Criminal justice, cultural justice

JOHN L. COMAROFF American Bar Foundation University of Chicago JEAN COMAROFF University of Chicago

Criminal justice, cultural justice: The limits of liberalism and the pragmatics of difference in the new South Africa A B S T R A C T What are the limits of liberalism in accommodating the growing demands of difference? Can a Euromodernist nation-state, founded on One Law, infuse itself with another, with an African jurisprudence? And how is it to deal with cultural practices deemed ‘‘dangerous’’ by the canons of enlightenment reason? These questions are especially urgent in postcolonies like South Africa, with highly diverse populations whose traditional ways and means are accorded constitutional protection. Here we examine how South Africans are dealing with such ‘‘dangerous’’ practices in an era in which their nation is becoming ever more policultural; how, in the process, an Afromodernity is taking organic shape in the interstices between new democratic institutions and the kingdom of custom; how the confrontation between Culture, in the upper case, and a state founded on liberal universalism is beginning to reconfigure the political landscape of this postcolony—as it is, we argue, in many places across the planet. [law, culture, liberalism, postcoloniality, multiculturalism, policulturalism, Afromodernity]

nce upon a time, not so long ago, culture, in the lower case, was primarily an anthropological preoccupation. Not any more. It is hardly news that peoples across the planet have taken to invoking it, to signifying themselves with reference to it, to investing it with an authority, a determinacy, a superorganic unity of which even the most conservative anthropologist would be wary. Culture, now capitalized in both senses of the term, has come to provide the language, the Esperanto, of difference spoken in the active voice. And, as it has, its world-historical effect has been to unsettle all sorts of modernist certainties. Notable among them are some of the premises and promises of Liberal Theory, in the upper case: its hegemonic conceptions of civilization and civitas, its obsession with reason and rationality, its idea of universal truth, its authorization of positivist empiricism. As never before, the liberal nation-state—the political apotheosis of that theory—is being embarrassed by heterodoxy: by Culture as a primordial alibi for naturally different identities, each of which warrants respect, recognition, room for selfexpression, entitlement; also as a solvent that, to the degree that it overlays race, class, generation, gender, and citizenship, reduces politics to what Tom Vanderbilt has dubbed ‘‘a host of special interest groups clamoring in the trading pits of pluralist relativism’’ (1997:140). Not only in the trading pits. Also the law courts. From the world over come ever more legal challenges to Euromodernist ways and means, challenges made in the name of Otherness, of different kinds of cultural and confessional reason: like the struggle by Muslims to have their daughters wear head scarves in French schools, or Sikhs employed by London Transport to don turbans, or Orisha worshipers in the United States to sacrifice animals for ritual purposes, or Christian Scientists to refuse medical intervention. As these examples suggest, the phenomenon is not new, but the number of landmark cases seems to have increased exponentially since the late years of the last century. Most have involved relatively small, disempowered minorities, people who seek, sometimes with moderate success, to assert their difference, phrased as a right to freedom of belief, against the constitutional hegemony of the liberal

O

American Ethnologist, Vol. 31, No. 2, pp. 188 – 204, ISSN 0094-0496. A 2004 by the American Anthropological Association. All rights reserved. Send requests for permission to reprint to: Rights and Permissions, University of California Press, Journals Division, 2000 Center Street, Suite 303, Berkeley, CA 94704-1223.

Criminal justice, cultural justice

modernist nation-state; female Muslim cops in Britain, for example, may now don a hijab fringed in the design of the Metropolitan Police.1 But, in postcolonies like South Africa, the situation is significantly more complicated. There heterodox practices—some of them long criminalized by the colonial state, some of them regarded as dangerous by the canons of liberal modernity—are claimed by the majority of the population, indeed, by the very citizens in whose name anticolonial struggles were fought. And to whose empowerment postcolonial democracy is ostensibly dedicated. In postcolonies, in short, the challenge of Culture to the sovereignty of the state, to its constitution and its rule of law, seems everywhere immanent. Note, in this respect, the assertive practice of female circumcision in countries that have legislated against it, or the recent ascendance of Islamic sharia in the criminal law of northern Nigeria, or, at the southern tip of the continent, the anticonstitutional practice of compulsory circumcision by some ‘‘traditional’’ authorities, many of whom joust openly with the law of the land under the sign of custom.2 The examples are endless. In South Africa, the issue takes on especially stark proportions. This, after all, is a postcolony whose government, the African National Congress (ANC), is trying to fashion a highly enlightened democracy under the banner ‘‘One Law for One Nation’’ and yet, at the same time, to free itself from a legacy of Eurocentric domination; a postcolony rooted in a modernist culture of legality that seeks, explicitly if uneasily, to make space for cultural diversity and customary authority; a postcolony whose Minister of Justice and Constitutional Development, Penuell Maduna, has expressed regret, publicly, that its Euromodern constitution is not informed by ‘‘African jurisprudence’’ (Nkutha 1999).3 But to what extent is this possible? What are the limits of liberalism in accommodating difference? Can a Euromodernist nation-state, founded on the sovereignty of one law, actually infuse itself with another jurisprudence? Would it not invite a descent into Hobbesian—or, worse yet, Huntingtonian—pluralism? And why, in this equation, does the law keep raising its head? The equation itself, moreover, presupposes a Manichean opposition between Euromodernity and an Africanist politics of Culture. Is this the most appropriate way of phrasing the problem of heterodoxy in the first place? More consequentially, what happens in countries like South Africa, where cultural beliefs enjoy a large measure of constitutional protection, when customary usages run up against the ‘‘One Law for One Nation?’’ Could the immanent clash between Culture and the law be the corollary of a contradiction built into the very scaffolding of all postcolonies, which, as we shall demonstrate, are erected simultaneously on singularity and difference? If so, how is it to be resolved? Elsewhere (Comaroff and Comaroff in

n

American Ethnologist

press) we argue that this contradiction is unresolvable within the canons of liberal theory and practice. If so, what do human beings actually do when heterodoxy hits the limits of legal tolerance? How do they address the contradiction? And what are the historical implications of their actions for the ever more voluble confrontation, across the world, between Euromodernist universalism and cultural relativism? We approach these questions, in South Africa, by way of a particular instance of the conundrum: the challenge to the state and to the one law of the nation posed by cultural practices deemed ‘‘dangerous’’—dangerous because they imperil persons and property, defy received categories of legal reason, and flout the ways and means of Euromodern criminal justice. Of those practices, the killing of witches is perhaps the most acute affront to governance. Not only does it subvert the state monopoly over legitimate violence, but it also calls into question the extent of cultural recognition actually afforded by the South African Bill of Rights. After all, the action taken against witches is justified by the belief that they present a clear and present danger to the lives of their compatriots and to the well-being of their communities (cf. Auslander 1993; Geschiere 1997; Ralushai et al. 1996)—and also by the allegation that government is putting citizens at risk, and thereby violating their rights, by failing to safeguard them from injury and death by witchcraft, an allegation given circumstantial weight by the incapacity of the severely overtaxed South Africa Police Services to cope with the forces of crime and disorder perceived to be pervading the country (Comaroff and Comaroff n.d.). Patently, this kind of cultural policing is a scandal that no modernist state can ignore; it inevitably calls forth efforts to police culture. And, yet, under the new South African Constitution, traditional African practices cannot simply be criminalized. Herein then, at its most raw, lies the contradiction, the antinomy between Culture and the law, of which we have been speaking. It has provoked some extraordinary responses on the part of both the judiciary and those who appear before it, one of them being to play ingeniously on the difference between the procedures of criminal and civil law, another to ply the space between judgment and justice. This is most readily visible in the countryside, at a distance from the centers of governance, where there is more room for experimentation in coping with the implications of Culture for everyday life in the postcolony. Here, too, the pragmatics of the African vernacular make themselves most pressingly felt. Here, tellingly, is where an Afromodernity is being forged—in the teeth of the formal standoff between liberal universalism and the demands of difference—by ways and means that vex such tired notions as ‘‘hybridity’’ or ‘‘syncretism.’’ Because the standoff between liberal universalism and the pragmatics of difference—at least where we are

189


n

Volume 31 Number 2 May 2004

concerned with it—has a great deal to do with postcoloniality, sui generis, we begin with a lateral move: a brief excursion into the life and times of ‘‘the’’ postcolonial nation-state in Africa.

