Annu. Rev. Law Soc. Sci. 2011. 7:X--X
doi: 10.1146/annurev-lawsocsci-102510-105436
Copyright © 2011 by Annual Reviews. All rights reserved
1550-3585/11/1201-0000$20.00
<DOI> 10.1146/annurev-lawsocsci-102510-105436</DOI>
MOORE
DISMANTLING AN APARTHEID STATE
THE LEGISLATIVE DISMANTLING OF A COLONIAL AND
AN APARTHEID STATE
Sally Falk Moore
Department of Anthropology and Harvard Law School, Harvard University, Cambridge,
Massachusetts 02138; email: smoore@wjh.harvard.edu
Keywords
Tanzania, South Africa, land reform, Truth and Reconciliation Commission,
semiautonomous social fields, cultural pluralism
 Abstract
In the 1960s, social scientists speculated about what the consequence of legal,
cultural, and racial pluralism would be in Africa after independence. Now, 50 years later, we
know that, though transformed, cultural pluralism remains a shaping force. In Tanzania, from
the 1960s on, there was an effort to build equality and national loyalty through socialism. In
South Africa, after 1994, there were two major kinds of legislation that rejected the racially
divisive past and attempted to repair its damage. One established the Truth and Reconciliation
Commission; the other was a cluster of laws that designed a scheme of land reform. Both have
been studied by anthropologists. Here, I review the Tanzanian and the two South African
instances. The incompleteness and unevenness of what was achieved can be compared with
the grand legislative intentions that preceded the law making. This has profound implications
for the analysis of social process and for the relationships among the state, its ambitions, and
its citizens.
1
INTRODUCTION
Working as an anthropologist on Kilimanjaro in the early years of Tanzania’s independence
from colonial Britain, I witnessed the introduction of many legislative and administrative
changes involved in installing a socialist regime, promoting national loyalty, and
encouraging ethnic group differences to fade. The particular efforts I observed were directed
toward reforming an obedient but not enthusiastic population. In Tanzania, among other
things, government-directed institutional innovations were designed to convert supposedly
self-interested Tanzanians into caring-for-others socialists. National integration was the
ideal. The effect of socialism was intended to be not only legal and social but also mental.
As President Julius Nyerere wrote in 1966, “Socialism, like democracy, is an attitude of
mind” (Nyerere 1966, p. 162).
For a host of historical reasons, regime reconstruction in South Africa since 1994 has been
very different from that in Tanzania. Fortunately, some detailed analyses of the South
African situation have recently become available. Two particular domains of postapartheid
South African legislation have been observed in detail by anthropologists: the Truth and
Reconciliation Commission (TRC) and the program of land reform. Under the aegis of the
TRC, victims of the apartheid government were encouraged to speak for the record about
abuses they had experienced, and officials were allowed to confess to abuses they had
perpetrated in the hope of being granted amnesty. In the same period, but extending far
longer, a sequence of legislative acts provided landless citizens with the opportunity to
apply for the restitution or allocation of land and specified the conditions under which this
could be done. The two excellent fieldwork studies of the consequences of these pieces of
legislation are Richard A. Wilson’s (2001) The Politics of Truth and Reconciliation in South
Africa and Deborah James’s (2007) Gaining Ground? ‘Rights’ and ‘Property’ in South
African Land Reform.
These books epitomize the change in anthropology since the first burst of African
independence in the 1960s. One question that preoccupied some academics in the 1960s
2
was what constitutional changes might be necessary to bring about national integration in
these deeply divided, but newly independent, countries. As many saw it, for Africa, the big
obstacle was the multiethnic organization that had previously been cultivated by the
colonial regimes.
The academic conjectures of the 1960s and the 2010 reality, of course, are very different.
But what is of interest in this early discussion of cultural and legal pluralism are the
theoretical frameworks that were generated to imagine the future of the postcolony.
Thinking about national legislation forced social anthropology to leap out of its customary
preoccupation with the customs and traditions of particular peoples to pay close attention to
the constitutional organization of multicultural polities.
This issue did not go away. Almost half a century later, John and Jean Comaroff remarked
on the continuing legal importance of group cultural differences within modern nations
(Comaroff & Comaroff 2009). With their customary verve, they argue that there has been
an increasing “recognition of greater heterogeneity,” that this “begets more law,” and that
the political is being displaced into the legal (pp. 37, 46). Their essay roams the globe.
Although it cites examples from a wide range of venues, it frequently draws on the
Comaroffs’ deep knowledge of South Africa.
They call attention to the resurgence of identity politics in South Africa, including the claim
by Zulu, Xhosa, Tswana, and others “to rule and be ruled according to their own customary
ways” (Comaroff & Comaroff 2009, p. 42). They go on, “The struggle for sovereign
indigeneity---and against Euromodern liberal democracy, conventionally conceived---seems
to be spreading across the legal terrain of the country” (p. 44). In writing about this
resurgence of indigeneity, they refer to it as “Afro-modern” law. Although their essay is in a
book edited by the von Benda-Beckmanns, who have made substantial contributions to the
study of pluralism, the Comaroffs eschew the language of legal pluralism (p. 44). They see
the next move in anthropology as a shift from an orientation toward legal pluralism to one
that focuses on law and governance. In many respects, the approach the Comaroffs have
called for is already well under way in the profession.
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Thus, in this review, I describe the early academic interest in legal/cultural pluralism in
Africa that I encountered in the United States during the 1960s. Then I summarize some of
my relevant fieldwork experience in Tanzania that began in 1968 and continued
intermittently for many decades (see Moore 2005). By way of contrast, I then review the
two remarkable books of Wilson and James, mentioned above, on aspects of regime change
in South Africa. Because the postapartheid period in South Africa only began in 1994, and
the history of South Africa was in many respects different from that of other African
countries, the strategies adopted to alter the situation were different from those installed in
Tanzania. However, what both projects of societal transformation have in common are
grand goals and major impediments to their realization.
