In this conversation with Léopold Lambert in the Center for Applied Legal Studies at Wits University (Johannesburg) that he directs, Tshepo Madlingozi exposes the many reasons that made the 1996 Truth and Reconciliation Commission (TRC) a reinforcement of settler colonialism and white supremacy in South Africa. Associating the theoretical framework of Steve Biko’s Black Consciousness with a legal examination of the way “transitional justice” has been operating since the official end of the Apartheid in 1994, Tshepo shows us that actual decolonization of what he calls “the country with no name” has never been on the table.
Tshepo Madlingozi is a lawyer working on critical philosophy of law and how constitutionalism perpetuates settler colonialism. He is a professor at Wits University school of law in Johannesburg, as well as the director of the Center for Applied Legal Studies.
EPISODE TRANSCRIPT ///
LÉOPOLD LAMBERT: We are having this conversation in Johannesburg, which brings up not only the city, but also the country that we are in. You call this country “ the country with no name.” Could you tell us why?
TSHEPO MADLINGOZI: I mean multiple things. I started using that notion around 2014. Before that, every time I introduced myself after being asked where I am from — I’d answer « I’m from South Africa.» But what is South Africa ? The name « South Africa » indicates a geographical indication: south of Africa. It is a country without a name because it has no specific name. It’s a country that denotes a specific geography. It is only one of two countries in Africa without a name. And the other one would be the Central African Republic.
LL: And Western Sahara…
TM: …and Western Sahara of course! Which is still colonized. Secondly, I mean that South Africa is a country without a name because it is a country that was constituted by settler colonialists. In African culture, in fact in all cultures, you name your child. “South Africa,” the territory, is nameless because it was named not by its heirs, but by its violators, its usupers. We forget that this is a very new country, created in 1910. They decided to call it “South Africa.” A country founded by blood, baptised in blood. Thirdly, this alienating baptism was done that way to denote the sense that this territory is not part of Africa — it is in Africa, but not part of Africa. Of course, settler colonialism means that the settlers come from their homeland and make home somewhere. But in the process of the settler making home somewhere, they destroy the home of those who are colonized. So my PhD was all about this question: how do we apprehend the constituting of a settler colony, and therefore how do you de-constitute it in constitutional terms. And the main point here is that in “South Africa,” settler colonialisation — not just colonialism — meant the destruction of the social-cultural world of Indigenous people, of African people. And on top of it was imposed, this alien thing. The condition of possibility of South Africa is, therefore, the conquering and suppression of African kingdoms and the forceful incorporation of so-called native people into a “white men’s polity.” Fourthly, this country is without a name because it is a country that doesn’t belong to the majority of its citizens; it is a country that denies History. That’s why it is “South Africa”: nameless, rootless and ultimately, dismembered. For Indigenous people, it is a nothing, a country that perpetuates the notion of unhomeliness, dislocation, and rootlessness. Black people are nominally “South African.” They are in South Africa, but they are not rooted in South Africa. This was part of settler futurity, of constituting South Africa — a country that belongs to certain people; a minority. Look at my birth certificate for exemple. It says my name, my surname, and it says my homeland. And this is my homeland: it’s a place called Qwaqwa. I’ve never been to that place, my mother’s never been to that place, my father’s never been to that place. The colonial regime assigned one homeland for my mother and designated another homeland for my father. The colonial regime declared me of a totally different homeland. It is a joke. It is a farce. It is meant to dislocate me forever.
So the sense of rootlessness, the sense of worldlessness, not being in the world, is part of settler colonization. It’s part of this name. The naming is part of this alienation and dislocation. The point here is this: this name does not just perform physical dislocation because people have been removed from place to place; from ancestral lands to “elsewhere” to make space for white people. “South Africa” is not just a constant, insistent reminder of physical dislocation; it is a reminder of cultural subjugation. Finally, and relatedly, of course South Africa sees itself as/in the image of Europe. That is why the name is in English. It does not see itself not as part of Africa but almost as a country next to Portugal. So cultural subjugation, but ultimately also psychic dislocation: you don’t know who you are. The question “Who I am?” is really a question that continues today because of the alien culture that we call South Africa.
