strike back. As this implies, it is to the cracks, crevices, and contradictions of the colonial discourse of rights that we may look for the seeds of modern South Africa’s troubled identity politics.


Nonconformist evangelists first settled permanently among the Southern Tswana (Bechuana)x peoples in the 1820s. The vanguard of the British presence in the South African interior–overrule was only to occur in 1885–they were, of all colonizers, the most far-reaching in their imperial vision, seeking not to rule Africans but to reconstruct their very being. I cannot, in this context, say much about the contemporary Tswana world, save for the fact that it was caught up in a period of subcontinental turmoil, allegedly sparked by the rise of the Zulu state, which destabilized many communities in the interior and gave evangelists access to several chiefdoms, whose rulers saw advantage in whites with guns, commodities, and the capacity to protect them by diplomatic means.xi

Nor shall I say much here about the background of the evangelists. Their civilizing mission was an epic quest cast in the fervent images of a rising bourgeoisie in Europe; images that spoke in an optimistic, democratizing voice of the values of universal truth and rational knowledge, of the capacity of man–as we all know, it was a deeply gendered fantasy–to bend History to His own Heroic will. The terms of this vision are familiar. They are, to be sure, part of our own cultural heritage. Among them, two themes–tropes, really–featured with special clarity at the frontiers of Empire.

The first was the modernist figure of the civilized, radically free individual. An autonomous citizen, this person was ideally possessed not only of private property, but, as importantly, of a divided, hyphenated self; one that could be self-conscious, self-righteous, self-made, and, as Foucault would have us remember, self-disciplined.xii Much has been written on the nature of modern personhood; much of it suggesting, as Taylor puts it,xiii that “[w]hat is peculiar to the modern West” in this regard–and, especially, to the “bourgeois ethic”xiv–is that the respect accorded to human beings is “[formulated] in terms of rights”; specifically, of universal “sub- jective right[s]”,32 enjoyed by “disengaged subjects”.xv The larger this universalist image of right-bearing Man loomed in the discourses of English modernity,xvi the more it was assumed to be absent from “savage” sensibility. Almost all of the early missionaries told tales of people dispossessed or put to death at the summary command of an African “king”;xvii the premodern monarch, it seems, had a whim of iron. This picture of an Africa lacking all civility, citizenship, and civil rights was to persist for a very long time. Indeed, writing in a philosophical key more than a hundred years later, Margaret MacDonald xviii echoed a view shared by early nineteenth-century missionaries: “[O]nly at a certain level of intellectual development do men claim natural rights. Savages do not dream of life, liberty, and the pursuit of happiness. For they do not question what is customary.”xix It followed that only self-interested, self-obsessed human beings might be, in both senses of the term, right-minded.

The second trope of salience to the colonial mission was the emerging European nation-state. Conceived as a secular universe of persons who were free and equal before the law, it was held to share language and culture, territory and history, values, sentiments, and interests. This, of course, is the “imagined community” of which so much has been (re)written lately: the modernist polity that, as ideological formation, came to maturity in the age of revolution, 1789-1848. And it was constituted as a state in the double sense of being both a political order and a condition of mind-and-being.xx As such, it had become the taken-for-granted social space in which the right-bearing citizen was implanted, in which modern subjectivities paraded as political subjects. Founded on a social contract and codified law, it was the measure against which other, more “primitive” modes of government were to be evaluated and remodeled. After all, declared long-time Superintendent of the London Missionary Society in the Cape Colony, the Rev. John Philip,xxi “the character of a people depends on the influence of the laws and govern- ment under which they live.” By this criterion, unsurprisingly, Southern Tswana were to be found lacking: Edward Solomon,xxii in specifying what was particular to their “government” in the mid-nineteenth century, offered sadly that “They have no regular code of laws,…[but] customs…to [which] they rigidly adhere.”

These, then, were two of the more significant tropes born to the tropics and beyond by evangelists and other Europeans. They were to figure with special force in the colonial process.

The onslaught of the colonial mission on the Southern Tswana occurred on many planes and in many places at once. In particular, it sought to release “the tribal African” from his “simple socialistic life”. It is here that the first register of the discourse of rights, the register of radical individualism, was to play itself out.

The Politics of Personhood

To the extent that no practice was too petty, no “tradition” too trifling to escape evangelical attention, the struggle to refashion African individuality saturated the daily routines of the Protestant mission. Nor was the concern of the Christians with “ordinary life” itself coincidental. The “affirmation of the everyday”, Taylor stresses,xxiii was integral to the bourgeois idea of the new civility. On the assumption that Southern Tswana learned by mimesis and habituation, their lessons were conveyed primarily through living example and “kind conversation”.xxiv And they began with the “native” body. The Nonconformists were quick to grasp the relevance, for colonizing purposes, of the management of the gendered human physique; all this long before Foucault or Van Gennep or Bourdieu. They also sensed the link, analogical and substantive, bet- ween bodily politics and the body politic: it was the Rev. Philip,xxv not Emile Durkheim, who first commented that the “different members of a state [are] beautifully represented by members of the human body.”