LEGAL PLURALISM IN ACADEMIC DISCOURSE IN THE 1960s
In the 1960s, there was an early emergence in anthropology of a theory of legal/cultural
pluralism (see Kuper & Smith 1969). The framework emerged in a faculty colloquium
sponsored by the African Studies Center at the University of California, Los Angeles
(UCLA), in 1966. At the time, there was great and optimistic excitement about the end of
colonial rule. The concerns of an Africanist social anthropology were with the future
constitutions of the emerging independent states and how these states would cope with their
ethnic diversity.
The dominant force in the meetings of the colloquium was an extraordinary member of the
UCLA Anthropology Department, M.G. Smith. A Jamaican by nationality, a poet, and an
ex-soldier (he had been in the Canadian Army D-Day landings), Smith was a Caribbeanist
and Africanist anthropologist by profession who had done extensive fieldwork in northern
Nigeria.
Smith proposed a way to compare the political structure of the wide range of societies that
anthropologists had addressed, from acephalous groups to empires. The existence and
nature of corporate groups formed the unit he designated as the key factor: how many, how
they were layered or nested, relations between them, etc. This was an extension and
adaptation of the framework of Max Weber. Smith was convinced that politically “effective
4
collective action,” to use the Comaroffs’ phrase, was principally possible through corporate
groups, or sometimes through other more loosely linked aggregations of persons (Comaroff
& Comaroff 2009, p. 36).
Smith’s definition of a corporate group was both formal and specific. It had five definitional
requirements (numbering mine): “[1] an enduring, presumably perpetual group…; [2]
having determinate boundaries and membership; [3] having an internal organization; [4] a
unitary set of external relations; [5] an exclusive body of common affairs, and autonomy
and procedures adequate to regulate them” (Smith 1974, p. 94). Smith’s ideal model was
useful even when used to examine exceptions, to show which of the requisite elements he
had specified was missing from particular organizational forms, and with what
consequences. Many identifiable collectivities do not meet all the definitional requirements
yet have considerable social effects. An example would be a cultural category that was not
formally organized.
He classified the types of constitutional systems existing in Africa, ranging from the worst--the South African apartheid regime, which used ethnic membership to turn its black
population into citizens of homeland chiefdoms, excluding them from citizenship in South
Africa proper---to other constitutions that incorporated African ethnic groups into the polity
on an equal basis (Smith 1969, p. 444). He discussed these and other types at length,
including the constitutions of some European countries (French, Dutch, Danish) that
incorporated all their citizens as individuals directly into the public domain, not through an
intermediate ethnic group.
Smith’s analytic emphasis on the projected political constitutions of the African states was a
splendid talking point for the participants in the lively faculty colloquium held at UCLA in
1966. Smith had, after all, just published a book on pluralism in the West Indies (Smith
1965). In Africa, would the distinct, organized ethnic groups persist? There were
innumerable urban locations with members of a multiplicity of ethnic groups in close
contact. What would they become? Even if there were formal constitutional integration of
different ethnic groups into a consociational whole on the basis of formal equality for all
5
groups, would the result be unstable? Smith (1969, p. 443) wrote, “As regards probable
courses of development, much depends on the number, distribution, and institutional or
ethnic identity of the segments, as well as their absolute and relative size, and common or
differing external contexts. Formal equivalence and substantive equivalence are not always
easily matched.” He saw many problems ahead.
The ideas about nationalism that Ernest Gellner published 40 years later were already
floating around: that national cultural integration was essential to modernity and that, within
a nation, cultural uniformity was the most developed form (Gellner 2005). National cultural
homogeneity was obviously not even a possibility for Africa, where there are many ethnic
groups, cultures, religions, and languages in each country. How would national integration
be managed there?
A number of advanced African graduate students participated in the colloquium and spoke
to this issue. As they expected, not only to return to their countries but also to occupy
important political positions there, the terms of national integration were not merely
academic questions for them. Their passionate involvement animated the colloquium. A
much-debated matter was whether cultural, racial, and religious diversity would mark the
dominant lines of political cleavage within each country or whether class differences would
be the most important element in the political future.
A few years after the colloquium (in 1968), I went to Tanzania to do fieldwork. Among
other research interests, I wanted to see how the cultural/legal pluralism issue was being
addressed by the new independent government.
MY FIELDWORK IN TANZANIA
In Tanzania I chose to work on Mount Kilimanjaro among the Chagga people. I studied
their so-called customary legal system, their local way of life, and their postcolonial
relations with the newly independent socialist government. As it turned out, the Chagga way
of life was far less disrupted by the government’s policies than was the case in many other
regions of Tanzania. Their circumstances, however, must not be understood to reflect the
6
situation in all Tanzania. The policies and the Chagga response are interesting nevertheless.
Some examples follow.
The Villagization Program
In the government’s villagization program, people living in dispersed settlements were
moved into concentrated communities. President Julius Nyerere saw the concentration of
population in villages as essential to raising the standard of living of Africans. It would
improve the provision of public services, water, schools, and electricity and would make
various kinds of cooperation possible (Nyerere 1966, p. 184).
The Chagga already lived in a densely populated rural area with one household garden next
to another. They were deemed to have villages already and were not moved. Additionally,
the boundaries of the official Chagga villages were in many cases set exactly where the
administrative units of the colonial period had been. (For more detail on this and other
issues see Moore 1986.)
