The rule of lawlessness

Daniel Herwitz on the pathology underlying the EFF's disruption of SONA

If the goings on in Parliament during Cyril Ramaphosa's February 13th State of the Nation address are any indicator, South Africa is a carnival, not a country. As the President tried to begin his speech he was repeatedly interrupted by male members of the EFF (while their womenfolk sat silent), who flashed their red costumes at the cameras, making Julius Malema's basso remark that "there is no party here, there are members of parliament who should be recognized as individuals", cause us to ask: then why are all these persons wearing the same uniform if there is no party? EFF redcoats resemble costumes worn behind bars, so perhaps these jackets are previews of coming attractions?

The EFF flashed the Parliamentary rule book endlessly, in the form of threat. This is Wild West democracy; the idea that the laws by which a democracy functions are there for your own private purposes of eruption or disruption, for yourself alone (and your party) but not for others, who, were they to do the same would bring down the house in chaos. It is this sense of entitlement that laws (the rule book) are there for me if and when I want, or are there to be ignored when I don’t, which demonstrates that the long history of South Africa is alive and well in its current incarnation as EFF circus maximus. Clearly the EFF’s shenanigan are not a deviation from the rules of order, but all too sadly the norm.

A brief recounting of South Africa's history of law will help to make the point. Colonial law was written so that the victor, meaning the settler, could extract what he wanted. The Land Act of 1913, among the most egregious of South Africa's many edicts, disenfranchised Africans from owning most of the land of the country with the purpose of sending the males to the mines, where they were needed as cheap labor. The Apartheid state composed its horrendous bible of laws (the architecture of Apartheid) so as to raise the Afrikaner from the status of poor white to that of middleclass bureaucrat, after he or she had been nearly destroyed by Lord Kitchener and the Crown.

This is the unfortunate common fact of South African citizenship then as now: the claim that public law is there for me and my party, but not for all. This massive devaluation of law is the legacy of colonial and Apartheid South Africa, where law was either experienced as a yoke of oppression, or a silent nod to get away with whatever you wanted so long as it wasn't perceived as a threat to the state.

Now the position of the white South African, long trained that law was for him, there to suit his interests and be ignored at will, has been universalized to all. It is a silent code of citizenship: law is a form of self-service. I may drive in any way I like so long as you don't. I may treat you like an underling, threaten you with my little gang of lawyers when I don't get my way, complain that your car is blocking my driveway when it is not because I don't like having to negotiate it.

I had a Cape Town landlord whose idea of justice was to quote rule 47.B of the lease whenever he did not wish to do the right thing, meaning pay. As if the rules were his private weapon rather than a common bond between us. When challenged (by me), he immediately mobilized his retinue of lawyers in the manner of Lord Kitchener's troops. Many South Africans threaten to sue on a cent because all too often they view the law as their personal fiefdom.

Then there is the Fallist who, while genuinely disgusted with racial inequality, including that still obtaining at universities, claims unto themself the rights of an entire community: to rewrite the institution in whatever way suits and disrupt anything that doesn't. This is a terrible case of bad driving, since it nearly drove universities into the ground. The justification was an appeal to Fanon and his idea of historical pain, under the claim that only I have this pain, you don't. Again, the same logic of subversion: a universal principle applied to self at the expense of other, who is excluded from sharing in it.

The other side of this moral fault line is paternalism, perhaps the default South African morality from the past, which says, okay maybe the law doesn't let you have this or that, but “ag man I like you so I am going to give it to you anyway”. There is generosity in this attitude, which arose from a combination of settler self-reliance and oppressive law. But the attitude is part of a moral ensemble which prevents genuine emancipation because predicated on the devaluation of law, meaning mistrust or contempt for the crucial role of law in regulating and bringing about public equality. We have one of the most emancipatory Constitutions in the world, but its power is all too truncated by this moral ensemble.

The EFF is behaving in the best of South Africa's vicious moral traditions when it claims that because it can recite the rule book it therefore owns the rules. This rancid historical legacy, from colonial times to the present, has been one predicated on the use of law as a weapon uniquely for self and group, a weapon that others should not be entitled to similarly use.

The EFF--while singled out as all corrupt parties must be--should also be understood in the light of these South African norms. The function of law has been to create inequality, not resolve it. It seems to me that the carnival will keep playing until it is understood that transformation must involve the achievement of new forms of moral consciousness that recognize the role of law as binding us together, without special privileges.

Only then we can begin to act like we belong. Together.