Reflections on the postcolony It is scarcely necessary any longer to note that postcoloniality—one of many contemporary terms marked by a prefixation on what they are not—refers to more than just ‘‘[the time] after colonialism’’ (Prakash 1995). Nor is it necessary to rehearse the fact that the term means very different things to different people (cf. Darian-Smith 1996; McClintock 1992), be it a subaltern, ‘‘oppositional consciousness’’ (Klor De Alva 1995:245), a particular sort of ‘‘politics of . . . struggle’’ (Mishra and Hodge 1991:399), or the historical grounding of a species of literary criticism.4 And, yet, in all the efforts to associate the term with a kind of sensibility, there has been a tendency to treat ‘‘the’’ postcolonial nation-state as something of a cipher on whose terrain arguments about the past, about identity, citizenship, consciousness, and other things, may proceed unencumbered by the bothersome details of actual histories, economies, or societies. Clearly, this is not the place in which to ‘‘theorize’’ postcoloniality, sui generis, whatever that may mean in this day and age. But, if sense is to be made of emerging forms of governance, politics, and popular subjectivity in postapartheid South Africa, or elsewhere, a few thoughts on the topic are in order. They have to do primarily with ‘‘hyphe-nation,’’ with the link between nation and state, state and nation. Some of them, perforce, reprise things we have discussed in other places (e.g., Comaroff and Comaroff 2000, 2001). The modernist nation, to recall Benedict Anderson (1983) and others, was erected on the often violent fiction of cultural homogeneity, on an imagined, if unevenly enacted, sense of ‘‘horizontal fraternity.’’ That imagining, it is often said, has always been more an aspiration than an achievement: The European polity, after Westphalia, is perhaps best viewed not as a singular, fully realized, definite article but as an ongoing work in progress, one that evinced a great deal of variation across time and space as it sought to harness the forces of industrial capitalism—forces that were never fully under its control. Furthermore, for all the idea, the idyll, that it was composed everywhere of right-bearing persons equal before the law, it excluded many from its political embrace and its commonweal. Typically, too, it was inhospitable to difference. Nonetheless, the fiction of a unity of essence, affect, and interest, of common purpose and civitas, underwrote the legitimacy of the state as sole guarantor of the collective well-being and individual entitlements of its citizens. Hence the hyphe-nation, the indivisibility of nation from state.

190

Much has been said in recent times of the so-called crisis of the modernist polity under the impact of global capitalism: of its shrinking sovereignty; of its loss of control over economic policy, cultural production, and the flow of people, currencies, and commodities; of a growing disjunction between nation and state (cf. Appadurai 1990). Whether or not ‘‘the’’ nation-state is alive and well, ailing, or metamorphosing—we prefer the third alternative—one thing is patent. The received notion of polities based on cultural homogeneity and horizontal fraternity, real or fictive, is giving way to imagined communities of difference, of multiculturalism, of ‘‘ID-ology’’ (Comaroff and Comaroff n.d.).5 This is true even in places as long antagonistic to heterogeneity as the United Kingdom, which, despite recent race wars on the streets of its northerly towns, now projects itself, with apologies to Benetton, as ‘‘united in its tolerance of color and culture.’’ And in ones like Botswana, perhaps the only democracy in the world never to have imprisoned anybody because of her or his political convictions and long regarded, if not altogether accurately, as relatively homogeneous. To be sure, the rising incidence of cultural struggles and ethnopolitics since 1989 has called forth a torrent of scholarly argument (see Comaroff 1996). There is no need to retrace that argument here. For present purposes, we merely need to note the fact. For most postcolonial nation-states the politics of difference are not new.6 Heterogeneity has been there from the first. Born of long histories of colonization, these polities typically entered the new world order with legacies of ethnic diversity invented or exacerbated in the cause of imperial governance. Colonial regimes, intent on the management of racial capitalism, never constituted nations in the Euromodernist sense of the term, even where they gave their ‘‘possessions’’ many of the ceremonial trappings of nationhood. In their wake, they tended to leave behind them not just an absence of infrastructure, but a heritage of fractious identity struggles, as well. This has been further exacerbated, since fin de sie`cle, by some of the cultural and material corollaries of neoliberalism: the movement across the planet of ever more people in search of work and opportunities to trade; the transnational mass-mediation of signs, styles, and information; the rise of an electronic commons; the growing hegemony of the market and, with it, the distillation of culture into intellectual property, a thing to be possessed, patented, exchanged for profit. In this world, freedom is reduced to choice: choice of commodities, of lifeways, and, most of all, of identities. This at a moment when the moral and material processes that drive desire and fulfillment seem, ironically, to be less and less under local control. And when access to the means of survival, of accumulation and profit, are ever more polarized both within and across nation-states.


As this implies, postcolonies evince many features common to the modernist polities on which, to a large degree, they have had to model themselves. In coming to terms with the implications of global neoliberalism, they appear, in fact, to exaggerate—or, more accurately, to hyperextend—those features; all of which makes it seem as if, in their temporal aspect, they are running slightly ahead of the unfolding history of the Euromodern nationstate. Perhaps they are harbingers of the postmodern future. But that is a topic for another time. Our focus here is on two corollaries of the founding of postcolonies not on homogeneity but on difference, not on deep horizontal fraternity but on a social contract among persons who are at once right-bearing individuals and identity-bearing subjects. The first corollary has to do with the refiguration of citizenship. The explosion of identity politics after 1989, most notably in posttotalitarian societies, has manifested itself in more than just ethnic consciousness. Difference is also vested, ever more deeply, in gender, sexuality, generation, race, religion, lifestyle, and social class—and in constellations of these things, sometimes deployed in highly contingent, strategic ways. Although most human beings continue to live as citizens in nation-states, they tend only to be conditionally citizens of nation-states: Their composite personae may include elements that disregard political borders, mandate claims against the commonweal within them, or both. In consequence, identity struggles of one kind or another appear immanent almost everywhere as selfhood is immersed into collective essence, innate substance, and primordial destiny (Comaroff and Comaroff 2001). What is more, the assertion of autochthony—which elevates to a first principle the interests, ‘‘natural’’ rights, and moral connectedness that arise from rootedness in a place of birth—has become an increasingly significant mode of exclusion within national polities; this, as Americans learned after September 11, 2001, in proportion to the extent to which outsiders are held to undermine the security of the homeland or the Wealth of the Nation. It is, putatively, in the name of the latter that the state is becoming a metamanagement enterprise in the neoliberal world7: in the name of subjects who, even as they seek to be global citizens in a planetary economy of commodities and cultural flows, demand also to be shareholders in the polity-as-corporation. Herein, then, lies the complexity. The fractal nature of contemporary political personhood, the fact that it is overlaid and undercut by a politics of difference and identity, does not necessarily involve the negation of national belonging. Merely its uneasy, unresolved, ambiguous coexistence with other modes of being-in-the-world. It is this inherent ambiguity, we suggest, that makes the ostensible concreteness of concepts like ‘‘citizenship’’ and ‘‘community’’ so alluring.

n


Of the modes of being that constitute the 21st-century political subject, cultural attachments are often taken, popularly, to run deepest. In many postcolonies, they are also the most marked. As we have said, ethnicity, like all ascribed identities, represents itself as grounded at once in blood and sentiment, in a commonality of interest and, by extension, in ‘‘natural’’ right; one of the great ironies of our time is that identity has become simultaneously a matter of volition and self-production through consumption and a matter of ineluctable essence, of genetics and biology. Add to this the fact that culture is increasingly seen, and legally protected, as intellectual property (cf. Coombe 1998)—even more, as a ‘‘naturally’’ copyrighted collective possession—and the conclusion is unavoidable: The world is witnessing the dawn of the age of ‘‘Ethnicity, Inc.’’ (Comaroff and Comaroff 2002). It comes as no surprise, therefore, that some ethnic groups have formally incorporated as limited companies; that a large number of others have established themselves as businesses to sell not their labor power but their heritage, their landscape, their knowledge, or their religious practices (see, e.g., Halter 2000; Oomen 2002:135); that yet others have successfully sued for the unlicensed reproduction of their symbols, sacred and secular; that serious scholars are beginning to see the ‘‘sustainability’’ of cultures to lie in their marketing and branding (Chanock 2000:26). Even in modern China, Arif Dirlik notes, ‘‘ethnic groups . . . which were defined earlier through political classification, are . . . beginning to perceive themselves also as ‘‘natural’’ economic groups’’ (2000:129); note, here, the stress on natural. Thus it is that identity, in the age of partible, conditional citizenship, is defined ever more by the capacity to possess and to consume; that politics are treated ever more as a matter of individual or collective entitlement, of ID-ology; that social being in general and social wrongs in particular are translated ever more into the language of ‘‘rights.’’8 Self-evidently, in this light, the term multicultural(ism) is insufficient to describe the fractious heterogeneity of postcolonies. Demeaned in popular usage, it evokes images of Disney’s ‘‘Small World,’’ of college courses in non-Western literatures, of ritual calendars respectful of human diversity, and the like; in short, of benign indifference to difference. Neither as noun nor as adjective does it make clear the critical limits of liberal pluralism: that notwithstanding the utopian visions of some humanist philosophers, the tolerance afforded to culture in modernist polities falls well short of allowing claims to autonomous political power or legal sovereignty. In postcolonies, in which ethnic assertion plays on the simultaneity of primordial connectedness, natural right, and corporate interest, the nation-state is less multicultural than it is policultural. The prefix, poli-, marks two things at once: plurality and its politicization. It does not merely