Southern Tswana bodily practices were seen by the evangelists to be nakedly promiscuous. Their clothing was “scanty”, their skins “greasy”, their habits “dirty”, and their sexuality uncon- trolled. And so the Nonconformists sought to cloth them in European garb, all the better to close off their bodies from one another; to disseminate “modern” notions of hygiene, all the better to control their bodily extrusions; to speak to them of the Godly virtues of monogamy, all the better to contain their sexuality; to have them live in nuclear families, all the better to confine females to the home, and to put men to honest work in the field.

Where better to address all this than in the context of marriage? xxvi The documentary record shows not just that the missionaries tried especially hard to reform Southern Tswana conjugal relations, but that, in doing so, they relied heavily on the language of legality. The point was to do more than simply convince men to marry monogamously, in church, and without “buying” their wives. It was to persuade them to treat the wedlock as a contract, an ensemble of enforceable rights and duties, and to disseminate a legalistic view of selfhood sui generis. To the Nonconformists, moreover, matrimony and the family were also the key to those most vital sites in the struggle for modern personhood: property relations and material life.

It was here, in fact, that the lessons of radical individualism were most avidly taught and the “communal” tendencies of Africans most fiercely fought. Once the principles of private ownership and property rights were inculcated, believed the evangelists, all the other bases of modern right-bearing citizenship might take root.

In order to teach these principles, the Christians set out first to purchase the land on which to plant themselves, their churches, and their gardens. They insisted on ownership: their rights had to be clearly given, clearly grasped by the Africans, so that they might learn to do the same.

In 1820, Robert Hamilton “bought” ground from a local man, “the first…ever purchased in the Bechuana country.”xxvii A few years later, Robert Moffat could himself report that the “ground belonging to the Mission…was purchased…for 40 lbs. of beads.”xxviii And this in spite of the fact that the missionaries knew well that the Africans found their gestures, and the very idea of “sale”, utterly incomprehensible.

Once they had their land, however, the evangelists went about enclosing and planting gardens. Here they enacted their everyday theater of Protestant industry: Act I, the forceful conversion of nature into private property; Act II, the cultivation of a fruitful field by self-pos- sessed labor; Act III, the harvesting of individual wealth and value to be enjoyed as just reward for virtuous toil. Immediately around their stations, we are told, some Southern Tswana took these practical lessons to heart. By 1842, at one settlement, “numerous gardens…[had] lately been walled in” and were being brought under cultivation. At another, “sixty large gardens [had] been enclosed, and upward of two thousand trees planted.”xxix The dawn of African modernity, it seemed to the optimistic missionaries, lay just beyond the horizon.

As it turned out, their optimism proved premature. Beyond the compass of the mission stations, the privatization of commonage made little sense to Southern Tswana. Neither agri- cultural nor pastoral land was scarce here: it had no exchange value, was held by chiefly favor, and was given to social groups, in de facto perpetuity, as the basis of their membership of the po- litical community. All this notwithstanding, the Nonconformists did not give up their efforts to inculcate “healthy” individualism. The most tenacious among them was John Mackenzie, a “humanitarian imperialist” with ambitious plans to make Bechuanaland into a Wordsworthian xxx paradise of enlightened, land-owning yeomen. xxxi In a treatise aimed at the British parliament and public, Mackenzie argued that every African “ought to feel that his house and his cornfield are his own.” Many Tswana, he said, perhaps more sanguinely than accurately, now saw the disadvantages of living in concentrated “traditional” villages, far from their fields and cat- tle-posts; they would prefer to stay, like European farmers, at their own smallholdings. Already there were instances “where Bechuana industry [had] turned [a] mere cattle or hunting station into a civilized man’s farm.” Given the introduction of private property–and freedom from chiefly command– might not Bechuanaland become a haven of African enlightenment and prosperity?

The tireless Mackenzie seized every opportunity to convince those Southern Tswana who were not yet persuaded of the benefits of adopting European practices. Take this fragment of a reported conversation between himself and a local ruler:xxxii

“You should fully face the change that has come and is coming. In the olden time you had all your gardens and cattle stations, and no one interfered with the one or the other. Now you see the coming wave of white men…Where they find open country they will build and put in the plough, and will tell you that the unoccupied country is God’s and not yours. But white men respect hard work, and if you improve your houses and your lands you may depend on it no English officer would dispossess you…Why not meet together once more as a tribe…and introduce a better custom as to land? Every fountain or farm should be apportioned to him who cultivates it, and he should have a title to it ac- knowledged by the tribe.”
“But”, said the chief in response, “there is great deception about papers–the European agents deceive stupid people, and white men find ways to take away the land.”

