A decade ago I came across a map labeled “PROJECT CONSOLIDATE.” It showed the borders of all the 200 plus municipalities in South Africa. The map was white except for the bright red of the 136 “dysfunctional” local municipalities subject to “Project Consolidate,” an administrative intervention by the central government. At the time I was working at the Dullah Omar Institute (formerly the Community Law Centre) the University of the Western Cape. For me the map was striking because its red areas matched the Bantustans (later “homelands”) of the old apartheid-era maps. I could not have understood the import- ance of this similarity without having read Mahmood Mamdani’s Citizen and Subject. Mamdani is not a lawyer and his book is not about constitutions. It is rather a deep study of the structure of the colonial power in Africa and its contemporary legacies. The book is a masterful synthesis of a century of colonial and postcolonial governance that brings together several disciplines, including legal anthropology and law. Mamdani argues that the African colonial state had a distinctive structure bifurcated between the “civil” and the “customary.” In the civil sphere courts governed urban (white) citizens through European laws, while in the customary sphere “traditional” authorities governed rural (black) subjects through customary law. Thus the African colonial state was constituted through a racialized distinction between citizen and subject. After independence African states struggled to overcome the deep legacies of racial and tribal divisions. “To bridge the rural and the urban through a politics both noncoercive and democratic,” Mamdani concludes, “it is necessary to transcend the dualism of power around which the bifurcated state is organized” (at 300–301). Let us look more closely at Mamdani’s argument through the case of South Africa. He places South Africa at the center of his analysis, a provocative move that rejects the (still) dominant scholarly assumption of South African exceptionalism. Mamdani begins his historical study of what he calls “decentralized despotism” by pointing to its origins in Natal in the late nineteenth century. In the Natalian system of “indirect rule,” a single European administrator ruled African subjects through traditional authorities (“chiefs” or “headmen”) appointed over each ethnic group (“tribe”). The chiefs administered their tribe through its particular “customary” law. “Customary law” was distinct from civil law (Mamdani’s term for common and statutory law applied to white citizens) since it was arbitrarily administered without (or with very limited) appeal to judicial review. For Mamdani, decentralized despotism is the enduring legacy of a century of colonial rule in Africa. European rulers imposed it in various forms across the continent to reconstitute society as the aggregate of tribalized units ruled by the arbitrary discretion of authoritarian administrators. Decentralized despotism reached its apotheosis in South Africa with the extreme form of apartheid, which created discrete territorial “homelands” for each distinct African ethnic group. After sketching the historical constitution of power in the colonial state, Mamdani then studies the various attempts to deconstruct or demolish this form of power during decolon- ization from the 1950s onward. In the former British colonies, most new states were left constitutions setting up a Westminster system of parliamentary government restrained by a bill of right. However, this constitutional model did not directly address the actual structure of power. In Mamdani’s analysis the reason that the British model constitutions failed in every case (except, perhaps, Botswana) is that the constitution-makers had presumed a unified civil society governed by written law, while the reality was a bifurcated system in which the vast majority were tribalized subjects ruled by the despotic authorities arbitrarily applying customary law. Mamdani explains African politics after independence as a history of different solutions to this contradiction. Many states quickly succumbed to coups by military forces that stepped into the despotic role of the departing colonial rulers. While they usually enacted republican constitutions, they actually ruled by a form of ethnic brokering that built on and so reproduced the politics of indirect rule. At this point Mamdani turns away from the general post-independence story to examine two specific experiences of resistance. The first case is the National Resistance Movement and Army (“NRM/A”) led by Yoweri Museveni in Uganda. This movement was formed out of local peasant resistance to a succession of military governments dominated by particular ethnic groups. For me the most striking part of the story was the history of the Ugandan constitution of 1995. It was the product of perhaps the most radical experiment in the history of participatory constitution-making.1 While this experiment deserves more study by constitutional law scholars, the key point for Mamdani was that how the NRM/A tried to break down decentralized despotism through a decade-long process that first fostered democratic local councils in rural areas (democratizing the rural) and then drafted the structure and substance of the constitution for a civil society (linking the rural and urban). Even if the new constitutional order has ossified into authoritarian rule, the original experiment shows how the process of constitution-making could help to deconstruct the structure of colonial power. Citizen and Subject concludes with an ana- lysis of Mamdani’s own empirical study of migrant workers in the mining hostels of South Africa. These men linked the rural Bantustans to the urban cities, and thus