191


n


denote appreciation on the part of a national majority for the customs, costumes, and cuisine of one or another minority from one or another elsewhere. It is a strong statement, an argument grounded in a cultural ontology, about the very nature of the pluri-nation: about its constitution and the terms of citizenship within it, about the spirit of its laws and the division of its spoils, about its governance and its hyphe-nation. In South Africa this takes the form of an ongoing confrontation between Euromodern liberalism and variously expressed, variously formulated notions of ‘‘traditional’’ authority—and, by extension, the manner of their coexistence. Talk of rights, of culture as property, of citizenship, constitutions, and contestation brings us to the second corollary that flows from the heterogeneous social infrastructure of postcolonies. Whether weak or strong, intrusive or recessive, autocratic or populist, the regimes that rule them share one thing: They speak incessantly of and for themselves in the name of ‘‘the’’ state. Like those born of Euromodernity, postcolonial African states are statements (cf. Corrigan and Sayer 1985:30). They give voice to more or less authoritative worldviews, sometimes backed by military might, sometimes by carnivalesque ritual (Mbembe 1992), sometimes by mass-mediated shows of rhetorical force. But their language is not arbitrary.9 It is the language of the law. The modernist polity, of course, has always been rooted in a culture of legality. Its subject, as Charles Taylor (1989:11 – 12) reminds us, was, from the first, an individual whose humanity and dignity were formulated in a grammar of rights and legal privilege. The global spread of neoliberal capitalism has intensified the grounding of citizenship in the jural: this because of its contractarian conception of all relations, its celebration of ‘‘free’’ markets, and its commodification of virtually everything, all of which are deeply inscribed in the vernacular of homo juris. It has also required that received modes of regulation be redesigned to deal with new forms of property, possession, consumption, exchange, and jurisdictional boundaries (cf. Jacobson 1996; Salacuse 1991; Shapiro 1993). This process reaches its apotheosis in postcolonies, precisely because their hyphenation is so highly attenuated, because they are built on a foundation of irreducible difference, because they are endemically policultural. In them, the ways and means of the law—constitutions and contracts, rights and remedies, statutory enactments and procedural rituals—are attributed an almost magical capacity to accomplish order, civility, justice, and empowerment. And to remove inequities of all kinds. Note, in this respect, how many new national constitutions have been promulgated since 1989. Note also the explosion across the planet of law-related nongovernmental organizations (NGOs)— Legal Resource Centers, Lawyers for Human Rights, and the like—whose offices are now found in the most remote of

192

African villages. In South Africa, the language of legality has become so ubiquitous, the Constitution (in the upper case) so biblical, that virtually every organization has its own (lower case) analogue. A Law Train even travels around the countryside offering free legal advice; its volunteer lawyers take pains to encourage all citizens to pursue their rights and to address wrongs by legal means.10 In the upshot, the terminology of torts has come to loom large in the discourses and practices of the postcolony. But why this fetishism of the law? In policultural nation-states, the language of legality affords an ostensibly neutral medium for people of difference to make claims on each other and on the state, to transact unlike values, to enter into contractual relations, and to deal with their conflicts. In so doing, it produces an impression of consonance amidst contrast: of the existence of universal standards that, like money, facilitate the negotiation of incommensurables across otherwise intransitive boundaries. Hence, its capacity, most obvious under conditions of social and ethical disarticulation, to make one thing out of many, to carve concrete realities out of fragile fictions. Hence, too, its hegemony, despite the fact that it is hardly a guarantor of equity. As an instrument of governance, it allows the state to represent itself as the custodian of civility against disorder—and, therefore, as mandated to conjure moral community by exercising a monopoly over the construction of a commonweal out of inimical diversities of interest (Harvey 1990:108). It is this, to return to our point of a moment ago, that is made manifest in the rash of new constitutions written over the past decade or so. Each constitution domesticates the global-speak of universal human rights, an idiom that individuates the citizen and, by treating cultural identity as a private asset rather than a collective possession, seeks to transmute difference into singularity. It is an open question whether or not these constitutions, this obsession with human rights—indeed, with the language of legality itself—yield empowerment to those who previously lacked it. Constitutions do not, after all, guarantee the right to a living, only to possess, to signify, to consume, to choose. Nonetheless, the alchemy of the law, like all fetishes, lies in an enchanted displacement, one that resists easy demystification: the notion, not altogether unfounded, that legal instruments have the wherewithal to manufacture something that was not there before, to yield social value, to achieve political ends, even to orchestrate social harmony (cf. Lazarus-Black and Hirsch 1994). Its charm also lies in the fact that it obscures the most brutal of truths: that, in the ordinary course of things, power produces rights, not rights power; that law is itself a product of the political, not a prime mover in constructing social worlds; that law, alone, is not what separates order from chaos or an equitable society from a state of savagery.


Put together the fetishism of the law and the policulturalism of the postcolony and the outcome seems overdetermined: a polity in which struggles over difference—in particular, struggles over the authority to police the practices of everyday life—tend to find their way into the legal domain, often, indeed, into the dramaturgical setting of the courtroom. But here, surely, there ought to be an abrupt end to our South African story. To the extent that contestations over things cultural land in the realm of the juridical, and to the extent that this realm is dominated by institutions of state, what chance of success do claims made under the sign of ‘‘tradition’’ have against the hegemony of the Constitution, against the laws of the nation, against the ideological infrastructure of liberal democracy? This question rephrases, in more general terms, one we asked earlier. In a world regulated by Eurocentric jurisprudence, is it not to be expected that any assertion of Afromodernity, or any argument for the sovereignty of the kingdom of custom, has little prospect of prevailing? Would not the sovereignty of custom simply fade away of its own accord— or under the pressure of liberal democracy? U.S. critical legal theorists would probably concur, given their tendency to align the law with the power of the state; others, not least those who see multiculturalism as inimical to political community, would hope so.11 The matter, however, is not so straightforward. Reality turns out to be much more complicated, much more protean. Apart from all else, the kingdom of custom is not dying in postcolonies. In some parts of South Africa, in fact, it is thriving (e.g., Oomen 2002), so much so that, in spite of the history of contempt evinced by the ANC for vernacular ethnicity—some of its cadres still regard ‘‘African tradition’’ as a colonial vestige—its official line has, increasingly, been to pay respect to cultural difference and to the authorities who rule in its name (Comaroff and Comaroff in press). Recall, in this regard, Penuell Maduna’s plea for an African jurisprudence. At the same time, the ANC has tried hard to circumscribe the political salience of ethnic affiliations, among other things, limiting the role of local chiefs and kings largely to the ceremonial, the diplomatic, and the pedagogic—and to the administration of minor disputes and matters of economic management. This, self-evidently, is an outworking of the contradiction of which we spoke earlier, a contradiction framed, in South African public discourse, as a zero-sum opposition between liberal democracy and African custom. But there is yet more to the story.

From tough justice to alibis of unreason The man who took his neighbor for a bat: Culture as mistake In South Africa, the voices of legal universalism have a ready response to relativism, especially relativism in the

n


guise of ‘‘dangerous’’ customary practices. It is to insist on a clear distinction between culture and crime. As Seth Nthai, a former provincial Minister in Charge of Police, once put it, ‘‘Belief is not a problem of law and order. Violence is a problem of law and order’’ (Common Ground Productions and Ubuntu TV and Film 1997). The Constitution may allow citizens to believe in witchcraft; to act on that conviction, however, to kill a witch, is a felony.12 For its part, the judiciary, given its ideological grounding, has no option but to sustain this distinction. If a Euromodern system of justice is to work at all, it has to presume that the causes and consequences of illicit behavior are matters of empirically verifiable fact. Insofar as the motives for that behavior are taken to arise out of generic conditions of human being, out of anger, jealousy, desire, need, greed, they must, logically, override Culture—and, by extension, the relevance of culturally specific imperatives. As it turns out, a principled distinction between crime and culture is often hard to sustain, particularly in the remote reaches of the country, where the compelling force of custom is most keenly felt and where the presence of the state is stretched thin. It is not merely that, to paraphrase Pierre Bourdieu (1977:2), some distance always exists between the official road maps of ‘‘objective’’ law and the lived pathways of practice. Rather, a historical shift appears to be occurring: a shift arising out of the growing impact of a policulturalism that contests any hint of the criminalization of culture. To make sense of this shift, let us take a step backward to move forward. Note the following case, heard in the Venda Supreme Court in the late apartheid years.13 One Naledzani Netshiavha, a 25-year-old man, had killed his neighbor Gumani with an axe. Netshiavha pleaded guilty to culpable homicide and provided a statement through his council: I plead not guilty to murder.14 I deny that I intentionally caused the death of Gumani. I plead guilty to culpable homicide in that I unlawfully and negligently caused [his] death. I had mistaken [him for] a bat and only later realised that I had struck a human being. The reasonable man would have foreseen that it was a human being and would not have killed [him]. I did not comply with the standard of the reasonable man, thus I accept [that I acted negligently]. Netshiavha added that he had always been on good terms with Gumani and had not wished him dead. But he had been very ‘‘frightened by what had been happening.’’ The bench, represented by one Judge Klopper, evinced no interest whatever in what might have prompted a man of indisputable sanity to confuse his neighbor with a bat. The question of belief or cultural motivation was never addressed. Klopper concluded that Netshiavha had indeed intended to kill and, seeing nothing to mitigate the crime, found him guilty of murder.