Here, over the issue of dispossession, is where the liberal idealism of the mission ran up against the raw realities of the colonial frontier. And where the evangelists found it necessary to modify the kind of propertied personhood of which they dreamed–or leave their would-be converts open to the rapacity of other colonizers.xxxiii And so:

“I have thought of all that”, [Mackenzie] replied. “You ought to have individual rights and title-deeds, but it ought to be printed on every one of them, `Not saleable–not transferable’.”

This was a new idea–individual titles, but unsaleable. It was declared on all hands that this would exactly meet their case…[the] idea of individual right to land beyond the power of the clever agent.

How this form of title differed from existing tenurial arrangements is not obvious. It may have sustained the fiction, for the evangelists, of private property. But the Africans gained nought. To wit, as they knew, it was the very language of “papers”, of title and rights, that was being used by Europeans to expropriate African land. Somewhat less triumphantly, Mackenzie reports another conversation: xxxiv

“…why don’t the white men stay in their own country?” said some intelligent natives to me one day…”Perhaps it is [the Queen] who sends them. Some say this is the English mode of warfare–by `papers’ and agents and courts.” This was said with contempt.

In short, Mackenzie’s text discloses the emerging contradictions of the colonial frontier, a world 11 in which the worldview of the mission stood little chance against white expansionism, avarice and overrule. But more of that later.

I reiterate that the domain of landed property was not the only one in which rights talk and radical individualism were centrally involved in the effort to remake Southern Tswana personhood. There were many others: the effort to construct a domestic sphere, enclosed in a residential architecture founded on the British idea of “home”;xxxv the treatment of the church as a rule-governed, voluntary association made up of spiritually autonomous individuals; the estab- lishment of schools in which pupils were subjected to individualistic disciplinary regimes; the practical dissemination of notions of time and money, of free wage labor and the private estate, of refined consumption as a reward for virtue; and so on and on.

In what measure, then, did the evangelists succeed in implanting the modernist individual on African soil? This question is not simply answered. For now, however, it is enough to note that one of the effects of colonialism, of its unresolved dialectic, was to set in motion complex processes of class formation, leaving the late nineteenth century Southern Tswana world divided into a mass of poor peasant-proletarians, a small bourgeoisie largely associated with the mission church, and a population of “middle” peasants caught precariously in between. For those trapped, at the behest of colonial capitalism, in a promiscuous cycle of underpaid migrant labor and un- productive agriculture, the Christian message made little sense: these people had no prospect of being propertied and found themselves with ever diminishing rights. For middle peasants, both the Protestant ethic and the promise of capitalism held greater attraction; material pressures, though, tended to push them toward the abyss of poverty. For the elite, as we would expect, identity with the ideology of the civilizing mission grew increasingly strong. But everyone, whatever their ideological orientation or social status, now lived in a colonial society dominated by the authoritative rhetoric of rights –even if, for most black South Africans, those rights were experienced either by their absence or, worse yet, as instruments of dispossession.

But the discourse of rights, as I said, was not restricted purely to the register of radical individualism. It was also to resonate in the language and the practices of primal sovereignty.

Before the arrival of the European evangelists, it seems, there were no Bechuana in Bechuanaland, merely batho, “human beings.” Or so says Mackenzie: xxxvi

The name Bechuana is a word used at an early period by white men to denote the tribes of Batlaping and Barolong, with which they first came into contact. These people do not use the word of themselves, or of one another; nevertheless, they accept of it as the white man’s name for them, and now begin to use it themsel- ves…The Bechuana belong to the large Bantu family of people.

Not only did the Europeans name “the Bechuana”. They contrived for them an ethnology, dividing them into “tribes” and ascribing to them a primordial identity based on common ances- tors and origins, language and customs, sentiments and interests.xxxvii So much so, that most – early missionary texts came to include an elementary classification of tribal groups and material on economy, society, religion, government, and “natural” characteristics. This material later found its way into ethnographies, dictionaries, grammars, maps, typologies of languages and “dialects”, and, perhaps most significantly for the formation of ethnic consciousness, into vernacular school texts. It was also to prepare the ground for the cultural geography of South Africa, the ethnoscape on which colonial rule (and, later, apartheid) was to be built.