LL: This was for the “where.” There’s also the “when.” We are September 12, 2019, which is the 42nd anniversary of the execution of Steve Biko, who is immensely important in the constitution of Black consciousness in South Africa. You kindly sent me a text that you wrote about the total fallacy of transitional justice, and that’s what we are going to talk about throughout this conversation. It also describes the way that time is approached in nationalist and settler colonial narratives in South Africa. I haven’t been here for many days, but as any person who comes here, I’ve been to the Apartheid Museum, I’ve been to the Hector Pieterson Memorial, and in both cases the national narrative seem very negotiated if not bargained. The information was also incredibly linear in the way one would experience the Apartheid Museum to end up in this sort of “rainbow nation” that triumphes over white supremacy. In a text, you talk about the nationalist effort “to distend the time” in this extreme linearity of time. Could you please tell us more about this?
TM: Yes. I began talking about the question of settler colonialism, but we should talk about “settler colonization.” The settler never sees himself as not being in a dominant position. He has to always entrench a notion of settler in continuity, settler futurity, that says that even when colonialism ends, he will still dominate — this is the settler’s vision. I am very obsessed by this idea of how in South Africa post-1994, we moved from settler domination — you know, the boot on your face — to settler hegemony. Part of making an hegemony possible is by producing certain discourses and, as Foucault tells us, discourses shape subjectivity. One of the key one is the notion of time. Here in South Africa, there’s the notion that there was conquest. Then there was the fight between Afrikaners and English. They came together. Then they stopped being a colony of Britain, a settler colonial state. It became a Republic in 1963. And then, the end of the Apartheid, a “rainbow nation.” This is the idea of teleology toward something good. That narrative serves to distance the past from the very real fact that “the past is in the present” as members of my old organization used to say. The past is in the present. Most importantly, this teleology serves to mask the transition from settler domination to settler hegemony in the economy, in the cultural sphere, schooling, etc., in how history is viewed… It tames the memory of offence.
You know I was the chairperson of an organization of about hundred thousands members: victims and survivors of Apartheid; people who had been tortured during the Apartheid, whose kids were disappeared and so forth. Now if you look at them, just if you look at them, you see the scars on their bodies. You see their poverty, their material poverty. You see their mental illness. You see how the past continues in the present. So the notion that there was a birth of a new nation in 1994 is masking the idea that settler domination has become settler hegemony. That’s number one.
Number two is a manifestation of cultural colonial domination. In African cosmology, time is never linear. Time in African cosmology is cyclical, it goes in circles. Time is never from A to B, never. That’s why when we tell our stories, they go back and forth. It can confuse you, if you are not used to that kind of cosmology. This is why the term “ancestors” is such a terrible term. Ancestors means “those who are dead,” but in our culture, as you know, they are here. My father, who is “dead,” is here. He’s a Living-Dead, if you like. So time in African society is never linear, it’s cyclical.
The notion of closed Apartheid, of a new nation, of a new constituted society really serves the work of settler logic, which is to say to all of us: “there’s no need to fight anymore. Black people have won. It’s a new society.” While, as you said, you don’t have to be here for too long to see ongoing poverty, to see inequality, and now as you’ve seen this week, ongoing xenophobia which is an outcome of some of these problems. The notion of time really serves to distance the past from the present, it serves to stop us asking some very tough questions about “what is today?” I wrote another article called “Social Justice in a Time of Neo-Apartheid,” published in 2017, in which I contest the notion that we are in post-Apartheid. We are not in Apartheid. I have a job in a historically-white university, I direct this big center — that was not possible in the past. I live in a white suburb; I can be with whoever I want — maybe. But that is a function of settler colonization. When settlers are a minority, they have to make sure they assimilate some of us, the Black middle class. When you drive around you see Black people driving big cars, leading big institutions. But of course that is a veneer to cover-up the fact that colonization continues today. Again, colonialism is nothing. The big deal is colonization; a process or structure never an event, as Professor Wolpe reminds us.
LL: Let’s examine this concept of “transitional justice” that might be not so well known to some. In a lecture you gave in 2010, you distinguished five different points that compose transitional justice. Can you tell us about this before we get to their application?
TM: Let me start by saying that the notion of transitional justice should be known by everyone. It is a central discourse, a central practice that affects all of us in post-colonial countries. All of us are engaging with it without knowing it. All of us are responding to it, to its failure, to its successes, without knowing it.