193


n


We shall return to this case. The judgment was later reversed. But mark here the invocation of the ‘‘reasonable man.’’ A concept with a venerable history alike in Roman – Dutch law, in the South African courts, and in legal anthropology, it has loomed large in analytic discussions of comparative rationality; also in efforts to equate other ontologies with Western jural reason in evaluating intent and culpability across cultural divides (Gluckman 1965, 1967; cf. Wilson 1970). Interestingly, it is enjoying a new lease of life—both in jurisprudence and in popular discourse—as the laws of the land try to make peace with pluralism. Its invocation by Netshiavha recalls a precedent, an appeal heard in the Umtata Circuit Court in 1933. That case, for reasons to be revealed in due course, has become something of a cause ce`le´bre. In that instance, too, the defense had argued that a killing was not murder but culpable homicide, again on the ground that it had been committed in the ‘‘mistaken’’ belief that ‘‘a human being was an evil spirit.’’15 The accused, Mbombela, had put a child to death on the assumption that it was a tikolosh, a witch familiar. In the original hearing, the judge had directed the jury to consider whether this ‘‘was a reasonable belief.’’ The standard to apply, he said, was not that of an ‘‘18-year-old native living . . . in his kraal,’’ but that of ‘‘any reasonable person of his age.’’ Not surprisingly, the plea of culpable homicide was dismissed. Found guilty of murder, Mbombela was sentenced to death. In the appeal, the presiding judge, Judge De Villiers, noted that there was no suggestion that Mbombela was of unsound mind. Under Roman – Dutch law, as a result, he could only be excused by mistake of fact if that mistake was rooted in a bona fide belief—and a ‘‘reasonable’’ one. De Villiers went on to say that ‘‘by the law of this country there is only one standard of reasonable man.’’ If a special plea could be made for ‘‘a native aged 18 years and living. . .in his kraal,’’ it would follow that ‘‘in each and every case the standard would have to be varied so as to suit the. . .accused,’’ his ‘‘mental and moral and temperamental and racial idiosyncrasies.’’ At the same time, he found it undeniable that Mbombela actually believed that he was killing an evil spirit. On that ground, the judge reduced the conviction to culpable homicide and commuted the death sentence, quite dramatically, to 12 months in prison. Here is an instance of what was to become a common strategy for reconciling legal universalism with cultural difference: the law saying one thing and doing another, muting its own convictions by commuting its sentences. We shall return to this strategy as well. Let us merely underscore here the fact that, as the Mbombela case makes plain, for a killing to be exonerated, the killer had either to be ‘‘insane’’ or ‘‘mistaken.’’ If the latter, the mistake had to be based on a demonstrably rational belief.

194

The tautology is obvious. It reduces African cultural reason to a cosmic error. Alibis for unreason: Culture as madness Although Mbombela and Netshiavha were tried over half a century apart, little difference is to be discerned between the ways in which the respective judges translated acts and facts deeply rooted in culture into the conceptual terms of the criminal law. Legal formality continues to demand that, when matters arising out of cultural alterity come to court, they be distilled into conventional judicial categories—murder, assault, and the like—and be evaluated according to ‘‘one standard’’ of individual responsibility. And, yet, the pressure is growing, in the policultural world of the postcolony, to recognize that collective beliefs and practices have consequences for criminal justice. In recent times, South African courts have begun to concern themselves more frequently, and explicitly, with cultural conviction—and, if we may be permitted the pun, with cultural convictions. The problem they face is how, precisely, those convictions are to be dealt with under the still hegemonic terms of Euromodernist legal rationality. One solution has been to allow that culture, rather than being treated as mistaken belief, be regarded as a legitimate mitigation of crime. It also has unexpected implications. Consider, in this regard, a fairly typical case of its kind, from the High Court at Mmabatho, in the North West Province. Heard in 1995, it involved five young men accused of murdering Motlhabane Makolomakwa, the most prominent resident of Matlonyane village (Molomo 1995a, 1995b, 1995c).16 Insisting that he had killed their fathers and turned them into zombies, the youths burned their victim to death (cf. Comaroff and Comaroff 1999). The judge in the case did not hesitate to convict them of murder; each was ordered to serve 20 years. But he allowed two mitigating factors. One was ‘‘a belief in witchcraft,’’ the other that, ‘‘on the day in question the [defendants] had also drunk liquor.’’ Here, then, culture is addressed directly. But it is treated as a source of diminished responsibility, of a temporary loss of reason, on a par with intoxication. This decision echoes popular perceptions of the effects of witchcraft on those who kill under its influence: Jailed murderer Anderson Tshibalo, for example, told a national TV audience in 1997 that those overcome by witches ‘‘lose consciousness’’ of their deeds (Common Ground and Ubuntu TV and Film 1997). The invocation of cultural beliefs in mitigation by South African courts remains uneven, however, sometimes resting on quite capricious assessments of the ‘‘sincerity’’ of those beliefs. This is particularly ironic because it is the alleged caprice of Culture, its irrationality, that is often used to justify the uncompromising application of universal legal reason—and to argue against any recognition of moral


relativism. Indeed, the equation of Culture with unreason, coupled with judicial efforts to establish the sincerity of belief, can produce some odd effects. Thus, an official of the Mpumalanga provincial government, charged with theft in 1998, pleaded that he had been bewitched to commit the crime. He was found guilty. Why? Because, said the magistrate, psychological testing had proven him ‘‘sane and aware of the consequences of his actions’’ (Samayende 1998:2). In other words, the defendant’s claim to have been the victim of occult influence was a sham. Only if it could be scientifically established that he had been honest in that belief, that he had been unaware of the effects of his actions—and was, therefore, insane— could his behavior be explained by (un)reason of his cultural convictions. Which, at a stroke, were translated, by the language of the law, into a form of madness.17 These strategies, we stress, are all contingent ways of reconciling the law of the land with the policulturalism of the postcolony, a postcolony whose liberal Constitution presumes the juridical indivisibility of the nation-state and, yet, treats cultural difference as a matter of right. However well-intended they may be, they are notably unsystematic, sometimes incoherent. But they are not the only solutions to the problem of Culture discernible across the broad terrain of a criminal justice system whose own social geography is expanding in direct ratio to the recruitment of black legal functionaries. Other, more substantive efforts to deal with the problem are taking root elsewhere, often unnoticed—and in terms that, although framed in the hegemonic language of the law, strive to remap its lived semantics.

Midpoints and mediations The law is no good. The courts don’t believe in witchcraft.. . .They should bring a proven witch into the courtroom. That would convince them. —Inspector Jackson Gopane, 1997 An early foreshadowing of these efforts is found in a case of which we spoke earlier, the case of the man who mistook his neighbor for a bat. In 1990, over two years after he was convicted, Netshiavha was given leave to appeal.18 His wife, the first to testify, told how, on the night in question, she had heard a scratching sound and had seen a bat hanging from the rafters. Her husband—who, she stressed, had harbored no ill feelings for Gumani, the deceased— went to fetch an axe. One of Netshiavha’s brothers then told the court how Netshiavha had left the house and ‘‘chopped a creature that resembled a bat.’’ Later, the two men had seen an unknown beast crossing a fence nearby. Netshiavha had followed it and hit it with the same axe. Another sibling added that, en route home that night, he had seen ‘‘strange animals.’’ Reaching the village, he

n


found his two brothers standing next to a body: It was a small boy with the face of a man. The third brother went to call the headman. By the time the two men came back, however, the corpse had turned itself into that of the victim. The next day, the police found Gumani’s clothes and money neatly wrapped and covered by a stone, sure signs of witchcraft. They also discovered the remains of two wild animals, apparently killed by a car on the road. In addressing the court, defense counsel noted the difficulty of weighing evidence in cases involving the occult. He stressed the absence of a motive for the murder. Presiding judge Richard Goldstone, now a constitutional court justice, concluded: Objectively speaking, the reasonable man postulated in our law does not believe in witchcraft. However, a subjective belief in witchcraft may . . . have a material bearing upon the accused’s blameworthiness. . . . As such it may be a relevant mitigating factor.. . .In my opinion. . .it offers the only explanation for the [killing].19 Goldstone insisted that Netshiavha had been negligent in wielding an axe against a man who had not threatened him. But he commuted the sentence to four years: in effect, to time served. In recalling the case, Justice Goldstone said to us, ‘‘I let him go.’’ The fact that this case was revisited, and the manner of its hearing, pointed toward a growing recognition of the gravitas of difference in South Africa at the dawn of the postcolonial age. In the appeal, a much wider range of contextual evidence was allowed to establish a meaningful frame within which the rationality of Netshiavha’s actions might be read. True, judgment stopped short of permitting Culture, as a collectively inhabited reality, to inflect the notion of the reasonable in law; being a matter of ‘‘subjective’’ belief, it did not remove culpability. But the court’s decision suggested a new seriousness in addressing the relationship of ‘‘African custom,’’ however ill understood, to criminal justice. That this judgment foreshadowed the spirit of the New Age is born out in another medium: popular cinema. Late in the 1990s, a South African lawyer – filmmaker, Gavin Hood, made a movie entitled—overdeterminedly, given what we have said—A Reasonable Man (1999). Hood, in fact, retrieved the record of the Mbombela case and updated it to explore the continuing ironies of crime, culture, and legal reason in the ‘‘new’’ South Africa. He himself plays a young advocate, a veteran of the apartheidera war in Angola, who happens on a homicide in Kwazulu. A 17 year old has killed a neighbor’s infant son, whom he took to be a tikolosh—recall, a fearsome witch familiar— moving under a blanket in the dark. As the case unfolds, Hood’s character is drawn into defending the fictional Mbombela. He is motivated by a parallel between the