Ethnic consciousness, I would argue, always has its roots in encounters between peoples who mark their asymmetries–in power, in historical imaginings, in political ambitions and economic ends–by cultural means; collective identity is everywhere a relation, nowhere a thing.xxxviii Regarded thus, the construction of “the Bechuana” as “a people”xxxix–their transition, that is, from humanity to ethnicity–occurred initially in response to the terms in which they were challenged by colonial evangelists. This challenge took the form of an unremitting insistence that the Africans give coherent account of their own practices–and hear, from men and women schooled in the universalist sureties of enlightenment knowledge, why European ways were the more rational, the more advanced. And why, therefore, things local ought forever to be put aside. Consequently, Southern Tswana found their own culture, now dubbed setswana, objectified by contrast to sekgoa (“European ways”).

The documentary record is replete with conversations about the differences between setswana and sekgoa. These account are revealing. On one hand, the evangelists often claimed that Tswana pronounced the ways of the whites clearly superior.xl On the other, we are told that they “could not see…anything in [European] customs more agreeable…than in their own.” Worse yet, they would–sometimes “laughing extravagantly”–“pronounce our customs clumsy, awk- ward, and troublesome.”xli In truth, the Africans seem to have been more bemused than amused. They found it hard to understand why setswana and sekgoa should not coexist as the Europeans enlightenment, with their absolutist post-enlightenment notions of universal knowledge, insisted they could not. Thus, as the colonial encounter took its course, many would cull new cultural practices from the fusion of the two. Meanwhile, however, they responded to the Nonconformists’ demand to choose between customs, knowledges, deities by recourse to a bland, baffling relativism: “the God of the Whites,” said a rainmaker to the insistent Robert Moffat, “dwells in the south…the Bootshuana God dwells in the north.”xlii Neither should covet the terrain of the other, he implied. And neither was about to take himself off.

It goes without saying that the content of any ethnic identity is a product of complex, drawn out processes; being a fluid ensemble of (variously empowered) signs and practices, a living culture is forged not merely in conversations, but also in the minutiae of everyday action–and sometimes in the course of struggle and contestation. Here, however, I wish to highlight three things about the manner in which Tswana identity was re-presented by the evangelists back to the Tswana themselves and, then, to the whites of colonial South Africa.

First, “the Bechuana” were portrayed as a people governed by “custom” (mekgwa: the word now had vernacular denotation). No matter that they were ruled by different chiefs. No matter that they lacked any overall political identity, nor even, until now, shared a proper noun. Every last one of them was, allegedly, bound together by an allegiance, an ineluctable attachment, to setstwana, the ways of their ancestors; it was their very “nature”, moreover, to follow these ways without question.xliii Which is why, explained the missionaries, it had been so difficult to sow the seeds of “healthy individualism” among them. Even when they took on the trappings of civiliza- tion, they still “prefer[ed] the customs in which they [had] been brought up. In short, the primal sovereignty of setswana–seen here as a kind of social glue which bound people together–was inherently presumed to be conservative, communal, antimodern. By very virtue of being ethnic Bechuana, these Africans were benighted subjects in a prehistoric kingdom of custom. Echoes here of an idea which, until recently, enjoyed wide currency in Anglo-American social science: that ethnicity is inimical to modernity. Also, its corollary: that the removal of difference is a sine qua non of the worldly progress toward universal civilization.xliv

Implicit both in the invention of the term “Bechuana”, and in the imputation of a shared allegiance to the primal sovereignty of mekgwa, lay a vision which spread largely unremarked among colonial evangelists: the vision of a supra-tribal Tswana ethno-nation. Here lies the second point: that, increasingly, “the Bechuana”, in the singular, were represented as a grouping with common concerns above and beyond those of the highly autonomous chiefdoms which formed their everyday political communities (see below). At times, in fact, this entity was depicted as something akin to a primitive European nation-state. This becomes clear from a novel about a scientific expedition to South Africa written by Jules Verne in 1872. Taking its ethnographic background from early mission texts, it tells of the arrival of the scientists at a Tswana capital and of a ceremony in which they and the local ruler pulled each others’ noses “according to African custom”. All of which, wrote Verne, made the Europeans into “naturalized Bechuanas.”xlv

It was a short step from the conclusion that Tswana shared a collective identity to the assumption that they “naturally” shared rights and interests. And so, from the 1830s onward, the missionaries allude repeatedly to what might harm or advance the commonweal of “the Bechua- na people.” Here, as elsewhere, the road from primal sovereignty to the “rightful” claims of an ethnic group was tarred with chimeras, myths, mirages. But it was also paved with good intentions. Take just one striking instance: at the Bloemhof Commission of 1871, set up to adjudicate the territorial disputes that had arisen after the discovery of diamonds along the fron- tier, the Southern Tswana were represented by Joseph Ludorf, a WMMS missionary.xlvi

