- Introduction
Before the dominance of the Charterist tradition, as represented by the African National Congress (ANC) as a civil rights movement, 21 March 1960 was celebrated as the day of the Sharpeville Massacre. This massacre of Africans by the Apartheid regime was the most violent expression of settler colonialism in “South Africa”[1]. The uprising, leading to the Sharpeville Massacre, was inspired by the Azanian political tradition under Robert Sobukwe and his comrades in the Africanist Movement. According to the Azanian political tradition, the fundamental problem is “South Africa” itself is based on the dispossession of African land since 1652.
However, contrary to the Azanian political tradition, the ANC’s “civilised natives”, hereafter referred to as amazemtiti, were informed by the epistemological paradigm of the European settlers. This epistemological paradigm informed the ANC’s activism against the exclusion of Africans from “South Africa” since 1910. The ANC accepted the legitimacy of “South Africa” as established by the European settlers in terms of white supremacy. Therefore, the ANC’s objective to this day is not to dissolve “South Africa” as an artificially established racist state, but to become recognised citizens (“black South Africans”) of this white settler state and be granted human rights.
This essay uses the re-christening of 21 March 1960 as human rights day by the ANC as an exmpale to trace the origin of the obsession with the human rights discourse. More specifically it focuses on how the ANC’s “civilized natives” were seduced by the Eurocentric idea of human rights and humanism. This demonstrates the connection between the “civilising mission” of the European settlers and the embrace of the ideology of human rights by the amazemtiti in the ANC. This essay provides a brief account of the history behind the ANC’s eager embrace of the ideology of human rights and the misappropriation of 21 March 1960 as an event which was characterized by the violation of human rights as opposed to the Azanian quest to restore African land and sovereignty.
- Racism, religion and land dipossessison
The violent conquest of Africans in “South Africa” since 1652 in wars of colonization entailed land dispossession and epistemicide (Ramose 2018). While the concept of epistemicide is complex, in this essay it implies the attempt to distort and destroy the knowledge and culture of a particular people. Additionally, it also implies the imposition of a foreign European legal system on Indigenous people. Epistemicide in “South Africa” manifested itself through the imposition of the European conceptualisation of human rights and Roman-Dutch law.
Roman-Dutch law as a foreign Eurocetric jurisprudence was used as a mechanism by European settlers to dispossess African land. Therefore, Roman-Dutch law and British common law came to undermine and replace African law. It is important to understand the fundamental relationship between white settler colonialism and the imposition of Roman-Dutch law and British common law. As Robert A Williams (1992:13) argues the conquest of Indigenous people was formulated into a legal discourse. European settlers used the law on the “journey of discovery” to conquer non-Christian nations and disposses their land.
Not only was land dispossession linked to race but the imposition of a foreign Eurocentric jurisprudence is also linked to religion. Several popes issued papal bulls to bless the invasion and dispossession of the lands of “enemies of Christ”, meaning non-Christian Indigenous peoples. For example, Pope Nicholas the V issued Romanus Pontifex in 1455. This papal bull blessed Portugal’s enslavement of Africans along the West African coast (European University Institute 2024). It is in this sense that Western legal philosophy of conquest traces its origin to Christianity.
The dismissal of the law and culture of Indigenous people is central to this formulation of the Western legal philosophy of conquest. The violent land dispossession was based on the racist doubt of Indigenous peoples’ humanity. In turn, this led to the idea that indigenous land was “empty land”, meaning that it belonged to no-one. Lastly, it was followed by the imposition of foreign Western jurisprudence at the expense of African law and culture.This violent process of dismissing the Indigenous people’s idea of being human and replacing it with the European idea was euphemistically called the civiling mission by white settlers.
- White settlers and their civilizing mission
In “pre-conquest” Azanian there was an inextricable link between the supremacy of indigenous law and the land. Mazisi Kunene (2017:211) argues that the law of the nation reigned supreme prior to European conquest in 1652. Land appropriation and land division of the Indigenous people were motivated by the doctrine of discovery (Miller 2011). The doctrine of discovery is a principle of international law which was used by Christian European nations to invade and dispossess the land of Indigenous people. The ‘jus publicum Europaeum’ (Schmitt 2006: 49) reinforces Kunene’s (2017:211) argument that Indigenous people’s culture and law were not considered when land was divided and European law imposed.