195


n


young man’s act of violence and a guilty secret of his own: Under fire during a raid over the border some years earlier, he, too, had killed a child, misrecognizing its presence behind a door for that of a dangerous enemy. Ultimately, this device undermines the argument of the movie, for it shifts attention from the relativism of the ‘‘reasonable man’’ to the exoneration of the ‘‘reasonable mistake,’’ implying that the homicide was as much a justifiable error as it was a consequence of a compelling, culturally validated reality—the tikolosh. Still, the film goes to great lengths to establish that ontological difference is an ineffable fact of life in the postcolony. As the drama plays itself out, the liberal lawyer is sucked into the Zulu occult, culminating in a surreal encounter with a sangoma, a traditional healer, who exorcizes his own repressed demons and forces him to realize that her beliefs are as capable as any other of producing compelling truths, of redressing deadly conflict, of dealing with disorder. Thus enlightened, he throws himself into an impassioned defense of his client before the judge, an upright embodiment of the ancien re`gime. On the epic terrain of South African history, he pleads, European ‘‘civilization’’ has been every bit as capable of giving rise to misdeed, even atrocity, as has African culture. Or, indeed, any culture. At least the would-be tikolosh-killer sought to protect his kith and kin. The voice of the law seems unwilling to acknowledge comparative rationalities, however: Even if the beliefs of the accused were not unreasonable in their own context, his action indisputably was. To second-guess universal reason is to invite an infinite regress into chaos. In the end, the movie, like its protagonist, is undone by this liberal paradox. It fails to make the case that difference is less random disorder than ordered variation, that all systems of reason are bound by cultural and historical particularity. Instead, filmic fiction follows factual precedent, settling for a solution of the sort the viewer has already come to expect. The law repudiates culture by adjudging Mbombela guilty, but takes it centrally into account in handing down an almost exonerating sentence. By this means—by allowing judgment to ignore difference but justice to be determined by it—the two sides of the equation are, if not finally resolved, then at least reconciled. Intriguingly, a similar solution motivates an episode of the multilingual TV series Justice for All, broadcast on SABC in 2000, which deals with a witch killing in one of the northerly provinces. In this episode, a clear tension is portrayed between cultural justice and criminal justice. By one hand, the killer is treated by his community as a local hero, a perpetrator of cultural justice in the fight against evil; on the other hand, the criminal justice system handles the case as yet another superstition-driven homicide. Unable to dissolve the antinomy, the court, cutting traditional beliefs no slack, convicts the accused and then, in

196

the name of those very beliefs, suspends his sentence entirely. As he walks free, his kin and neighbors celebrate the result as a vindication of the force of custom. Both in Goldstone’s Netshiavha decision and in media representations of postcolonial law, then, are harbingers of a resolution to the problem of culture in the ‘‘new’’ South Africa, albeit one that, in principle, leaves intact the antinomy between legal reason and relativist heterodoxy, crime and custom. But how far does the separation of judgment from justice really take us? Are there other ways of opening up a dialogue between liberal universalism and the dictates of difference?

Through the looking glass, again Let us pursue the question in another setting, a magistracy in the Tswana-speaking North West, where the law, ever more under African supervision, comes into daily contact with the pressing demands of Culture. In that setting, at the nether end of governance, legal code and local custom act on each other in supple, surprising ways. Just how supple is exemplified by a case that deals differently with the same issues encountered above: dangerous practices, occult beliefs, and reasonable conduct. We have seen that witch-killers may be tried in courts of law. Witches, however, are notoriously hard to indict under the provisions of Western jurisprudence; to wit, enlightenment reason denies the very existence of their arcane powers. It is still illegal, in South Africa, to accuse a person of witchcraft, even though most citizens actively believe in it; new legislation, currently under discussion, appears unlikely to accord the reality of its occult aspect any greater recognition than it now enjoys. That is why litigation arising out of magical malevolence has been so rare in the past; why, when it occurs, it is typically framed in terms that conceal its enchanted content; why, also, it is in witchcraft cases that the problem of Culture for liberal modernism is most acutely posed. There is, as we said earlier, a widespread perception that the postapartheid state has failed to protect its subjects from the scourge of mystical evil. Nor is the perception new: Colonial authorities also refused to accept the magical as a material fact and insisted on criminalizing witchfinding, leaving African peoples feeling defenseless—and convinced that the Europeans were abetting the malevolent forces in their midst (Fields 1985).20 Many South Africans maintain that the Witchcraft Suppression Act of 1957 served to drive ritual malpractice underground (cf. Commission on Gender Equality 1999:22).21 Unsurprisingly, therefore, the advent of the postcolony, in the early 1990s, saw the rise of assertive efforts on the part of local communities to rid themselves of an alleged upsurge of witchcraft, an ‘‘epidemic’’ that the ANC regime was no more capable of containing than had been its colonial


predecessor. Precisely because they continue to confound secular reason and the legal capacities of the state, conflicts arising out of the African occult provide glimpses of the ways in which Euromodernist and Afromodernist sensibilities have perforce to reconfigure the ground on which they confront each other. The conflict with which we are concerned here came to the Lehurutse magistrate in May 2000 on appeal from the chief’s court at Dinokana.22 It involved a healer, witchcraft, adultery, and attempted murder, although, in the end, the matter was not defined in any of these terms. The magistrate, Noah Makabanyane, thought for some time about how to define the dispute, opting finally for breach of contract and electing to sit with two assessors famed for their knowledge of Tswana custom. The applicant in the case, Koketso Mogorosi, was a nursery schoolteacher of limited means. The defendant, Jameson Ntebalang, was a traditional doctor, well known in Lehurutse for his mystical powers. Mogorosi testified that the dispute had begun in March 1997, when she had reason to engage a healer. Ntebalang had been introduced to her as a bona fide specialist, and, although he did not examine her, he asked about her ‘‘troubles’’ (ditlale`lo`; also distress, anxieties); she was in a me´nage a` trois with a local headman and his spouse and needed the healer’s assistance ‘‘to drive away’’ the other woman. Ntebalang told her that he would go to Botswana to procure the necessary medicine. According to Mogorosi, Ntebalang duly gave her two packets of ‘‘herbs’’ at the cost of R470.23 She withdrew all of her savings from the bank, some R400, to pay him, although the medicine, she said, lasted only two days. The healer then requested the rest of his fee and a further R1,500, the price of a beast, for the man who had actually ‘‘dug’’ the herbs. Mogorosi protested that she had yet to see results, but Ntebalang disagreed: She had, he insisted, ‘‘got her man.’’ She had not, though. Her rival remained living in the headman’s homestead. Further treatments of various kinds had proved equally fruitless. But the healer nevertheless pressed Mogorosi for his fee. When she flatly denied any obligation to pay, Ntebalang took his case to the local headman, who found against him.24 Undaunted, he appealed to the chief at Dinokana, who ruled in his favor, ordering Mogorosi to pay a fine of R200 and the outstanding R1,500. It was this judgment that Mogorosi was contesting in Makabanyane’s court. Ntebalang was then permitted to cross-question Mogorosi, a Tswana jural practice not usual in South African magistrate’s courts. The healer advanced a very different story. Had Mogorosi not asked him for medicine to ‘‘deal’’ with—that is, kill—the legal wife of her lover? Had he, Ntebalang, not responded that he did not have ‘‘that sort of medicine’’ but could procure it in Botswana at a price to which she had agreed? Mogorosi denied this.

n


The two assessors then questioned her further: Was it not wrong to pay the healer without witnesses and to engage in such a transaction without her parents’ knowledge? Had Ntebalang really not examined her? On what grounds was he demanding R1,500? The magistrate then intervened: Was Mogorosi still involved with the headman? No, she replied. He had since made off with her own daughter. For his part, Ntebalang reiterated that Mogorosi had approached him to dispose of her lover’s wife; he had responded by telling her that treatment of this kind was costly. She had agreed to a fee, to be paid once the medicine had done its job. Not long after, when Ntebalang saw her in the village with a bandaged finger, Mogorosi told him that she had come to blows with her rival at a social gathering. This altercation, said the healer, was a sure ‘‘sign that the dipheko (medicine) was working.’’ And so he had set about trying to collect his due. She, however, claimed that, because she was no longer living with her ‘‘boyfriend,’’ the headman, there was no debt to pay. Ntebelang disagreed, at which point he took his case to the traditional authorities. Mogorosi then cross-questioned Ntebalang: If he really was a traditional doctor, why had he not examined her by means of divining bones? Why had he used his medicines against her, afflicting her rather than her enemy? One assessor then tried to gauge the extent of his professional competence; the other inquired whether Ntebalang was actually claiming money for ‘‘chasing a married woman from her home.’’25 Was this sort of activity acceptable to the ‘‘Dingaka Association,’’ the national guild that claims to regulate traditional healing in South Africa? Ntebalang said that he thought that it was. At that point the case was adjourned. When it resumed, months later, Ntebalang was accompanied by a witness, his wife. She supported his version of events, elaborating on one point only. When Mogorosi had made her lethal request, the healer had warned her that it was ‘‘painful’’ to put a person to death; ‘‘painful,’’ here, implied both moral and physical distress, distress to both victim and perpetrator. Ntebalang had recommended a less drastic potion, one that would simply destroy all affection between the headman and his wife. Both parties had agreed to this, the witness insisted, her testimony being designed to counter the implication that her husband was guilty of witchcraft at its most lethal. But the assessors challenged her evidence. Their final questions were telling: ‘‘If a traditional doctor causes a person to flee from home, is that witchcraft or healing?’’ one asked. ‘‘It is witchcraft,’’ answered the wife. ‘‘Should a witch be paid for his actions?’’ ‘‘No,’’ she said, ‘‘but the medicines must still be paid for.’’ In light of the lateness of the hour, the case was adjourned until February 4, 2001, but the defendant was