Although they were “awarded” a portion of the land–having lost much of their country to white settlers–Ludorf feared that it would nonetheless be seized by the neighbouring Boer republics. Consequently, he drafted a manifesto for a “United Tswana Nation”. Ludorf went on to propose the establishment of a representative parliament, a bounded territory, an army, a judiciary, an independent economy, and a constitution that fused setswana and European statecraft.xlvii The plan came to nought. But some years on, two “Bechuana” polities were established, albeit as colonies of the United Kingdom: British Bechuanaland (later absorbed into South Africa to be- come, under apartheid, Bophuthatswana) and the Bechuanaland Protectorate (after 1966, Botswana). The role of missionaries in their formal creation is a complicated issue.xlviii But there is no denying that colonial evangelism made these ethno-national polities thinkable in the first place. It also shaped the kind of collective consciousness that persuaded Southern Tswana them- selves to respond to overrule in ethnic terms. Thus, for instance, the first local newspaper owned and published among these people–by prominent mission school alumni–was called Koranta oa Batswana, “The Newspaper of the Tswana”. This newspaper began to give voice, in the ver- nacular, to a “national” culture and to “national” interests and concerns.xlix In time, such Tswana voices would come to speak easily in terms of collective rights and entitlements. In 1884, for in- stance, the ruler of the Tshidi-Rolong, a large Southern Tswana grouping, agreed to a treaty with the Crown written in the following terms:l

I give the Queen to rule in my country…I give her to publish laws and to change them when necessary, and to make known the modes of procedure of the courts, and to appoint judges and magistrates, and police, and other officers of government as may be necessary, and to regulate their duties and authority…[Also] to collect money (taxes)…which will go to defray the expenses of the work done in this country by the Queen; and to levy court-fees, to impose fines, and to employ the money thus obtained according to the laws of the Queen.

And in 1903, his heir would ask the Colonial Secretary, on behalf of his “Nation”,li to recognize “our rights and privileges as loyal citizens”. This kind of rhetoric, which became the common tender of colonial diplomacy, was uttered with growing fluency by local leaders. And once its terms were internalized, in the parole of “tribal” politics, they were duly extended to ethno- national imaginings. That is how Tswana came to speak in the modernist argot of entitlements and legalities about a political community that did not exist, a community that was imagined for them long before it was imagined by them.

Third and finally, parallel to the construction of Tswana ethnicity went the progressive erosion of chiefly authority; this being a result of interventions on the part of the colonial state which I cannot describe here. Ironically, the more Tswana asserted a collective identity based on “traditional” affinities, the less any “traditional” political figures had the wherewithal to represent them. Some royals, it is true, remained quite influential into this century; a few, on occasion, took it upon themselves to act on behalf of “the Bechuana”. But such things occurred less and less as the administrations of British Bechuanaland and the Cape Colony undermined local au- thority and divided as they ruled: the objectification of “the Bechuana,” as an ethnic group with an awareness of its own objectives, unfolded amidst a deepening legitimation crisis. Or, more properly, in a deepening political void. It was a void that would only be filled when new bases of black political association, action, and representation began to emerge in South Africa during the twentieth century.

Drawing all this together, then, the discourse of primal sovereignty led to the construction of “the Bechuana” as an ethnic group with “inalienable” rights. At the same time, however, setswana, the primal “stuff” that made these people what they were, was taken to be inescapably primitive; the kind of thing that had to be erased if Africans were to be made into moderns. The fact that the precolonial Tswana world had had its own elaborate repertoire of rights, its own theories of sovereignty and representation, its own practices of personhood and property, simply went unrecognized.lii

In the colonial discourse of rights, as this suggests, primal sovereignty had a paradoxical, impossible quality. In order to make “the Bechuana” into civilized moderns, it was necessary to unmake what it was that made them Bechuana in the first place, to remove the differences that made them different–notwithstanding that it was the civilizing mission that had conjured “them” up to start with, at least in this form. But that is only where the paradoxes began. Colonialism in many parts of the world led to the invention of groupings, with no previous existence, that were said to have rights which were only made palpable by virtue either of their absence or of their being given up. It was only because “Bechuana” land was being seized by Europeans that “Bechuanaland” was said to exist by right and to require protection (if only so that it might be “voluntarily” alienated to European control); only because indigenous authority was being superseded by the state that a right to sovereign autonomy was articulated (if only so that local rulers might formally “petition” for European overrule); only because the language of command had become English that the right of self-expression in Setswana was essayed (if only so that Tswana might submit to the Crown in their own tongue). Here, in short, was a world of virtual realities, in which things were reified primarily by the recognition of their non-being. But there was also something more sinister at issue. Since people were held to have rights as a consequence of their membership in an ethnic group, it was also possible to remove those (or other) rights on the same basis. As we shall see, because of its putatively “premodern” in- frastructure, primal sovereignty was to be used to limit, dispossess, and disenfranchise Tswana from the time of colonial overrule onward. But more of that in a moment.