The Nationalization of Land
A second socialist program was only slightly more consequential for the Chagga, namely
the nationalization of all land. What this meant ideologically was that nominally the land
“belonged to all the people” collectively (Nyerere 1966, pp. 52--62). There would be no
more private property in land. The government abolished all title to land and decreed that
land should be held only by the cultivator (but only as long as he used it). If one can sweep
aside the language that attended this change, one finds that for the Chagga, they may have
lost title but they retained possession. In short, in a practical sense little had changed. They
still lived on the plots they had inherited from their fathers, and they would leave them to
their sons. They could even sell the right to possession, though, given the land shortage and
the needs of kinsmen, few wanted to sell to outsiders. This was the early situation. (The
details of the land question were not fully resolved for many decades and continue to be
worked out through, for example, the Land Act of 1999 and the Village Land Act of 1999.)
The Abolition of Chiefship
Another move of the socialist government was to abolish chiefship. This served the
ideology of equality and served to end the colonial political organization founded on ethnic
7
groupings. The Chagga thus lost their ethnically based corporate status. However, the
abolition of chiefship did not sadden the Chagga. Many thought the chiefs had been unfairly
enriched by their positions, and they were not sorry to see them brought down. But past
rank was not forgotten. On meeting them, chiefs were sometimes addressed as “ex-chiefu.”
The Denunciation of Tribalism
When the socialist government came in, there was much campaigning against tribalism.
This policy was the very opposite of the colonial system of indirect rule in which the
colonial government exercised its authority indirectly through tribal organization, chiefs,
and councils of chiefs. This also meant that ideally political advantage and favors would not
be explicitly allocated according to ethnic membership.
Citizens were to belong to the nation directly, not through their ethnic affiliations, but
through local representation in the national party TANU (Tanzanian African National
Union). TANU membership was universal. But, of course, ethnicity and locality were
identical for the Chagga so that as long as political representation was geographically based,
the members of local segments of the party were all Chagga. However, officially, they were
only party members. Ethnicity simply did not exist as an official basis of organization. In
short, using Smith’s terms, unlike the colonial state, the socialist state did not turn localized
ethnic groups into corporate groups. It tried to make them disappear. It masked them under
geographically based units of the national party.
The Decimal System of Organization
Accordingly, the Tanzanian administration divided the countryside into official party units
that were multiples of 10, with neighborhood 10-household cells at the bottom and the
multiples of these constituting larger and larger administrative units. The numerical units
were treated as the only significant local political entities. This system of organization made
the realities of cultural difference seem to disappear from official political calculations.
Yet for the Chagga, the new reorganization into party segments was not particularly
troubling, as it did not replace the culture and lineage organization they already had. They
could continue to speak Kichagga at home and observe the customs and rules of their
8
lineage organization and local mores of various sorts. Thus, the 10-house cells could be
accommodated without disruption to the lineage organization. To be sure, the state did
meddle in this happy situation to some degree. No large meeting of any kind, including a
meeting of a kin group, could occur without official permission from the party, and if
permission were obtained, a party representative had to be present at the meeting. The
government was nervous about possible antistate activity.
Land Shortage, Population Increase, and the Basic Economy
For the Chagga, the most deeply disturbing circumstance with respect to the land, however,
was not the nationalization that they saw as nominal. What troubled them was the ongoing
land shortage. As the population increased, there was less land available locally. In 1900,
the German government thought there were approximately 100,000 Chagga. At midcentury,
there were probably at least 500,000. In the 1990s, according to the census, there were
700,000. The population today has continued to grow.
Each family grew subsistence crops in the small gardens around their up-mountain houses.
Bananas were the staple food, supplemented with vegetables. (They also planted secondary
plots of land in the flatlands at the foot of the mountain, where they grew maize and millet.)
Occasionally, a cow, a goat, or chickens also lived with them. This smallholder way of life
is ongoing but cannot accommodate the population increase.
The Chagga cash crop is coffee. At the altitude at which I lived, in the garden of each house,
tall banana plants shaded the coffee bushes beneath them. The Chagga sold their coffee
beans into the world market through a local cooperative that they controlled. Thus, they
were firmly involved in the global economy from the mid-1920s, when the Kilimanjaro
Native Cooperative Union came into being. The socialist government took over the
cooperative for a period, but later it was restored to its local organization.
The Courts
Local magistrate’s courts existed where, for some years, I listened to hearings and read
hundreds of records. Eventually, the local courts were downgraded; they were prohibited
from hearing litigation over land, and special tribunals of reconciliation were set up by the
9
government to handle land matters. However, much land law and inheritance and other
family and neighborhood matters were actually settled outside of formal legal institutions,
among kin and neighbors. Thus, the Chagga continued to lead a legal double life and to
value their autonomy. They used the formal system of courts when convenient, but
generally settled matters “at home.”
Out-Migration
No matter how governments or their requirements changed, they had to be obeyed. But for
the Chagga, the problem was not the imposed government decrees, but the inherently
changing economy. The increasing population put a great strain on land distribution. People
had too many children to be able to divide their land equitably among their adult offspring,
and there was no unclaimed land available. The answer was that the young left subsistence
farming and sought employment in the towns.
In town, the uneducated would become apprentices in bricklaying, tailoring, carpentry, or
other skilled crafts. The educated could get white-collar jobs. Over the years that I worked
on Kilimanjaro, many young people left their homes on the mountain to find employment in
the cities. They knew they would not inherit enough land and coffee bushes to support a
family. A census that I undertook of several hundred households showed that by the 1990s
approximately half the young people had left Kilimanjaro (Moore 1996). This out-migration
effected deeper changes on the local way of life than the socialist legislation.