197


n


unable to attend court that day. The proceeding was thus remanded for a further five months. As the due date approached, Magistrate Makabanyane told us that Ntebalang was in prison for petty theft. It looked like Mogorosi’s appeal might be postponed indefinitely. The court recorder, a middle-aged woman, agreed that the case might never reach conclusion, albeit for different reasons than those offered by the magistrate. Whatever the assessors might have implied, she said, Ntebalang was a potent practitioner. Among his powers was an uncanny capacity to elude detection and to escape custody. Once, when apprehended during the 1980s, he simply disappeared from his cell during a lunch recess. Someone later suggested to us that he might, on that occasion, have turned himself into a bat. In another celebrated instance, as Ntebalang was being chased for house-breaking, he is said to have transformed himself into an anthill. A policeman, the story goes, actually leaned on him—or, rather, on the anthill—without realizing what, or who, he was up against. We did not think it appropriate to ask why, with these talents, the healer had been unable to extract his money from Koketso Mogorosi. For his part, the magistrate was less impressed by the defendant, whom he referred to, with legal precision, as a ‘‘so-called ngaka (healer).’’ Noah Makabanyane, chief magistrate of Lehurutse, should know; he had himself grown up in the household of a particularly eminent traditional doctor.26 Although it ended inconclusively, this dispute opens up an unusual angle of vision onto the discursive place of the law in the postcolony. It also cuts a stunning swathe through the spare lives of people at the impoverished edges of the North West Province half a decade after the end of apartheid. Ostensibly about an unpaid debt, it embraced many things, all of them of great salience in rural communities: how women seek to sustain domestic relationships amidst economic uncertainty and moral flux; how the occult is mobilized to that end; how, in an era of rampant fraud, the bona fides of healers may be verified; how contracts are to be enforced; how fragile are the norms that govern interpersonal interactions under conditions of extreme scarcity; in short, how culture, in the vernacular sense of the term, is pondered and policed from the bottom up. We have noted that, under the prevailing act, itself a reformulation of British colonial law, practicing or accusing a person of witchcraft is illegal.27 We have also noted that new legislation is unlikely to grant the reality of the African occult, preferring to reduce it to a species of material practice—notably, to the use of indigenous pharmacopeia and, in particular, poisons—thus to displace a critical problem of Culture into the simple empiricism of criminal forensics (Commission on Gender Equality 1999:22).28 Meanwhile, as Mogorosi v. Ntebalang shows, the ways and means of the arcane arts, in all their cultural

198

clothing, are openly entertained in African magistrate’s courts; vide how, in this case, the knowledge and skills of a healer were put to the test by expert assessors. There was never any hint that their interrogation would not be part of the official proceedings. Neither the legal status nor the facticity of witchcraft was on trial here. On the contrary, they underpinned the judicial process. Magistrate Makabanyane told us that, like several other colleagues, he was planning to include a traditional doctor as a permanent assessor on his bench.29 Here, then, in a remote court run by a Tswana magistrate, is an instance in which citizens of ‘‘postcolonial’’ South Africa confront the contradiction between law and Culture and, in the most mundane, most unobtrusive of terms, chart a new dialogue. Here contemporary African concerns are addressed without offending Euromodern legal reason, without taking even the shortest step down the slippery slope of eth(n)ical relativism into a Hobbesian world of moral chaos. There is, it seems, something beyond Leviathan. What we have seen through the window of an unassuming public building in Lehurutse may be peripheral. But it tells us something important about the present and future of the question of heterodoxy in South Africa. About the manner in which Afromodernity—a labile, more or less self-conscious ensemble of signs and practices, dispositions and discourses, theories and forms of knowledge, with reference to which a specifically African sense of the contemporary is being fashioned—is assuming its place in a world of liberal modernities.30 About Culture less as heritage or commodity, less as a sign of racial marking or an alibi for difference than as the description of a more or less open repertoire of styles, a mode of conduct, a set of pragmatic values always under (re)construction. About culture less as a proper noun, that is, than as an adjective: a thoroughgoing qualification to everyday life in the postcolony.

Conclusions, of various kinds We offer three observations about the ways in which matters cultural entered the realm of legal reason in Noah Makabanyane’s court. The first, to which we have already alluded, concerns the framing of the case. Although patently about witchcraft—about a criminal conspiracy to attempt murder by arcane means—the suit was phrased as a breach of contract, with reference not to the legalities of Ntebalang’s occult activities per se but to their implications for the social and material relations in dispute. In this way, a ‘‘dangerous,’’ exotic cultural practice was treated as neither dangerous nor exotic. Rather, it was made justiciable—although, by the letter of the law, it should not have been. Of course, the evidence in the record could,


technically, have been used to indict the healer for his mystical machinations and Mogorosi for conspiring in them. But, even if the state had wanted to prosecute them, it would have been very difficult: Apart from anything else, nobody could be shown, forensically, to have suffered from their conspiracy. In instances of alleged occult practice, after all, it is usually impossible to establish a direct link between cause and effect—which is what makes it occult in the first place. Second, the Lehurutse tribunal refused to regard the African occult as a question of belief. It assumed, as do all Tswana, that witchcraft (boloi) belongs to the domain of cultural knowledge and everyday conduct. But there is a critical qualification here, one that recalls what we said earlier of culture, sui generis, in the lower case: Setswana, the local version of things African, has always been a labile, growing, more or less open ensemble of ways and means (see, e.g., Comaroff and Comaroff 1991), one that, in its encounters with other worlds, has absorbed and experimented with, transformed and appropriated foreign practices—including, significantly, aspects of European jurisprudence (Schapera 1943), democracy, and other elements of modernity; in this respect, African customary law, which has long been responsive to historical conditions (Roberts and Comaroff 1977; Schapera 1970b), is much more like the common law in Europe than the dehistoricized, timeless chimera made of it under colonialism (see, e.g., Moore 1986). The fact that Makabanyane’s court treated this case as arising out of a collective lifeworld had a number of corollaries. Above all, it removed the need to evaluate the sincerity of the parties involved. Once cultural usages and expectations are no longer seen as a matter of personal persuasion, once they are taken to be the context-sensitive frame in which humans live out their lives, they become, by extension, the salient terms in which disputed behavior is assessed. Moral relativism, under these conditions, gives way to social contextualization: Actions are judged by virtue of standards—Afromodern standards being wrought, in the pragmatics of the present, out of Setswana, the common law, the new constitution, and whatever else comes to hand—deemed normatively apposite to the circumstances of the conflict. It is such norms, not abstract canons of universal reason, that are the measure by which the court decides culpability. Thus, although Makabanyane acknowledged the power of traditional healing, understood why Mogorosi might have gone to a specialist for help, and appreciated the customary calculations that infuse the kind of agreement in question here, he did not exempt Ntebalang from legal or ethical evaluation. Law and Culture, in other words, did not require reconciliation because no antinomy between them was recognized to begin with. In the end, of course, Mogorosi won a victory of sorts: Her appeal might not have been resolved, but, for practical purposes, Ntebalang’s

n


disappearance voided her debt to him—and, with it, the finding of the chiefly court. The third point is procedural but crucial. It moves us back, from Lehurutse and postcolonial South Africa, to the generic question of law, culture, and difference. Ntebalang v. Mogorosi, observe, was tried not as a criminal matter but as a civil suit, one arising not out of a conspiracy to commit murder, out of a fraud, or out of any other kind of felony, but out of breach of contract. This is in line with much ‘‘traditional’’ African jurisprudence, which makes no distinction between the criminal and the civil; it also resonates with a global explosion in the resort to tort law to settle scores that elude conventional political and legal mechanisms. Because the case was handled thus, it escaped the purview of the Witchcraft Suppression Act, indeed the criminal law tout court. Civil actions require different standards of evidence everywhere: They are less concerned with forensics than with circumstantial evidence that is socially and culturally sensitive to the context out of which the dispute arose. As a result, questions of abstract reason and legal principle are rendered secondary, and more flexible procedures may be followed. Remember how Noah Makabanyane allowed the litigants to cross-question each other and encouraged ritual experts to interrogate both of them, all of which interpolated vernacular judicial routines into the formal workings of the justice system. The general point is clear. Once criminal cases are transposed into civil ones— once criminal justice becomes cultural justice—beliefs like witchcraft may be treated as a matter-of-fact reality. In sum, what we have witnessed here, in Noah Makabanyane’s court, is a practical philosophy under construction (cf. Evans-Pritchard 1937). Thus it is that ‘‘dangerous’’ practices are made more tractable to legal reason. Thus it is that the conundrum of heterodoxy may be confronted. Thus it is that, largely unremarked, an organic African jurisprudence comes to infuse the ‘‘One Law for One Nation.’’ Thus it is that the distinction between Euromodernity and Afromodernity is renegotiated, the content of each redrawn. Thus it is that colonialism gives way to postcoloniality. How common are the processes we have described? Hard to say. But the signs, many of them, are readily evident in the courts of the North West. Clearly, as we have said, greater leeway for experiment exists in more remote institutional contexts and in situations perceived to pose little threat to public order. Homicide, for example, is an altogether different, more difficult species of problem, although, as the two O. J. Simpson trials demonstrated in the United States, in cases of violent felonies civil proceedings may yield judgments that are more socially acceptable, and credible, than those of the criminal justice system.31 It is also a matter of record that there have been campaigns—among them, one in the Netherlands