Contradictions, recognized and unrecognized

Most of the evangelists saw no disjuncture, in the discourse of rights, between the register of radical individualism and that of primal sovereignty; indeed, they did not explicitly distinguish them at all. The effort to implant modern individualism might have pointed toward a society of free universal citizens, while the conjuring up of a primordial Bechuana identity gestured toward the creation of ethnic subjects. From their perspective, however, the two things were part of a seamless campaign to rework the indigenous world, the latter describing that world as it was, the former as it ought to be. One, in short, was a narrative of being, of congealed “tradition”; the other, a narrative of becoming, of revealed “modernity”.

In fact, for the mission and later the colonial state, the universal citizen and the ethnic sub- ject, liberal individualism and primal sovereignty, were conditions of each other’s possibility. British colonialism was everywhere two-faced, everywhere a double gesture. On one hand, it jus- tified itself in terms of difference and inequality: the greater enlightenment of the colonizer legitimized his right to rule and to civilize. On the other, that legitimacy was founded, ostensibly, on a commitment to the eventual erasure of difference. Of course, had the difference actually been removed, the bases of overrule would themselves have disappeared. It was not; they did not. Colonialism, in short, promised universal rights but kept the ruled in a state of relative rightlessness; it promised individual advancement but produced ethnic subjection. In South Af- rica as elsewhere, the discourse of radical individualism and modern personhood bore the promise; the discourse of primal sovereignty and ethnic subjection, the brute reality. It was by virtue of the latter, too, that “the Bechuana” were engrossed within a larger, more inclusive form of marking, of coloration and devaluation: that of race, in which all shades of non-European ethnicity, all kinds of colonial otherness, were finally submerged.

Double Consciousness, Double Standards, and the Denial of Rights

As I have already intimated, the chimera of primal sovereignty was to be used to disenfranchise and disable black South Africans, especially by the cumulative actions of the colonial state, sometimes in opposition to the mission. In this respect, recall my earlier point that Southern Tswana, one and all, had been familiarized with the authoritative rhetoric of rights by the realpolitik of the frontier; that some discerned in it the “English mode of warfare”; that others, most notably the rising elite, had internalized the Protestant ethic and the spirit of liberal individualism. It was predictable, then, that “the Bechuana” should fight the implications of overrule in the language of individual and collective entitlement, invoking it to protest against their loss of autonomy, the seizure of their territory, the imposition of taxes, the conditions of wage labor, and so on; and that colonizers should speak back in the same language, often wielding it as a blunt instrument.

Let me give just one example in lieu of a history of the struggle over rights in this colonial theater. It concerns a Land Commission set up by the British authorities in 1886 to clear up conflicting territorial claims among local “tribes”, and between them and white settlers, thus paving the way for overrule. Among the disputes heard by the Commission was a wrangle between two neighbouring chiefdoms over some remote pasture in their mutual borderland. Montshiwa, the chief to whom it was awarded, used the occasion to press for the introduction of individual land ownership, registered by title-deed. A canny ruler, he had learned well the language of liberal individualism and was aware of the salience of private property to the British. Among other things, Montshiwa had been persuaded that, if freehold were granted and deeds lodged with the government, the latter would have to protect Tswana owners from settler expro- priation. What is more, he argued the case in a manner that would have done any utilitarian philosopher proud: those who had occupied the land, he said, deserved to own it because they had “improved” it. And they would do so even more if they had secure, permanent, heritable pos- session.liii

The Commission rejected the argument on the ground that “the Bechuana” were “not ready” for individual ownership; governed still by primal custom and primitive communalism, they were insufficiently civilized. The old “tradition”, whereby the chief was the owner of land as custodian for the tribe, ought yet to prevail. As a subsequent Commission, the influential South African Native Affairs Commission (1903-5), was to say in its Report, “the Native population as a whole instinctively cling to and cherish the communal system.”liv What is more, the Report went on:lv

[While] it is largely held to-day, that individualism is ultimately conducive to greater industry, enterprise and production,..our limited experience has not in all cases furnished proof of this.