The Chagga World and the State
On Kilimanjaro, government decrees simply exist alongside local mores; for example,
although the Chagga maintained Kichagga as their domestic family language and used it in
neighborhood conversation, they accepted that Swahili had been made the national language
as a matter of law. Swahili was used in all public institutions, schools, courts, and
administrative offices. The Chagga did not think of the maintenance of Kichagga as
evidence of tribalism. Nor did they think of their local beliefs and practices as forms of
resistance to government. Simply put, ordinary, ethnically specific ways of behaving could
exist parallel to and under the eyes of a new government.
10
For the Chagga, a double system regarding what was legitimate was an old attitude. This
pertained to religious as well as to political matters. The legitimacy of the church (Lutheran
or Catholic) did not replace a system of indigenous beliefs about supernatural goings-on
such as witchcraft or the influence of dead ancestors. This system of double attitudes had
existed during the colonial period and remained so after independence.
From the beginning of my stay on Kilimanjaro, it was evident to me that the Chagga
preserved as much autonomy over their own affairs as they could. When possible, they used
customary law in their local courts and turned to the same traditions outside the courts in
informal dispute resolution. Their own customs governed inheritance, marriage, the transfer
of bridewealth, the distribution of meat at (male) lineage feasts, the question of authority
inside their patrilineages, the place of women, and the like. They knew the lineage
affiliation and land boundaries of everyone in their neighborhoods. The party 10-house cells
and similar government reforms were simply overlaid on an existing social system. There
was no reason why they could not coexist. The Chagga conformed to government
requirements as they had to, but at the same time their own customary social system held
sway in many aspects of individual and group lives.
These observations led me to devise a term for the relation of the Chagga world to the
socialist state. In the absence of corporateness, the Chagga subsociety was, in my terms, “a
semiautonomous social field.” The Chagga, under the colonial government with their chiefs
and councils, had once been a corporate group. However, under the socialist government
their collective corporateness was removed. They became no more than an ethnic social
field in a particular geographical region (Moore 1973). The idea of such partially selfregulating social fields emphasizes an obvious corollary proposition: In many societies,
direct control by the state of the semiautonomous social fields within its purview is
necessarily incomplete and uneven.
On this note, I leave my brief account of the Chagga to move on to the two modern
ethnographies already mentioned. Both describe attempts to engineer change in
postapartheid South Africa through legal measures. They epitomize both the capacities of
11
the state to control many matters through legal interventions and its remarkable incapacities
as well. It would be an understatement to assert that the strategies, struggles, and
negotiations that take place (a) among various semiautonomous social fields and (b)
between those social fields and the state are often the stuff of anthropological study today.
RICHARD A. WILSON’S ETHNOGRAPHY OF THE TRUTH AND RECONCILIATION
COMMISSION
One of the more remarkable instances of the complex incompleteness of grand-scale
political projects is the history, operations, and effect of the TRC in South Africa. It is
brilliantly described and analyzed by Richard A. Wilson (2001). His ethnographic study of
action looks both inside the TRC and outside (in townships of the Vaal region), where he
assessed the impact (or lack of it) of the TRC on local justice systems.
The TRC was set up by the Promotion of National Unity and Reconciliation Act, No. 34 of
1995, authorized by President Nelson Mandela. Archbishop Desmond Tutu was appointed
its chairman. The commission was to address the history of the apartheid years from 1960 to
1994, the suffering of its victims, and the culpability of its political tormentors. At its first
meeting, Tutu set the tone in his opening speech. He said, “We are meant to be part of the
process of healing of our nation…. We are a wounded people” (quoted in Wilson 2001, p.
14). The commission lasted from 1995--2001.
Wilson observed the TRC in action over a four-year period. He took full account of the talk
of the commission, the moralizing tone, and the rhetoric of forgiveness, healing, and
reconciliation that it repeatedly put forth to explain its policies and presumably to affect the
thinking of its audience. Wilson interpreted this language as part of a narrative of nation
building. As he saw it, the commission was more intent on producing such a narrative rather
than on collecting a detailed historical record of the abuses of the years it reviewed.
Wilson makes it clear that he would have preferred the TRC to collect a detailed historical
record of the apartheid years through the pained voices of its victims. In offering that
opinion, which he does several times in his book, Wilson makes it evident that he will not
12
play the role of an impartial observer and that the thrust of his work will be as a person
preoccupied with human rights, with social theory, and with method. His perspective is
plain: “[C]ontrary to the myth of legal neutrality, the law is always a form of politics by
other means” (Wilson 2001, p. 5).
Formally, the work of the TRC was divided among three committees: the Human Rights
Violations Committee (HRVC), the Reparations and Rehabilitation Committee (RVC), and
the Amnesty Committee. The HRVC heard evidence of human rights abuses that occurred
between 1960 and 1994. It was not a court of law, it was not set up to prosecute abusers,
and it did not have funds with which to compensate victims, although it was able to
recommend to the government that they be paid. Officially, the RVC was supposed to work
to restore the dignity of victims and to formulate proposals to assist with rehabilitation.
The HRVC held hearings across South Africa. They were open to victims who could
complain of past abuses. More than 21,000 such statements were collected over the years,
and attempts were made to corroborate the testimony (Wilson 2001, p. 21). At the outset,
the statements of victims were made in narrative form, running as long as 15 pages each.
The victims told the hideous details---a husband killed, a son tortured---and they related
connected stories about who was affected besides themselves. Over time these lengthy
accounts were considered unmanageable, and a series of questionnaires was substituted. The
brief answers, however, drained the accounts of their narrative content, individual history,
and social context. “For purposes of the information management system, information did
not exist unless it conformed to the controlled vocabulary and coding frame” (p. 47).