199


n


in the 1980s—advocating the radical reduction of criminal (in favor of civil) justice, even in the instance of murder. Similarly, in banning capital punishment, the South African constitutional court invoked, as one of its justifications, ubuntu, the principle of African humanity, thereby interpellating into the law of the land a fundamental sociomoral tenet of Afromodernity. But, more important here, it is not spectacular felonies that make up the vast bulk of journeyman jurisprudence, day in and day out, over the length and breadth of the country. It is the most mundane of misdeeds and misdemeanors. The very kinds of thing that brought Ntebalang and Mogorosi before magistrate Noah Makabanyane. It is not only in the legal domain that the ways and means of an Afromodernity are being actively forged. Parallel processes are occurring in the spheres of religion, education, business, the media, the expressive arts, and elsewhere. But the challenge of policulturalism to Euromodernity is most acutely felt in the realm of the juridical—precisely because liberal democracy and, with it, the hyphenated scaffolding of the postcolonial nation-state are so deeply inscribed in the sovereignty of its one law. This is all the more so in neoliberal times: times in which the promise of constitutional empowerment, of liberation, meets the privations of a deregulated economy; times that are not just postcolonial but postproletarian; times marked by a growing inequality of means; times in which the appeal to Culture, as a primordially ordained ‘‘natural’’ right, has become part of the quotidian language of entitlement; times in which ideology gives way, in quickly measured steps, to ID-ology. In these times, a politics is emerging that, for reasons we have spelled out, turns autonomically to the law to redress social disarray, moral decay, and material deficit. That this politics fails to engage the architecture of the new capitalism in South Africa, that it merely skates its surfaces, is a constant, serious plaint of social critics; turning class actions into class action, or into any other kind of cogent collective dissent, appears as an anachronism. But the mutating landscape of the law—or, more precisely, the metamorphosis of politics into law—is changing the terms in which postcolonial realities are experienced, understood, and negotiated. What we have narrated, then, is a dialectic-in-motion, a historical process that pivots on the horns of a contradiction. Dating back to the dawn of colonialism, when the earliest evangelists of Euromodernist enlightenment sought to rule peoples they defined as parochial and culturally Other, this contradiction is reproduced in especially acute form in neoliberal polities. As we have said, there is no resolution to the antinomy between the ‘‘One Law for One Nation,’’ with its unremitting commitment to legal universalism under the new South African Constitution, and the primordially sanctioned demands of hetero-

200

doxy in this policultural society. Progressive philosophers and jurists may wish there were a resolution; some have written programmatic blueprints for plural democracies, appealing to concepts like multiculturalism, hybridity, and syncretism in pursuit of a vision that, so long as it seeks to encompass diversity within the hegemony of a Eurocentric liberalism, must remain entrapped in its own paradoxical formulation (Comaroff and Comaroff n.d.). But, as long as the bill of rights and the precepts of custom diverge, as long as the former is given priority over the latter, until one relinquishes sovereign authority to the other—which is highly unlikely, given the political demography of difference in South Africa—the contradiction will not, cannot, go away. Nonetheless, as the Lehurutse case indicates, those who toil within that contradiction, those who have perforce to produce a practical jurisprudence at the impasse between Law and Culture, find contingent means of doing so, means that often go beyond both the law of the land and the kingdom of culture. In this, they resort less to ‘‘hybrids’’ or ‘‘syncretisms’’ than to a living, growing vernacular modernity. This Afromodernity is being fashioned out of constituent elements taken from a wide variety of (re)sources. It is the voraciously creative process out of which the postcolony is being made. In seeding itself on ground long monopolized by Euromodernity, the Afromodern gives play to a pragmatics of difference in ways that challenge the limits of liberalism as never before. From the bottom up. Thus are humble new beginnings, new imaginaries, being forged in those undersides, those margins, of the ‘‘new’’ South Africa that most of its citizens call home.

Postscript In December 2002, Limpopo Province police announced that they were to indict a healer for performing a ‘‘magic ritual’’ on two murder suspects: He had allegedly smeared them with goat’s blood to make them invisible to officers of the law (Hlatshwayo 2002). What the healer had done, the cops said, was no different, legally, from harboring a fugitive. Optimistic that they would win a conviction, they insisted that the act of abetting a felony, even if by witchcraft, is itself always a crime of commission. Note here, one last time, how protean in practice is the distinction between Culture and Criminality. By these lights, Ntebalang would probably have been charged with conspiracy to commit a homicide and found guilty. The public prosecutor in the Limpopo incident, Jan Henning, was less sanguine about the ease with which matters magical reduce to criminal forensics: ‘‘It is going to be very interesting. . .to see how the courts handle evidence on whether ritual to make the boys invisible was effective. It could turn out to be a very difficult case’’ (Hlatshwayo 2002: 1).


Notes Acknowledgments. This essay began life as one in our series of seven Jensen Lectures at the University of Frankfurt in May – July 2001; we should like to thank our hosts there, in particular Professor Karl-Heinz Kohl, Director of the Frobenius Institute, under whose aegis the lectures were held. The research on which they were based—including 13 months of ethnographic work between June 1999 and September 2000 in the North West Province of South Africa—was generously supported by the American Bar Foundation and the Lichtstern Fund for Anthropological Research at the University of Chicago. Our warm appreciation is extended to both. Our research assistant, Maureen Anderson, has been a source of energetic and imaginative help in the production of this piece of work. 1. This policy is part of an official initiative, ‘‘Protect and Respect: Everybody Benefits.’’ Apparently a move is being considered to permit Rastafarian policemen to wear dreadlocks; Sikh male officers already wear turbans. For a report on and a photograph of the official Metropolitan Police hijab, see Hopkins 2001:9. 2. Elsewhere (e.g., Comaroff and Comaroff 1997) we have sought to problematize the concept of ‘‘tradition’’ and, by extension, of ‘‘traditional’’ authority; we deploy the term here strictly to refer to vernacular usage. ‘‘Traditional leadership’’ has become a generic label in South Africa for all forms of indigenous African rule. 3. The minister said this in an opening address to a conference on constitutionalism in Africa (see Nkutha 1999:2). 4. This section has appeared, in slightly amended and edited form, in two earlier essays on the postcolonial nation-state (Comaroff and Comaroff 2001, in press); each of the three versions complements and develops on the others. It is our intention to bring these three summary statements together in a fuller discussion of the topic in Policing the Postcolony (Comaroff and Comaroff n.d.), our current book in preparation. 5. By ID-ology we mean the quest for a collective good, and often goods, sanctioned by, and in the name of, a shared identity. We first came across the term in a South African newspaper report by Rapule Tabane and Ferial Haffajee (2003). It is used there to describe a depoliticizing kind of ‘‘mongrel politics’’ in which party platforms converge, in which charismatics crystallize their popularity into ‘‘customized political brands,’’ and in which differences are confined largely to the implementation of policy and the distribution of material advantage (cf. Comaroff and Comaroff 2000). 6. Note the plural: Like the nation-state sui generis, ‘‘the’’ postcolonial nation-state cannot, in our view, be treated as a singular article. It, too, is a diverse species of historical formation-underconstruction. 7. Much the same point was made just before the U.K. parliamentary elections of 2001: ‘‘With a basically pre-set macroeconomic framework, government becomes a matter. . .ultimately of microeconomic management. [Labour] is set to be elected as managers of Her Majesty’s Public Sector, plc.’’ (Islam 2001:3). 8. Note, in this respect, Philip McMichael’s suggestion that the ‘‘citizen state’’ has been replaced by the ‘‘consumer state’’ (1998:113). Also recall Susan Hegeman (1991:72), who, among others (e.g., Vanderbilt 1997:141), argues that identity has come to be defined by consumption, not merely by the consumption of objects but by the consumption of the past, as well. 9. The argument summarized in this paragraph was first developed, and is more extensively stated, in John L. Comaroff 1998; it is also to be found, in refined form, in Comaroff and Comaroff 2000.