Indigenous people were subsequently categorised as “savages” without the law worthy of respect by the European settlers. Indigenous law was recognised provided it complied with the European jurisprudence and justice in terms of the “repugnancy principle”.[2] This principle was used to distort indigenous law by codifying it (for example the Natal Code of the 1891) and reducing it to “customary law”.[3] Roman-Dutch law and British common law as “civilised laws” were accorded a higher status, despite the idea of legal pluralism. To this day customary law is still regarded as inferior in the South African legal system.
This is the reason why amazemtiti wanted to be exempted from customary law which was considered as inferior. Amazemtiti wanted to be ruled as natives under the superior law of European settlers. The “civilised” black lawyers were not interested in developing indigenous law but wanted to localise the Eurocentric law of white settlers. The ANC’s Bill of Rights of 1923 and several other constitutions are a good case in point. This is how we can trace the origin of the rights discourse which was embraced by amarespectables (Madlingozi 2018) as anti-African amazemtiti.
Cecil Rhodes who is the embodiment of European settler colonialism once stated that there should be “equal rights for all civilised men” (Magubane 2001). This delusion of the “civilising mission” was in line with the emergence of European settler constitutionalism which was inaugurated with the 1853 constitution in the Cape colony. This 1853 Cape Constitution was premised on a non-racial franchise which implied that only certain members of the Indigenous people could be allowed to vote. Property ownership and wetern education were some of the criteria for this liberal suffragist sentiment of the “friends of the natives” (Maloka 2014). Constitutional rights were extended to the “civilized natives” on the land dispossessed by white settlers since 1652. This is how the European idea of rights was accompanied by land dispossession.
Due to their Western miseducation the amazemtiti failed to understand that European settlers did not regard African people as human. Central to the doubt of their humanity is the exclusion of the Indigenous people from Aristotle’s definition of “man as a rational man”. This is how we can trace the activism of the amazemtiti as the exempted natives who embraced the law of the white settlers but were excluded from the Western category of the human. This is how Makau Mutua (2001) states it “The fifth flaw concerns the role of race in the development of the human rights narrative. The SVS metaphor of human rights carries racial connotations in which the international hierarchy of race and colour is entrenched and revitalised. The metaphor is in fact necessary for the continuation of the global racial hierarchy. In the human rights narrative, savages and victims are generally non-white and non-Western, while the saviours are white”. This is further supported by Frank Wilderson (2020) who argues that being white and human are synonymous, while being black is an ontological equivalent of the non-human or the slave. It is in this sense, that we can account for the inextricable relation between racism and the ideology of human rights.
- The Azanian mission
The amazemtiti who were some of the founders of the ANC embraced European law, and resented being excluded from its categories of being human, civil society, and the modern state.This accounts for the emergence of the “New Africans” (Masilela 2013) who wanted to assimilate into European modernity and subjectivity. The desire to be regarded as human and deserving of equal rights as the European settlers, was informed by the racist Western humanism and the fiction of universal brotherhood central to Christian indoctrination – as was preached by white missionaries. This is how we can account for the affective economy[4] of the amazemtiti in the context of European settler jurisprudence.
The amazemtiti’s psychological attachment to the European settler’s law reached its highest point during the period of the apartheid regime. The intensification of protests by the ANC which led to the declaration of apartheid as a crime against humanity, was in line with international human rights discourse and “the democratisation paradigm” (Ramose 2005). The naïve obsession with liberal democracy since the emergence of Cape liberalism by the members of the ANC accounts for the birth of the democratisation paradigm. In terms of this paradigm, the fundamental problem is the exclusion of Africans from “South Africa” and democratic rights. Thus the activism to attain democratic rights by the ANC in the form of the ‘one man one vote’ slogan of Nelson Mandela and his comrades.
The ANC’s rights discourse-based non-racial activism was captured by A. P. Mda through the idea of broad nationalism. This non-racial nationalism was informed by Christian humanism of European settlers. It is this Eurocentric humanism which “overrepresented Western man as the human” (Wynter 1999) and seduced the amazemtiti of the ANC such as John Dube and Sol Plaatje into believing that they are not like the “raw kaffirs”. It was these same “raw kaffirs” who died on 21 March 1960 while attempting to restore izwe lethu, meaning the reconquering of their land from European settlers.
Contrastingly, the Azanian political tradition’s fundmanetal quest of national liberation is not to be incorporated into a foundationally white “South Africa”. Instead the Azanian quest is to dissolve the fundamentally racist “South Africa”. This dissolution should be followed by the restoration of a New Africa or Azania on the basis of “Africa for the Africans” as imagined by Anton Lembede.By manifesting its amakholwa heritage, the ANC rechristened 21 March as human rights day thus “silencing the history” of the decolonisation paradigm of the Azanian political tradition of Sobukwe and the Africanist Movement, which pursued land restoration as opposed to the attainment of rights and recognition as human like white settlers in a conquered Azania.