So what is transitional justice? Transitional justice arose in the 1980s in Latin America mostly, in the context of military dictatorships ending and people transitioning to “democracy.” So a framework had to be found for such a transition. What framework do you put in place when a socialist rapture is no longer possible? So that’s the first thing we have to understand: it is a framework that is in conversation with the old Marxist notion of rapture, of capture of state. And this was a discourse that was introduced to say “No, you don’t have to do this, you don’t have to take over power, you can transition.” Transitional justice says: “For a brief period of time, you do justice differently so you can transition from dictatorship, from civil war, from human rights abuses to liberal democracy.”
Transitional justice is mainly made up of five tools: the first tool is usually truth commissions. The idea here is: “We don’t want to prosecute anyone, we want to be a new society, let’s all come together and confess our sins and say what happened. If we do that, it won’t happen again and we can move to a new society.” Secondly, reparations for victims. So the second component is that you give reparations to victims. The other component or the way of doing it is through prosecutions. If one party has won, it prosecutes those who have lost. It is not a fair system, it’s a victor’s way. We have seen it in Rwanda, we have seen it in many places where you win and you prosecute mostly army commanders and so forth. Fourtly, there is memoralization where you set up monuments, museums, and so forth. And lastly, things like the re-imagination of curricula, of education, so that people can learn good behaviors; towards non-repetition. So there are a number of components, but the core of it is the idea that you are using the law and quasi-law mechanisms into a new society. It is the framework that has dominated all parts of the post-colonial world after 1989. So all of us are children of transitional justice, from Latin America to North Africa to Southern Africa. All of us really are engaging with its failures. Why its failures? Because it promises to give birth to a new society, it promises to give birth to a culture of human rights, tolerance, and so forth, but it always fails. And I hesitate to say it fails, because, actually, it succeeds. It is designed that way. It is designed to say “do not decolonize,” “do not fundamentally restructure the economy.”
The obsession is on two things: the first is to make sure that the State is stable. This means certain questions are pushed to the back-burner, because we want the State to be functional again. Number two is the notion of coming together, reconciliation. Now, in a historically colonized setting, these two discourses, often, ensure that colonization continues. Let me give you an example with South Africa.
The South African state is a colonial state even today. It’s a state that was set up in 1910, whose condition of possibility, as I said before, was the subjugation of African kingdoms. That state continues today. There was never state succession there was government succession. So transitional justice says “forget about the State, the State must stay as it is. Just change the government through democracy.” So questions of how do you fundamentally decolonize society are pushed aside. Questions of the economy are also pushed aside because we are concerned with “liberal peace.” “Please let’s come together and we will see what we do after that.”
In South Africa, the discourse of reconciliation meant difficult questions about who owns the minerals of South Africa, who owns the land, who killed who, who benefits from racial capitalism: those questions were said to be bad ones; questions by spoilers of peace. You are a bad victim, if you ask those questions. So far, the discourse and practice of transitional justice have not engaged deeper with the questions of the economy, of the land, of knowledge-systems. In other words, can there be a transition if the economy is not fundamentally redistributed, if Indigenous people are still landless, rootless and homeless; if their frame of references and knowledge systems are still subjugated?
LL: In the context of “the country with no name,” there have been the Truth and Reconciliation Commissions in 1996 —everyone who is old enough remembers that moment. Those are the paradigm of what you are describing. The five points also recall some sort of recipe made up in the world of companies — of course, conflict resolution in the context of companies is for the companies to remain productive. I was also very interested in you quoting Desmond Tutu saying retrospectively admitting that a lot of the commission had been happening within a very Christian theology and it was much less what you described as Bantu theology of Ubuntu. Could you tell us about that?
TM: The Truth and Reconciliation Commissions (TRC) which is one of the big things that South Africa is known for. The idea being South Africa is a model of conflict resolution because there was no “victor’s system” of prosecution. The TRC is said to be this great table of humanity. “We came together and we reconciled.” It’s a big lie, it’s a fallacy. For a number of reasons. The TRC had a lot of mistakes but also in-built flaws within it.
First of all, there is the question of timing. The TRC began in 1996. Apartheid, officially, ended in 1994. However, the “conflict was ongoing; lots of people were being killed. So how do you expect people to come together in the context when conflict is ongoing? In that context, people don’t trust state institutions; many people are still displaced; people are still mentally scarred. In that climate, how do you expect them to present themselves to the State? The State is the enemy! There is no way two years can magically change that. It was too soon, but also too quick. Thus, the timing issue had to do also with the fact that the TRC was rushed. Two years, and that’s it: 1996-1998! Two years. So we have a lot of cases where a lot of people were left out of the process. And if you ask them “Why weren’t you part of the TRC?” some of them say because “I was not in South Africa then” ; “I was displaced” ; “I was not in my town because the conflict was still ongoing,” or “I was too young” or “I was mentally not okay.”