Despite its mandate, and because of its method of gathering information, in its final Report
the TRC could not put together “any overarching and unified historical narrative” of the
years from 1960 to 1994” (TRC 1998). This failure was acknowledged by the research unit
director in 1999 (Wilson 2001, p. 51). The most that the HRVC could do was pass along to
the TRC verified statements by victims with recommendations with regard to compensation.
These recommendations were not generally followed as sent, although token sums were
eventually allocated.
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The Amnesty Committee was empowered to grant amnesty to those who had committed
abuses of a political nature. Amnesty could be requested if the abuser made a full disclosure
of what he or she had done. The TRC received more than 7,000 applications from people
who had committed political crimes and were guilty of violent physical abuse. They wanted
to be guaranteed that if they told the truth, they would not be prosecuted. In fact, the
committee granted amnesty to 568 persons (Wilson 2001, pp. 21--23).
Wilson has strong opinions about these matters. He writes that “[t]he rule of law cannot
meaningfully be said to exist if it is predicated upon impunity for gross human rights
violations committed in the authoritarian past” (Wilson 2001, p. 26). There were some
unintended consequences of the reliance on human rights talk for nation building and state
centralization. “Due to amnesty laws and a lack of prosecution of human rights offenders,
the high expectations expressed in human rights talk by both politicians and citizens were
left unfulfilled, as transitional institutions seemed to protect perpetrators more than they
fulfilled victims’ hopes for justice and reparation” (p. xvii).
Wilson (2001, p. 19) explains that the commission had “a number of ambiguous and liminal
characteristics which made it neither a legal, political, nor a religious institution.” But, of
course, it drew on the language and metaphors of all three domains. In his fieldwork,
Wilson looked at the actions of the TRC by listening to hearings, interviewing members of
the commission and staff, reading reports, and the like.
But he did more. He also did a parallel study. He went into the area south of Johannesburg
to the Vaal township of Boipatong to assess the impact of the reconciliation theme of the
TRC on the African townships of the Vaal region. Boipatong is an industrial area that has a
population of approximately 40,000, with speakers of at least five languages. Sesotho is
dominant, but there is a township creole in which people of different ethnic origins can
communicate (Wilson 2001, p. 199). In Boipatong, the central conception of justice was not
one of reconciliation but of vengeance and punishment. For example, in Boipatong justice
was meted out by a community tribunal of 30 or 40 men. The tribunal was a bridging
institution between the police and the local government. “Every day at 4--5 pm disputes are
14
brought before the 30--40 men of the imbizo.… The court hears many domestic violence
cases, cases of petty theft, assault, unpaid debts, but not murders” (p. 204). The imbizo was
formed in 1994 after a public meeting called by the local civic association (p. 201).
Although it was a community institution, “the Boipatong imbizo was simultaneously
working with the Vanderbijlpark police” (p. 220).
Those found guilty by the imbizo were subject to one of two forms of justice: restorative or
retributive. In the restorative mode, the guilty parties must pledge either to improve social
relations or to pay compensation with money or free labor. In the retributive mode, the
guilty party was subject to a public beating in the football stadium. “Punishment is a bloody
and violent public spectacle attended by victims” (Wilson 2001, p. 205). A car stands by to
take the beaten person to the hospital. “Imbizo [the community tribunal] men take turns
carrying out the beatings, with each administering only a few of the lashes, so that it cannot
be said that one man is responsible, or that he was just doing it to settle a personal score” (p.
207). The details of the punitive beatings seem as commonplace as they are shocking (pp.
204--5). The TRC’s religious redemptive language about reconciliation seems not to have
changed the attitude and practice of meting out community justice in the Vaal townships.
One of the interesting theoretical analyses Wilson (2001) proposes from this fieldwork
material is a revision of the concept of legal pluralism. He speaks of it as having had several
versions in the history of legal anthropology (pp. 219--20). In his Pluralism I, he says that
early ethnographies considered state law and local customary law to coexist as separate
systems. (He says this view ignored the extent to which colonial law affected and modified
customary systems).
According to Wilson, Pluralism II emerged in the 1970s. He thinks of this period as one in
which state law and local law were seen as having a “dialectical relationship,” a struggle in
which local law was resistant to state law. He proposes revision III as much more broadly
processual, involving many currents of activity and versions of events. He sees complex
multiple processes at work. “Instead of the stark polarity of dominance and resistance which
reduces the complexities of a historically produced political-legal context, we must turn our
15
attention to shifting patterns of dominance, resistance and acquiescence, which occur
simultaneously” (Wilson 2001, p. 220). Speaking of human rights talk, he writes, “The
social processes described work in different directions simultaneously, both reinforcing and
obstructing the introduction of human rights values into a context of semiautonomous legal
and moral fields” (p. 222). He concludes that “[j]ust as civil society implies too much
common purpose among nonstate actors toward state versions of human rights, neither is
the state itself unified and coherent in its policies” (p. 221). This is a much more subtle and
complex and processual assessment of the situational realities than one finds in many earlier
anthropological works.
As I discuss below, the legislative attempts at land reform in South Africa described by
James (2007) clearly show that the enormous variation in individual and local histories did
not fit well with the prescriptions of reform legislation, which was itself not entirely
consistent. Multiple processes were at work.
DEBORAH JAMES’S ETHNOGRAPHY OF THE PROCESS OF LAND REFORM IN
SOUTH AFRICA
One of the most remarkable recent descriptions of important South African legislation and
the complex reactions to it is that of Deborah James. Her Gaining Ground? (James 2007) is
about the efforts of the postapartheid South African government to undertake an ambitious
program of land tenure revision from 1994 on. Fundamentally, it was an effort to reverse the
injustices done to the African population in depriving them of land, citizenship, and dignity.