Having been told for almost a century that “healthy individualism” was both the means and the measure of their move toward modernity, black South Africans were to be informed that, even if they no longer “cherished” their communal ways, their kind of individualism was somehow dif- ferent, somehow lesser. More immediately, however, in dismissing Montshiwa’s case for private tenure, the Land Commission of 1886 simply ignored the fact that most of the intended recipients of titles were highly educated mission school alumni and members of a propertied new middle class. To wit, the Commissioners never deigned to ask who the landowners would actually be. Their rationale for rejecting the request–the tacit appeal to the sovereignty of custom–did not admit a discourse of individuation. Even more, it actively denied it. After all, the nub of primal sovereignty is the specious notion that, in their “natural” (instinctive?) attachment to their ways, ethnic subjects are all alike, faceless, nameless.

In short, the Commission of 1886, like innumerable others to follow, did not just deny the possibility of individual property (and other) rights in the face of indigenous demand. Nor did it merely abort a move in the direction of liberal individualism. It also negated the collective capacity of a community and its leaders to remake their own world by due process. Until overrule, Tswana chiefs regularly legislated changes in social policy, often transforming institutional, residential, and material arrangements in response to historical contingencies and shifts in popular opinion.lvi Prior to the British presence, there was no reason why Chief Montshiwa should not have introduced some form of individual tenure through internal le- gislative procedures. Certainly, other Tswana sovereigns had made laws (melao) in the spirit of liberal modernity. But official administrative practice effectively put paid to that possibility by asserting the primal sovereignty of custom above all else. At a stroke, the historical dynamics of Tswana politics were severely debilitated.

This, I stress, is just one example. There are many more. From the notorious Land Act of 1913lvii through a series of laws, proclamations, and other measures, “non-Europeans” were de- nied individual rights or prospects of citizenship. The process began when the Commission of 1903-5 recommended that blacks should only have limited, indirect franchise.lviii And it culmi- nated in the thoroughly racialized culture of apartheid, which was legitimized by direct appeal to primal sovereignty: to the notion, first, that “natives” naturally preferred their own traditions over the alien practices of European modernity, and ought therefore to live by them; and, second, that they lacked the enlightenment, as individuals, to determine their own being-in-the-world. But that is a well-known story, a terrible tale that runs right up to the present.

Colonialism in South Africa, then, from its genesis in the civilizing mission to the age of apartheid, inculcated in Southern Tswana a double-consciousness to match the two-faced character of the discourse of rights itself.lix One and all, they were encouraged to embark on the road to modernity, to fashion themselves into citizens of the civilized world. At the same time, as black Africans, they were made into ethnic subjects, ineluctably tied to their fellows, to their primal origins, and to the customs which marked them as premodern. Precisely because of the paradoxi- cal, polymorphous nature of the discourse of rights, as I said before, Tswana came to know themselves, and their objectified “tradition”, at once by attribution and erasure; by virtue of a po- sitive construction of identity and by its negation. Setswana, to those who shared it, was a highly valued possession, the cultural product of a proud history. Yet, through much of the colonial epoch, “the Bechuana” had to hear that it was better set aside. Is it any wonder that resistance to overrule should have taken root in the crevices and contradictions of their colonial experience, on the terrain between its promise and its reality? Or that Tswana should have contested European domination sometimes by asserting their universal rights as citizens of empire, some- times through outburts of violence, rites of rebellion, and uprisings that bore the distinctive stamp of setswana? These forms of protest–which came to give voice to the double consciousness of the colonized, racialized, class-confined ethnic subject–have hardly been restricted to South Africa, of course. Ethnicity everywhere at once constructs people, placing them definitively in the world, and effaces them, submerging their individuality and opening them up to the captivity of othernesses. In some circumstances, it also affords them a basis to contest the con- tours of the world as they find it. Clearly, the discourse of rights is one of the terrains on which all of this occurs, especially under colonialism. For Tswana, it was central in shaping their identi- ty, past and present.

And future.

Contestation: Back to the Future

In the recent (and ongoing) struggle over the destiny of South Africa, the two dominant styles of formal black political engagement–represented (if not exhausted) by the African National Congress (ANC) and the Inkatha Freedom Party (IFP)–are each heir to one of registers in the colonial discourse of rights. The ANC has always stuck close to the ideology of liberal modernism implanted by the Protestant mission. It grew out of the South African Native National Congress (SANNC), formed in 1912 to protest the Land Act, and was led primarily by mission products, many of them Southern Tswana. The SANNC spoke the language of civil and constitutional rights, relying heavily on rhetorical styles learned in church. In its dealings with successive governments, moreover, it took a line more notable for its liberal, non-racial in- dividualism than for its populism. Ethnic affiliations were deliberately ignored: the SANNC was steadfastly supra-tribal, even pan-African, in its composition and its horizons, and avoided any hint of identity politics. It was also emphatically British in orientation and, for a very long time, non-violent in its technologies of protest. As we all know, its efforts were not rewarded. While there were some important differences, lx the ANC retained much of the style of its predecessor. It continued, and continues still, to talk the language of rights and universal citizenship; as Hobsbawm recently intimated, lxi it sustains a commitment to a classically European form of nationalism. lxii Significantly, in negotiating the future, its leaders have paid painstaking attention to the promulgation of a liberal democratic constitution–even while being pressurized to concede collective rights and protections along ethnic and racial lines.