- Conclusion
The revisionist reinterpretation of the Sharpeville Massacre on 21 March as Human Rights Day encapsulates the ANC’s adoption of a Eurocentric human rights ideology and humanism. The historical imposition of Roman-Dutch law, British common law and the doctrine of discovery facilitated the dispossession of African land and the erasure of indigenous cultures and legal systems. This foreign European jurisprudence imposed a racist framework that privileged European conceptions of law, humanity, and civilization, thereby framing Indigenous people as “savages” lacking legitimate culture and law.
Embracing these foreign and racist ideals, the ANC leaders, or amazemtiti, sought recognition and inclusion within this Eurocentric legal framework, rather than striving for the dismantling of “South Africa”. By pursuing the rights-based discourse introduced by the white colonial settlers, the ANC leaders distanced themselves from the decoloninization quest championed by the Azanian political tradition, which demanded the dissolution of “South Africa” and the restoration of African land and sovereignty. Thus, the reactionary transformation of 21 March into a celebration of human rights underscores the ANC’s ideological adoption of Eurocentric ideas and philosophies of the European conquerors.
- Bibliography
Department of Justice and Constitutional Development. N.d. African Charter on Human and Peoples’ Rights – Chapter 2. Available at: https://www.justice.gov.za/policy/african%20charter/afr-charter02.html#:~:text=Customary%20law%20is%20generally%20unwritten,law%20also%20consisted%20of%20customs. Accessed: 24 October 2024.
European University Institute. 2024. Nicholas V and the bull Romanus Pontifex: A New Interpretation. Available at: https://www.eui.eu/events?id=563680#:~:text=In%20his%201455%20bull%20Romanus,so%20has%20history%20recorded%20it. Accessed: 24 October 2024.
Fontefrancesco, M.F. 2023. Affective Economy: A theoretical outline. Encyclopedia, 3(3): 1020-1027.
Kunene, M. (1978) Emperor Shaka the Great. East African Publishers.
Madlingozi, T. (2018) ‘South Africa’s first black lawyers, amaRespectables and the birth of evolutionary constitution – a review of Tembeka Ngcukaitobi’s The Land is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism,’ South African Journal on Human Rights, 34(3), pp. 517-529. doi: 10.1080/02587203.2018.1557371.
Magubane, M. B. (2001) Social construction of Race and Citizenship in South Africa. Paper prepared for the United Nations Research Institute for Social Development (UNRISD).
Mutua, M. W. (2001) ‘Savages, Victims, and Saviors: The Metaphor of Human Rights,’ Harvard International Law Journal, 42, p. 201.
Maloka, E. (2014) Friends of the Natives: The Inconvenient Past of South African Liberalism. South Africa: 3rd Millennium.
Masilela, N. (2013) An Outline of the New African Movement in South Africa. Africa World Press.
Miller, R. J. (2011) ‘The Doctrine of Discovery: The International Law of Colonialism – A Comparative Analysis,’ Lewis & Clark Law Review, 15, p. 847.
Ramose, M. B. (2005) ‘Towards Black Theology without God,’ Theologia Viatorum: Journal of Theology and Religion in Africa, 29(1), pp. 103-130.
Ramose, M. B. (2018) ‘Towards a Post-conquest South Africa: beyond the constitution of 1996,’ *South African
Taiwo, E.A. 2009. Repugnancy clause and its impact on customary law : comparing the South African and Nigerian positions – some lessons for Nigeria. Journal for Judicial Science, 34(1).
[1]For the purposes of this essay the name South Africa is placed in inverted commas to reflect that it is an ethically and politically contested name. The Pan Africanist Congress and the Black Consciousness movement regard the geographical area called South Africa by the European conqueror to be Azania.
[2] “This doctrine prescribes that the courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural justice, equity and good conscience. The doctrine is generally criticised for its use of foreign standards to assess the validity of the customary law rules” (Taiwo 2009).
[3] “Customary law is generally unwritten law. It is fixed practices in accordance with which people live because they regard it as the law. Customary law therefore does not concern all customs or practices, such as practices of polite behaviour. Old Germanic law also consisted of customs” (Department of Justice and Constitutional Development n.d.).
[4] “The affective economy is a concept that emerged within the field of social sciences, focusing on the interplay between emotions, affects, and economic processes” (Fontefrancesco 2023:1021).