From 1958 on, the apartheid government had tried to segregate the black population from
the white. It required black Africans to become citizens of so-called Bantustans, areas
designated as ethnic homelands, where Africans lived under government-designated chiefs.
Many persons were forcibly relocated into these areas by the truckload. They could own
land in the homelands but not in South Africa itself. However, in South Africa, they could
work as migrant laborers on white-owned farms or in the cities. As homeland citizens, they
were technically foreigners in South Africa. They were subject to many restrictive laws, to
demeaning situations, and sometimes to persecution.
16
The bold postapartheid plan was to reverse all this. The hope was to redistribute 30%
percent of the country’s farmland across the racial frontier from white to black in an orderly
and organized fashion, through programs of restitution, redistribution, and tenure reform
(James 2007, p. 7). The aim of restitution was to return land to Africans who had once had
title and lost their property during the apartheid era (p. 32). The idea of redistribution was to
provide government subsidies to “enable people such as tenants and farm workers to pool
their government grants and buy farms” (p. 33). Tenure reform “aimed to safeguard the
rights of residents of white farms and state land in the former homelands. It was designed to
protect poor people from summary eviction by securing their existing rights or by buying
alternative land on which they could live” (p. 33).
These categories did not adequately capture the huge variation in African experience with
land that had developed over the years. It also did not take into account that the survival
strategy of many Africans under apartheid was to combine many ways of earning a living,
such as residing and working in the towns some of the time, living in the homelands some
of the time, and working for white farmers some of the time. “Many Africans…rely on
multiple livelihood strategies” (James 2007, p. 95). “Migrant wages earned by tenants
were…invested in other forms of wealth. Foremost among these were cattle…. Land for
grazing was one of the perks of tenancy” (p. 139). “Cattle…served as stores of wealth” (p.
140). “Labor tenants viewed restitution rather than any other aspect of land reform---as their
entitlement” (p. 147). James reviewed many land claims and interviewed many claimants.
Her study gives a picture of the wide range of personal histories that formed the background
of claims.
James (2007) notes that class boundaries were manifested for years in the actions and
debates that followed. To explain the situation more simply, there were at least three
specific categories of persons making claims: The first included those Africans who had
once held title to property and wanted it restored. They were among the political elite. The
second category included people who had never had title and whose access to land had been
as tenants or laborers but who also considered themselves to have rights to land. And the
17
third category were the squatters. Of course, because of the history of South Africa, tribal
identity, class, and religious affiliations were not far from the surface as these questions
were sorted out.
The general intention of the government was to accomplish a transfer of land without
confiscating white properties. The strategy adopted was to supply black Africans with loans
and other assistance to enable them to buy land from whites and, when this was not feasible,
to help them to settle on government-owned land. The government wanted to avoid violence
by setting up the means of recognizing legitimate claims.
The forcible land seizures by Africans from white farmers in Zimbabwe were frightening to
white farmers in South Africa, as were certain parallel farm attacks in South Africa itself
(James 2007, p. 20). Also unsettling was the rise of the Landless People’s Movement, an
organization with international connections that sometimes had speakers who advocated
seizures (p. 15). The counteractive vigilantism practiced by some white farmers against
African farm dwellers made the urgency of land reform even greater (pp. 18--21).
James explains the way in which different Africans, both individuals and groups, conceived
of land reform. “What was at stake in the public imagination was nothing less than the
complete redrawing of the map of South Africa” (James 2007, p. 1). Much of her book is an
explication of the reasons these exaggerated expectations could not be realized. The
goodwill and efforts of innumerable persons, government officials, the “human rights law
fraternity,” NGOs [many of which were foreign funded (James 2007, p. 35)], and outside
experts could not overcome the obstacles. The World Bank was influential and also entered
the picture (p. 157). A series of well-intentioned pieces of legislation were put in place, but
their implementation proved to be more difficult than expected (p. 4).
What James does with great skill is to oscillate among the large-scale, the national, and
local politics of land reform; the role of groups of activists; and the experience of particular
Africans as they pursued their claims. She also follows events over time so the reader sees
the sequence of policy developments and the fate of individuals. It is a complex scene.
18
For a sense of these events on a larger scale, one can compare two periods of land reform:
1994–1999 and post-1999. During the first period (1994--1999), the Department of Land
Affairs (DLA) was headed by a white Afrikaner, Derek Hanekom, who was a member of
the African National Congress (ANC) and was appointed by Mandela. As minister, he
steered the orientation of the upper echelons of the DLA toward establishing not only the
rights of those who had once held title to confiscated land but also the rights of squatters
and holders of informal rights who had never held title.
After the second democratic election of 1999, the previous minister, Hanekom, was
replaced by Thoko Didiza, an African woman and an Mbeki appointee. Many of the
previous high-level staff at the DLA left and went back to the NGOs from which they had
come. They then took up the rights cause they had embraced in the DLA to challenge the
state from the outside and hold it to its legislated obligations. The lower-level staff held
over from the apartheid period remained at the DLA, but overall “the net result was a more
solidly African staff quota at various levels within the Department” (James 2007, p. 228).
Didiza herself was a member of the African elite, and she “sympathized less with informal
rights holders than with elites who, like her family, had long been title holders” (p. 39). Her
orientation was in favor of commercial farming. The new focus was on private property.