connected the customary to the civil and the ethnic to the democratic. Like the NRM/A local councils, the migrant workers developed democratic practices to manage the contradictions in their ethnic and economic relationships. These local practices were reflected at a national level in the contemporary constitutional negotiations between the African National Congress (ANC), the National Party, the Inkatha Freedom Party, and several smaller parties. In Mamdani’s ana- lysis, the violence in hostels and rural communities (especially in the KwaZulu “homeland”) reflected the same deep challenge of decentralized despotism for constitution-makers. This brings us back to the municipal map of South Africa. By historicizing the structure of power in contemporary African states, Mamdani suggests an approach or attitude to the study of contemporary comparative constitutional law. The story of Project Consolidate shows how a historical understanding of the constitution of power can open new analyses of neglected areas of constitutional law. It is especially true of local government, which continues to be of very marginal interest to constitutional law scholars.2 The South African drafters of the Constitution of 1996 intended to transform society by creating the institutions and culture of an open, democratic and right-respecting state. The most famous tools of transformation were the socio-economic rights. Democratic local governments were primarily responsible for delivering the services necessary to realize these rights. Thus democratically elected local councils would work to transform society by working toward the material and moral dignity of each citizen. After a decade of experiments with local democratic councils, the South African government implemented Project Consolidate to address the persistent failure of some councils to provide basic services to realize constitutional rights. The invention was framed as administrative assistance from the central government to local governments since only provincial governments could directly intervene through the section 139 process of the 1996 Constitution.3 Since 2004 nearly every municipality in the former “homelands” (and other “black spots” like townships) has been under some form of direct administrative intervention. In light of Mamdani’s book, this minor story of South Africa’s constitutional transformation becomes the key to understanding and analyzing this attempt to deconstruct colonial structures of power. Project Consolidate and its successor effectively reproduce the apartheid-era forms of authoritarian and technocratic governance for most rural citizens. Ironically, the intervention is justified as a necessary step to improve the “service delivery” of socio-economic rights.4 Thus democratic local government is sacrificed to human rights. The effect has been to create two practices of local government: elected councils in urban and predominantly urban municipalities and direct central government administration in the rural municipalities of the former “homelands.” Adapting Mamdani’s approach to comparative constitutional law provides a powerful method to analyze how constitutionalism succeeds or fails to address the legacies of colonial structures of power. In South Africa the bifurcation of local life is not merely a minor question of administrative law. It has rather reproduced and even intensified the urban–rural division, and so threatens to undermine the Constitution’s promise of a democratic and open society. Last year the ANC barely managed to garner a majority of votes in municipal elections and lost its majority in four of the eight major urban (“metropolitan”) municipalities. Shortly before the ANC lost its urban hegemony, the national parliament introduced a Traditional and Khoi-San Leadership Bill (2015). Critics point out that the bill reintroduces arbitrary powers for traditional leaders and reproduces the “homeland” borders as the basis for customary law jurisdiction.5 The danger is that the ANC will try to consolidate its hold on rural voters by resurrecting indirect rule through traditional leaders brokering votes for money. My own work on comparative constitutional law is inspired by Mamdani’s approach. I have extended his historical analysis of African states to a global history of the politics and practice of British imperial rule in the nineteenth century. My study traces the evolving similarities rather than differences between the dependent colonies like India and the settler colonies like Canada.6 Legal histories of empire usually focus on the differences between dependent colonies governed by forms of indirect rule and settler colonies governed by increasingly democratic parliaments. However, this usual story ignores two forgotten parallels. On the one hand, settler governments also excluded indigenous subjects from democratic institutions and ruled them by administrators with near absolute authority. On the other hand indirect rule in the dependent and settler colonies was a relatively recent invention that superseded earlier forms of limited self-government under European tutelage in the late nineteenth century. This common legacy continues to haunt the liberal democratic constitutions of the Commonwealth states. A historical (re)turn is long overdue for comparative constitutional law.7 In the words of the intellectual historian Quentin Skinner, a history of ideas in context allows us to “stand back from our own assumptions and systems of belief, and thereby to situate ourselves in relation to other and very different forms of life.”8 But we need to go further by provincializing key concepts of constitutional law to understand their particular and contested meanings in colonial contexts.9 For