By contrast, the assertively Zulu-centric IFP owes its origins to the politics of primal sovereignty; in particular, to the creation, under apartheid, of “homelands” for tribal groupings constructed during the colonial era. The ideology and political style of Inkatha has always been ethno-nationalist in tenor: since cultural identities run deeper than any other kind of attachment, goes the familiar argument, their bearers have a natural right to determine their own affairs and to be ruled by their own (“traditional”) authorities. The objective here is to secure collective enti- tlements in a loosely federated, pluralistic polity. The kind of politics that pursues this objective is typically fought along lines of ethnic cleavage, and with so-called “cultural” weapons, both verbal and violent. The colonial discourse of rights–its contradictions, paradoxes, and perver- sities intact–continues to make itself felt as a new dawn rises on the South African post- colony.lxiii


A concluding point. Or two.

Colonialism, pace received wisdom, was never a monolithic movement through which an expansive Europe imposed itself, systematically and inexorably, on the peripheral populations of the planet. It may have been a world-historical process. But it played itself out in multiple registers and in disconcertingly ambiguous ways. Never just, nor even mainly, an affair of states and governments, an epic orchestrated by heroic figures, it was carried on in thousands of contexts, both mundane and magisterial, by castes of characters with different means and ends. What is more, it was often a very messy business, wherein Europeans–settlers, evangelists, capitalists, administrators, army colonels–fought among themselves to impress their wills on the bodies, the being, the terrain of insignificant others. These differences among the colonizers, to be sure, did not do much to ease the experience of the colonized. Still, they did create an awareness of fissures in the seams of European domination; fissures at which local resistance of varying kinds was directed as the effects of overrule made themselves felt.

Note, too, that many of the “civilized” practices exported from Britain to the colonies were anything but uncontested at the metropole–not least rights to property, to fair labor conditions, to the franchise. As even a cursory reading of J. S. Mill makes clear, lxiv peasant proprietorship and private small holding were not deeply entrenched in the English countryside, despite efforts to essay their virtues by, among others, Mill himself. Some contemporary “condition of England” novels, like Disraeli’s Sybil, actually rehearse the arguments for and against individual tenure;lxv and they suggest that struggles over civil and constitutional rights in the colonies were implicated in debates about the situation of the British working class at home.lxvi Patently, the imperial frontier was not a place where a mature ideology of rights was presented, fully tried and tested, to premodern Africans. It was a space in which the unfolding sociolegal and political histories of Britain and Africa met–there to be made, reciprocally, in relation to each other. Indeed, colonialism, in the nineteenth century, was as much about reconstructing metropolitan England in the image of a triumphant bourgeoisie as it was about enlightening blacks abroad.lxvii

In this respect, an important qualification: for all its association with legalities, the introduction of a modernist discourse of rights to “the Bechuana” and other African peoples was not merely a matter of law. It involved a cultural revolution. For this discourse bore within it an elaborate ideology of personhood, of social contract, of material relations. The fetishization of rights, in short, was itself part of an embracing worldview. In such a culture, the language of legal entitlement appears liberatory; which is why colonial evangelists saw liberal individualism as an emancipation from the enchantment of custom and communalism–and from the tyranny of tradition and the chiefship. For Tswana, things seemed somewhat different, somewhat less sanguine. It always does from the perspective of the colonized. Endowed with a culture whose faiths and fetishes were not the same, they were quick to learn–to return to Carlos Fuentes’ The Campaign–that “[without] equality…all rights are chimeras”, that the law may indeed have been the greatest, most absurd thing imaginable (above, p.1). On one hand, it was a devastating instrument of warfare, like no other in its capacity to annihilate and dispossess without being seen to do anything at all. And yet the appeal to rights was a means that, over the long run, came to be used by black South Africans in self-protection. Not always successfully, and not always in the same way, but not always in vain either. Shades here of African American critical race theory. More to the point, it often seemed to be the only real means to hand, since it was part of the technology of rule on which rested the inequalities and disablements from which they suffered. This is why the language of the law sui generis is reducible neither to a brute weapon of control nor simply to an instrument of resistance. The inherently contradictory character of the colonial discourse of rights–its duality of registers and the double consciousness to which it gave rise–ensured that it would be engaged on both sides of the dialectic of domination and defiance. It still does. Everywhere.

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