In addition to these divisions within the DLA, James (2007) describes a division between
those in the central administration and those in the rural areas that she observed in
Mpumalanga, her fieldwork site. At the national level, the ANC favored private ownership,
but at the local level the ANC presented itself as “the defender of the destitute against
property interests” (p. 124). James explains this position as part of the ANC’s need to
mobilize voters. Ethnic allegiances also played a part in their vote-assembling strategy. The
Ndebele were a majority in Mpumalanga, but there were also Zulu, Swazi, and Pedi
citizens. James (2007, p. 126) writes of “the continued, and revitalized significance of
ethnic mobilization in South Africa.” What is evident is James’s skill in presenting the
multiple dimensions of policy interpretation without losing the basic theme of land reform.
19
The plan was to carry out the transfers of land in a well-organized, peaceful process. There
would be no appropriations of the land of whites in the eminent domain mode. Rather, a
market mechanism would be invoked. The reformers imagined that, with government
financial assistance to ease the way, willing sellers would offer their land to willing buyers
who would pool their assets. The transactions would take place with the mediation of state
officials, and the state would help to fund the buyers through a program that would make
grants of R16,000 per household. However, doubts arose about collectivities formed in a
hurry by miscellaneous groups of persons who wanted to pool their grants, creating a “rent a
crowd” phenomenon (James 2007, p. 164). Such persons did not necessarily have any
connection with each other, and there was no guarantee that they could together muster the
skills and organization necessary for successful farming.
The shift to an emphasis on agricultural development eventually led to changes in the
bureaucracy (James 2007, p. 186 et seq.). A subdivision of the land program was called
Land Reform for Agricultural Development (LRAD). This program consisted of a sliding
scale of grants and loans to farmers. It could give more money than the original allocation
but on different terms. It required that “grantees make an ‘own contribution’ in cash, labor
or kind” (p. 178). The loans were to be administered by the Land Bank. Unlike the first kind
of grant, which was oriented toward redistribution to the poor, these LRAD grants were
clearly biased toward people with assets of some kind. The intention was to encourage
commercial farming.
There were several means of doing this. Groups of persons could still pool their government
grants to form a land project. A 1996 law provided for Communal Property Associations
(CPA) and required a particular system of governance (James 2007, p. 156). A CPA is
governed by an elected committee. However, much uncertainty existed about the property
rights of individuals (p. 163). Sometimes these would be guided by private consultants. In
other instances, partnerships could be established “between restitution claimants and the
white farmers who currently own the land” (p. 243). Project officers were keen to make the
agricultural enterprises profitable and were often unsure that the group of claimants had
either the skills or the capital to realize an economically successful outcome. A recent
20
instance of the interminable difficulties involving competing group claims is well described
by Nustad (2011) .
There were examples that followed the optimistic intentions of the legislators, but most did
not. One did not have to seek far for the reasons. James (2007) gives a detailed account of
what happened in parts of two provinces, Mpumalanga and Limpopo. Apart from many
other issues, there were serious difficulties with the Land Claims Court. It could not handle
the volume of claims. In Mpumalanga alone, there were 6,473 claims, of which only 635
had been settled by March 2003 (p. 59).
There is no better example of the issues involved than the case of the farm called Doornkop.
Around 1910, a group of 284 Sotho-speaking Lutherans had pooled their funds and bought
Doornkop from a white farmer. In this move they were seeking independence both from a
Pedi chief and from missionary control. Their constitutional plan was to hold the land on a
communal basis and to leave it to their descendants in perpetuity. Some individuals
prospered, left the farm, and resided in urban areas. These absentee landlords then rented
their land to rent-paying tenants. A third category of persons who eventually lived at
Doornkop were landless Ndebele squatters, who appeared around 2000, built shacks, and
cultivated the land. Their attitude toward buying land was that even with government grants,
they saw no reason to buy what they considered theirs by right. Thus, all three categories of
persons, the original owners and their descendants, their former tenants, and the latecomers,
the Ndebele squatters, thought they had a right to the same land.
In 1974, the apartheid regime had designated the Doornkop farm as a “black spot” because
it was situated among white-owned farms. The army and police removed the owners and
their tenants. The Pedi owners were resettled in a homeland, and later most of their Ndebele
rent-paying tenants were sent to KwaNdebele and other homelands. The land was
subsequently not lived on but used by the police “as a range for target practice and an
entertainment venue” (James 2007, p. 53). In 1994, with much celebration, title to the land
was handed over to the descendants of the original owners. However, even at the beginning
21
the question remained what would become of their old tenants, and later, what would
happen to the newly resident squatters.
The Pedi descendants, the tribe of the original owners, had all the qualifications for land
restitution under the land reform program. However, they rejected their former tenants and
rejected the wave of squatters, mostly Ndebele, who, from around 2000, chose Doornkop as
a place to stay. As James (2007, p. 121) writes, “[I]n disputes about who had the greatest
entitlement to live on the farm---its absentee owners or the squatters with their immediate
material needs---ideas of morality were expressed in a discourse of custom and culture.”
Between 1994 and 2001, “very few of those entitled to do so returned to live on the farm”
(James 2007, p. 67). There was a split within the group of owners entitled to restitution.
There were a traditional group that wanted Doornkop to be settled as a small-scale farming
community and a modernizing group that wanted the government to provide water,
sanitation, schools, and other modern amenities (p. 71). The fight between these two groups
was so bitter that many who might have returned did not. Much of the rhetoric that these
people engaged in referred to the Bible. Their arguments about claims and rights were put in
religious terms, but this did not prevent passionate disputes. By night, the traditionalists
even removed the pegs with which government officials had tried to mark out new planned
plots for a modernizing return.