example, what does the rule of law mean in the context of a postcolonial state constituted by decentralized despotism? In the Commonwealth context is not sufficient to say that such a state has failed if it does not meet an idealized standard abstracted from the actual practice of the UK and the settler states. The reason is that the rule of law has many particular histories of usage in colonial and postcolonial states that are different from, yet equal to, the ideal described in much contemporary constitutional law literature. Historicizing these concepts lets us see them anew in all their dazzling complexity and specificity. Let me illustrate this point with my recent analysis of the influence of the South African constitution on the Fijian constitution-making experience.10 Taking up Mamdani’s injunction to problematize and historicize, I first locate the colonial structure of power in Fiji as the conjunction of authoritarian rule and the communal distinction between Indigenous Fijians (iTaukei) and indentured Indian subjects (Indo-Fijians). The history of Fijian constitution-making was a search for solutions to the curse of communalism. Largely unaddressed, however, was the reproduction of authoritarian government that moved from the British rulers to the postcolonial military. The independent constitution commission chaired by Yash Ghai (which I briefly assisted) attempted a Mamdanian move by first transcending communalism with a set of institutional solutions and second subordinating the military to the civil sphere. The military government rejected the commission’s draft constitution in favor of its own constitution that produced the first constitution that excluded (almost) any communal protections in favor of a text focused on individuals as citizens as holders of human rights. In the Fijian context, however, this seemingly liberal constitution masked the suppression (and not overcoming) of communalism at the expense of a one-party state dominated by former military officers. As the military is almost exclusively iTaukei, the Fiji is remarkably similar to the postcolonial African ethno-states. Citizen and Subject is an exercise in intellectual therapy that I can recommend for any scholar seeking to appreciate our many forms of life—in both the past and present. While his object is Africa, Mamdani’s approach is accessible to anyone aiming to problematize, historicize, and analyze contemporary legal concepts and institutions. For the comparative constitutional scholar, the (re)turn to history promises a powerful perspective to address the persistent legacies of imperial rule across the globe. We would do well to take up Mamdani’s challenge to trade positivistic prescription for hermeneutical critique. Footnotes 1 For a critical history of the constitution-making process, seeDevra C. Moehler, Distrusting Democrats: Outcomes of Participatory Constitution Making ch. 2 (2008); Joe Oloka-Onyango, Constitutional Transition in Museveni’s Uganda: New Horizons or Another False Start?, 39 J. Afr. L. 156 (1995); Aili Tripp, The Politics of Constitution-Making in Uganda, inFraming the State in Times of Transition: Case Studies in Constitution Making 158 (Laurel E. Miller ed., 2010). 2 No I•CON article has ever taken local government as its subject. While there is a comparative constitutional law literature on local government, it is largely small, technical, and insular unless treated as a minor part of studies of federalism. 3 See, e.g., Christina Murray & Yoni Hoffman-Wanderer, Suspension and Dissolution of Municipal Councils Under Section 139 of the Constitution, 1 J. S. Afr. Law 141 (2007). 4 S. Mufamadi on launch of Project Consolidate Publications, Mar. 13, 2007, South African Government (2007), http://www.gov.za/s-mufamadi-launch-project-consolidate-publications. 5 See, e.g., Sobantu Mzwakali, Traditional and Khoi-San Leadership Bill—MPs Failed Dismally to Consult the Public Daily Maverick (2017), https://www.dailymaverick.co.za/article/2017- 04-06-groundup-traditional-and-khoi-san-leadership-bill-mps-failed-dismally-to-consult-the-public/#.WRJKD1KPBE5; Philile Ntuli & Thiyane Duda, State is Reinforcing Apartheid Injustices in Rural Areas Daily Maverick (2016), http://www.groundup.org.za/article/state-reinforcing-apartheid-injustices-rural-areas/. 6 I am currently completing a monograph entitled The Birth of the Native in the Late British Empire based on my doctoral dissertation. 7 What is often forgotten is that the Anglo-American tradition of comparative law was a turn from positivism to historicism inspired by the challenges of nineteenth century imperialism. Henry Maine adapted the method of von Savigny and the German Historical School to criticize the legal philosophy of Bentham and Austin. His historical jurisprudence traced the development of law from “status to contract.” In a later work Mamdani shows how Maine provided the intellectual foundation for “indirect rule” in Africa: seeMahmood Mamdani, Define and Rule: Native as Political Identity (2012); see also Coel Kirkby, Henry Maine and the Re-Constitution of the British Empire, 75 Mod. Law Rev. 655 (2012). 8 I Quentin Skinner, Visions of Politics: Regarding Method 125 (2002). 9 On this point, seeDipesh Chakrabarty, Provinci al- izing Europe: Postcolonial Thought and Historical Difference (2008). 10 See Coel Kirkby, A Cure for Coups: The South African Influence on Fijian Constitutionalism, inConstitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution’s Influence (Rosalind Dixon & Theunis Roux eds., 2017). © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
International Journal of Constitutional Law – Oxford University Press
Published: May 12, 2018
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