Secondly, there was also a problem of geography. The TRC did not go to many far-lying areas, farms and villages. Thirdly, there were also administrative problems with the TRC. You find cases where the statement taker of the TRC, the person who takes your statement, speaks only one language. You are a victim, you speak another language: you don’t understand each other. So there are cases that I’ve dealt with where five persons were involved as victims because of a bomb. But three of them are put down as victims and two of them as witnesses because of language issues. There are a lot of mistakes. The other thing is that TRC statement takers were paid per statements taken. So of course that means some statement takers were rushed; they took statements very quickly in order to take as many statements as possible. Ultimately, one could say that South Africa’s transitional justice resulted in a situation where victims’ pain was appropriated for elite reconciliation, for politicians to reconcile.
But not for social reconciliation. I called the article that I sent you “Transitional Justice as Epistemicide.” “Epistemicide” means the killing of Indigenous knowledge, the killing of other people’s way of understanding the world. And TRC was a classic case: TRC continued a conquest of knowledge.
And as you saw, it was heavily influenced by Christianity. So for example, “forgiveness” is understood and instantiated in divergent ways in Christianity and in most African cultures. In our culture, you must give me something to show that you are very sorry. But in Christianity I slapped your cheek, you show me the other cheek to slap you again. So not only does it not make a difference materially, in terms of redress, in terms of restitution, but it also meant the continuation of the conquest of the mind, of being in the world. Epistemicide because the African notion of social reharmonisation was subjugated. It was Christian theology on the one hand, and Western legal discourse on the other. TRC, like all the others in the world, are based on Western legal culture. If you say that something happened to you, you must give me witnesses, you must tell me where it happened, you must give a statement in a certain way.
LL: We’ll go back to Ubuntu later then. Something I find particularly striking about the TRC is that they seemed to presume that what needed to be expressed was the idea of human rights violation — something that is fundamentally coming from the West. Human rights violations involve events that are identifiable; it does not mobilize the entire structure of settler colonialism. Instead of considering colonized people, it produces victims, that is people who have been subjected to a punctual and identifiable prejudice.
TM: The TRC is a clear indication that, in a settler colonial context, the hegemonic discourse and praxis of human rights do not work for many reasons we can talk about later on. In the case of the TRC you had to mostly come as an individual victim and say “that perpetrator shot my father or that perpetrator tortured me.” Individual to individual. So the structure, the system was never on trial. Apartheid as an evil system was never in question. It was an individual case, people misbehaved and tortured people. Everything was okay. And of course that’s the logic of settler colonization: South Africa, the State, was okay, and it is legitimate. The idea is that “some people misbehaved and they must be sent to prison.” And there must be democracy, not decolonization, not de-Apartheidition. We didn’t hear that.
Let me give you an exemple. My father was a mine worker. Like many Black fathers, we never saw him: he would come every four month to five months. All of us grew up without fathers, which meant that all of us grew up without knowing how to become a father, how to become a man. But it also meant the destruction of a lot of families and therefore the destruction of a lot of Black societies. So the (migrant) labor system was at the heart of Apartheid, destroying Black families, causing so much trauma to everyone. This might be Apartheid’s main success. That question did not come up before the TRC.
Number three, beneficiaries of Apartheid were not part of the TRC. In every oppressive system as you know, there are beneficiaries. Ordinary white people who do not kill but benefited from Apartheid did not have to come to the TRC. So beneficiaries were excluded from the TRC. But you also talked about the notion of victim. That’s how I came up with the notion of “bad victims-good victim” in a 2007 paper of mine. You are expected to perform in a certain way: calm, magnanimous, demand justice and then accept an apology and then go home. You have to perform that; if you perform that you show that you are a good new South African. You show that you are part of building a new society. If you don’t engage in that performative newness, you are a bad victim. You don’t want democracy. You are put in a certain category. You are said to be part of the past because you don’t want to move on. A good victim is a victim who accepts that Apartheid is over, accepts apology and moves on without any material changes in their whole lives.
LL: And when we enter the question of structural violence through the notion of “victims” the story of those who are accepted as victims becomes a commodity.