As for the Doornkop tenants, the government had a plan to purchase another redistribution
farm for them. It was to be organized as a trust that could collect rent from the beneficiaries,
as well as payments from the cattle-keeping persons who grazed their animals there. The
design of this arrangement was predicated on the assumption that poor people would behave
“as investors and rent-payers” (James 2007, p. 174). The consultants hired by the
Department of Agriculture designed a complex system of communal landholding that was
“virtually incomprehensible to their intended recipients” (p. 170).
James describes in detail how and why these programs have not turned out well. I cannot do
justice to her story in so brief a summary, but what is clear is that the fundamental
22
inequalities between poor and middle class are being played out in varying forms in their
relationship to property. The official program of land reform has gradually moved toward a
market-driven approach. However, James tells us that unfortunately the market has revealed
that “it had become difficult if not impossible for any farmers, black or white, to make a
living from the land alone, at a time when South African agriculture has the lowest level of
state protection of any country in the world” (James 2007, p. 180). That is a sad and
pessimistic conclusion considering the substantial effort to make the land reform program
successful.
CONCLUSIONS
Some of the theoretical themes that occupied anthropologists in the 1960s are clearly still
germane to public affairs in Africa. It was a useful advance to raise and debate the potential
relationship between African legal/cultural pluralism and African constitutionalism. Ethnic
group membership as well as race and religion, to say nothing of class, have long figured as
significant elements in the organization of African society. The question is whether (and
where and when) politically effective corporate groups emerged that were founded on one
or another of these criteria, and how much state intervention (colonial and postcolonial) had
to do with this. It is evident that much of the power of ethnic identity continues today in the
postcolony, often in noncorporate forms.
It is an exaggeration of the force of intention to expect that revisionary legislation can
quickly and directly erase these deep social realities in a planned direction, but some
changes are certainly possible. The political meaning of the elements of cultural
commonality has been altered over time and varies in different places. An ethnic group such
as the Chagga localized on rural Kilimanjaro reacts differently from the urban dwellers in
Boipatong described by Wilson. In their 2009 essay, the Comaroffs described areas of South
Africa where the ethnic self is now invoked as a legal right to identity and customary
practice. In the works of Wilson (2001) and James (2007), other aspects of ethnicity in
South Africa appear most significantly as elements of major social fields affecting the
dealings of Africans with each other. What emerges is that African populations do not
passively adapt to legislation but have agendas of their own.
23
The three examples of social redesign briefly summarized here---the initial TANU-driven
institution of socialism, the TRC, and the Land Reform in South Africa---all emphasize the
difficulties attendant on putting grand programs into effect. That they only partially
complete their mission is evident. This is so despite the efforts of many capable persons to
achieve more. Each case makes plain that control by the state is a partial affair only and that
it is deeply affected by the semiautonomous social fields that exist within the state and their
internal and external goings-on. The details vary considerably in each instance. In that
regard, the Wilson and James books emphasize that the local history of groups and
individuals strongly shapes the way any supposedly standardized laws are carried out.
What this implies for legal research, sociological or anthropological, is that with regard to
large-scale state projects, given that government control will be incomplete, the diversions,
transformations, and circumventions of policy surely deserve as much concentrated study as
the plans. An investigation of particular legal interventions and their surrounding conditions
clarifies the interlocking issues and may make evident some consequent outcomes. Like a
compass, starting one’s research with the law may provide a direction through the thicket of
events in the social field. Any such investigation is bound to uncover multiple causes,
multiple situational surroundings, and multiple effects. To expose the details of the
surrounding circumstances that shape the result is a singular contribution. The only way
such a complex processual analysis can be produced is to carefully follow developments
over time. The fine achievements of the Wilson and James monographs are inspiring
examples.
DISCLOSURE STATEMENT
The author is not aware of any affiliations, memberships, funding, or financial holdings that
might be perceived as affecting the objectivity of this review.
24
LITERATURE CITED
Comaroff J, Comaroff J. 2009. Reflections on the anthropology of law, governance and
sovereignty. In Rules of Law and Laws of Ruling, ed. F von Benda-Beckmann, K von BendaBeckmann, J Eckert, pp. 31--59. Surrey, England: Ashgate
Gellner E. 2005. Nations and Nationalism. Malden, MA: Blackwell
James D. 2007. Gaining Ground? ‘Rights’ and ‘Property’ in South African Land Reform.
Oxford/New York: Routledge-Cavendish
Kuper L, Smith MG, eds. 1969. Pluralism in Africa. Berkeley/Los Angeles: Univ. Calif. Press
Moore SF. 1973. Law and social change: the semi-autonomous social field as an appropriate
subject of study. Law Soc. Rev. 7(4):719--46
Moore SF. 1986. Social Facts and Fabrications: “Customary Law” on Kilimanjaro 1880--1980.
Cambridge, UK: Cambridge Univ. Press
Moore SF. 1996. Post-socialist micropolitics: Kilimanjaro 1993. Africa 6(4):587--605
Moore SF. 2005. Part of the story: a memoir. Ethnos: J. Anthropol. 70(4):538--66
Nustad KG. 2011. Property, rights and community in a South African land-claim case.
Anthropol. Today 27(1):20--24
Nyerere J. 1966. Freedom and Unity. Dar es Salaam: Oxford Univ. Press
Smith MG. 1965. The Plural Society in the British West Indies. Berkeley: Univ. Calif. Press
Smith MG. 1969. Some developments in the analytic frameworks of pluralism. See Kuper &
Smith 1969, pp. 415--58
Smith MG. 1974. Corporations and Society. London: Duckworth
TRC. 1998. Report, Vols. 1--5. Cape Town: Juta. http://www.struth.org.za
Wilson RA. 2001. The Politics of Truth and Reconciliation in South Africa: Legitimizing the
Post-Apartheid State. Cambridge, UK: Cambridge Univ. Press
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