TM: Right! This is why in another article of mine I talk about “Transitional Justice Entrepreneurs.” Transitional justice inevitably creates people that make careers out of historical injustices, and, ironically, the failures of transitional justice which they sell to everyone else. They write books, they do manuals on how to export post-conflict practices everywhere, they become commissioners, they become professors. But others are victims. They remain ineluctably victims. Victims cannot speak unless they are spoken on behalf of. So it really pushes this idea that there are victims and there are saviors — a moral hierarchy. In the context of South Africa, of settler colonization, the saviors were white people. People who benefit from Apartheid benefit again by telling victim stories, by becoming the saviors, by establishing organizations of civil society. A very missionary concept of saving others without looking at yourself. What about yourself, have you changed? Are you truly redistributing economic power? Are you distributing discursive power?
Steve Biko spoke of the idea of “perpetual teacher/perpetual pupil.” He said if you integrate South Africa, meaning if you bring white people and Black people together, without decolonizing, you are going to have a situation where you have masters and servants. A situation where some are the teachers and some are objects of study or, at best, wards under perpetual development. That continues today. I blame transitional justice because it produces the notion that some people did not have any other political subjectivity: they were just victims. Even if you were a politician, an activist, the TRC in a very biopolitical way produces you only as a victim.
LL: As a last chapter of this conversation, I would like to talk about decolonization properly or, at least, visions of what it could be. Listening to you throughout this conversation made me think about something that I hope is relevant. That is the way a concept like the “Relation” of Caribbean philosopher Edouard Glissant has been completely taken, whitewashed by so many people as the relation being this nice relation, a “rainbow nation” when, actually, what Glissant wrote about the relation had to do with the un-erasable relation between the enslaver and the enslaved, the colonizer and the colonized. You cannot erase this relation in any possible way, in all its violence. You can build on it, but it can never be erased. This takes us from transitional justice to reparative justice I believe. Is that something we can understand through the concept of Ubuntu?
TM: Ubuntu is a central philosophy of African people — the whole continent, not just South Africa. It has different names but is the same thing: Ubuntu or Botho in South Africa. It is an ethical prescription that says you are not a person, you are always becoming a person. No one is ever a person. Personhood is becoming. And you are only a person if you do humane acts to other persons. You stop being a person if you are evil to other people, if you hoard resources if you steal from other people.
The first idea is then the idea of relation: you are also inter-are, to use Thich Nhat Hahn’s notion. Not just people, but also non-human beings, animals, deities, gods and the Divine ancestors. But it demands two things: first truth, second justice — otherwise this relation is false. Truth and justice.
In the context of South Africa, during the TRC, Ubuntu was appropriated to facilitate “reconciliation” in the terms I explained earlier. We were told: “Black people, you are a people of Ubuntu, therefore you must forgive. Ubuntu says ‘I am because you are, because you are therefore I am, therefore just hug and forget’.” It was very scary but that is what colonization does: it cannibalizes your most intimate discourses and uses them against you. So Ubuntu in South Africa was this wishy-washy thing where you forgive and you move on. No truth about what had exactly happened in South Africa. Who did what to whom? The truth about what must be put in place to ensure non-repetition.
Number two, justice. What would it take for us to build a humane society? That was pushed to the backdoor. Justice was evacuated from this very metaphorical idea of Ubuntu; it became meaningless. Someone gave the example of a bicycle: you steal my bicycle, you come back several years later and say “I am sorry I stole your bicycle.” I say “Okay, I forgive you.” We shake hands and then we go. But the bicycle is still with you. How are we gonna establish a relation then? Or as Edouard Glissant puts it, a “poetics of relation.” Ubuntu is not easy. It demands truth and justice.
What is the truth of South Africa today? It is the truth of ongoing colonization. It is not easy to say this but it is the truth. It is the truth of Black middle class like myself being assimilated into the white world. It is the truth about structural impoverishment. It is the truth about ongoing war against women and girl children. It is the truth about the phobia and hatred of the Black immigrant. It is the truth about epistemic racism and sexism. It is the truth about spiritual and cultural subjugation. The truth about heteronormativity. The truth about ontological inferiorization of people racialized Black. And they continue as the “triple Rs”: Reparation-Restoration-Restitution.
Ubuntu says we are all human beings. But how do you build a humane society? Ubuntu is really the vehicle toward inter-culturality, inter-legality. It’s the road toward post-xenophobia, post-homophobia, post all of this because it is about people coming together based on truth, based on justice. For that to happen, “South Africa” must fall. ■