n


10. The train is operated by Legal i, a Section 21 [i.e., a nonprofit] company with a board of directors representative of the law societies, the Black Lawyers Association, the National Association of Democratic Lawyers, and consumer agencies. 11. Such critics span the political spectrum from radical (e.g., Dirlik 1990) to conservative. One British critic puts it thus: ‘‘What we must have to live together in harmony is a tolerant, overarching common culture.’’ But the very idea of such a culture is ‘‘denounced by multiculturalists as supremacist and racist’’ (Marrin 2001:7). 12. Witchcraft—alike in everyday consciousness, popular culture, and government parlance—is a generic category in contemporary South Africa (cf. Ralushai et al. 1996). A mode of explaining unfortunate events as a consequence of human malevolence (Evans-Pritchard 1937), it uses the language of interpersonal relations to speak both of immediate and of large-scale conundrums, conflicts, and catastrophes. Witches take varied local forms that have long histories in Africa. But they are also sensitive registers of historical change and, as such, have been integral to vernacular efforts to interrogate the experience of modernity (Comaroff and Comaroff 1993; Fisiy and Geschiere 1991). Thus, for example, colonial innovations often sparked witch hunts; in like vein, the structural shifts that have come with postcoloniality, and with the global spread of neoliberal capitalism, have been accompanied by outbreaks of witch-related anxieties in many parts of the continent (Ashforth 2000; Auslander 1993; Bastian 1993; Geschiere 1997). This has been especially true of South Africa since the late 1980s. 13. See State v. Netshiavha, 1990 (2) SACR 331 (A), the record of the appeal (see below), to which an official account of the original case (heard in the late 1980s) is appended. This record was kindly obtained for us by Jobst Bodenstein of the Department of Law, University of the North West. 14. This plea was made in terms of section 258 (a) of the Criminal Procedure Act 51 of 1977. 15. Rex v. Mbombela, 1933, Umtata Circuit Local Division. We are grateful to Clem Druker, a prominent Cape Town lawyer, for locating the case record for us. Quotations from the original judgment and from the appeal, below in the text, are found on pp. 271 – 272 of that record; the italics are ours. 16. Our data on the case are based on interviews with the primary witness, Thaisi Medupe, with the Registrar of the High Court in Mmabatho, Reginald Mpame, with the headman of Matlonyane, Abraham Maeco, and with several close associates of the victim; on visits to the sites at which the events in question occurred; and on a search, assisted by Mpame, for the records of the case. 17. This line of reasoning, of course, follows an established colonial precedent, which drew on psychiatry to define dangerous (and often, subversive) African practices as madness (Sadowsky 1999). 18. See State v. Netshiavha, 1990 (2) SACR 331 (A). 19. See State v. Netshiavha, 1990 (2) SACR 331 (A). 20. It was not only colonial law that had difficulty in handling witchcraft. Indigenous African rulers sometimes did, too. Although Tswana regarded sorcery as a crime (Schapera 1970a), the line between divination and dispute settlement in dealing with accusations of mystical evil seems always to have been blurred. The occult, by its nature, tends to elude political authority and, in a number of African contexts (see, e.g., MacGaffey 1970), has served as a vehicle for the critique of power. 21. This view was expressed by several contributors to the SABC program Search for Common Ground broadcast in July 1997.

201


n


22. Case no. 5122 (4/98), in the Lehurutse Magistrate’s Court, North West Province. 23. At the time, $1=R6.80. R470 amounted to almost all of Koketso’s monthly income. 24. In refusing to pay, Mogorosi added, opaquely: ‘‘[My boyfriend] is staying with another wife. I did not want. . .my dipheko (medicines) to return and pay for themselves.’’ Perhaps she feared that those medicines, having a life of their own, might seek vengeance against her for her unpaid debt, especially because, by that time, their intended victim was out of the picture. This aspect of the record is not altogether clear. 25. A ye lejwa in Setswana. Also expressed as go pherentsa, the phrase implies ‘‘to banish to the wilderness, using dipheko, where nobody will know where you are’’ (Joe Leteane, personal communication August 18, 2000). 26. This man, Daniel Lecholo, had been traditional healer to Chief Kebalepile of the Barolong-boo-Ratshidi in Mafikeng in the 1960s. Makabanyane was Lecholo’s paternal grandnephew; when he came to Mafikeng from a rural area to attend school, he had lived in his uncle’s capacious homestead. During our first field research in the town, in 1969 – 70, we were accommodated in the same compound. 27. The act mandated that a sentence of 20 years in prison be handed down to anyone who, claiming a knowledge of the occult arts, caused another person to die, disappear, or suffer injury; one who ‘‘professes a knowledge of witchcraft or the use of charms. . .and supplies any person with any pretended means of witchcraft’’ is liable to up to five years. 28. Deliberations on the new act were first held in September 1998; a conference, convened in Pietersburg by the Commission for Gender Equality, followed in November 1999. This conference numbered among its participants academics (including some of the contributors to Ralushai et al. 1996 and one from Zimbabwe), legal functionaries, a representative from the South African Human Rights Commission, traditional authorities, expert healers, and victims and perpetrators of occult-related violence (Commission for Gender Equality 1999). The discussions centered on such things as the appropriateness of the term witchcraft in approaching occult-related matters, the role of expert testimony in establishing the presence or absence of magical practices, and suitable techniques of policing those practices; for one accessible, if incomplete, account, see Independent Newspaper Group 2000. Note, however, that a new law has not yet been promulgated—largely, we believe, because the contradictions endemic to doing so, the contradictions of which we speak here, remain intractable. We are grateful to JahsaRebecca Wiles both for making available to us copies of some of the documents discussed at the Pietersburg conference and for her account of the meeting. 29. See Geschiere n.d. for an assessment of the fractious consequences of doing just this in local Cameroonian courts. 30. Note, in this respect, that we do not see Afromodernity as an alternative to Euromodernity, not, at least, in the manner that so-called alternative modernities have been construed in anthropology of late. Far from being either a response to European modernity or a creature derived from it, Afromodernity is a complex formation being actively forged, in the ongoing present, from endogenous and exogenous elements of a variety of sorts (see below). 31. We have pointed out, in this respect, that, given their own testimony, Ntebalang and Mogorosi could have been charged with conspiracy to commit murder under the criminal law; they sought, after all, to end the life of another person. Because of the forms of injury and the disposition of relations

202

in the case, however, Magistrate Makabanyane chose to frame it as a civil proceeding.

References cited Anderson, Benedict 1983 Imagined Communities: Reflections on the Origin and Spread of Nationalism. London: Verso. Appadurai, Arjun 1990 Disjuncture and Difference in the Global Cultural Economy. Public Culture 2(1):1 – 24. Auslander, Mark 1993 ‘‘Open the Wombs!’’: The Symbolic Politics of Modern Ngoni Witchfinding. In Modernity and Its Malcontents: Ritual and Power in Postcolonial Africa. Jean Comaroff and John L. Comaroff, eds. Pp. 167 – 192. Chicago: University of Chicago Press. Ashforth, Adam 2000 Madumo: A Man Bewitched. Chicago: University of Chicago Press. Bastian, Misty 1993 ‘‘Bloodhounds Who Have No Friends’’: Witchcraft and Locality in the Nigerian Popular Press. In Modernity and Its Malcontents: Ritual and Power in Postcolonial Africa. Jean Comaroff and John L. Comaroff, eds. Pp. 129 – 166. Chicago: University of Chicago Press. Bourdieu, Pierre 1977 Outline of a Theory of Practice. Richard Nice, trans. Cambridge: Cambridge University Press. Chanock, Martin 2000 ‘‘Culture’’ and Human Rights: Orientalising, Occidentalising and Authenticity. In Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture. Mahmood Mamdani, ed. Pp. 15 – 36. New York: St. Martin’s Press. Comaroff, Jean, and John L. Comaroff 1991 Of Revelation and Revolution, vol. 1: Christianity, Colonialism, and Consciousness in South Africa. Chicago: University of Chicago Press. 1993 Introduction. In Modernity and Its Malcontents: Ritual and Power in Postcolonial Africa. Jean Comaroff and John L. Comaroff, eds. Pp. xi – xxxvii. Chicago: University of Chicago Press. 1999 Alien-Nation: Zombies, Immigrants, and Millennial Capitalism. Codesria Bulletin 3 – 4:17 – 28. (Also published 2002, Saurav Dube, ed. Special edition, ‘‘Enduring Enchantments,’’ the South Atlantic Quarterly 101(4):779 – 805.) 2000 Millennial Capitalism: First Thoughts on a Second Coming. Special issue, ‘‘Millennial Capitalism and the Culture of Neoliberalism,’’ Public Culture 12(2):291 – 343. 2001 Naturing the Nation: Aliens, Apocalypse and the Postcolonial State. Journal of Southern African Studies 27(3): 627 – 651. In press Reflections on Liberalism, Policulturalism, and IDology: Citizenship and Difference in South Africa. In Limits to Liberation: Culture, Citizenship and Governance after Apartheid. Steven Robins, ed. London: James Currey, and Cape Town: David Philip. N.d. Policing the Postcolony: Crime, the State, and the Metaphysics of Disorder in South Africa. Unpublished MS, Department of Anthropology, University of Chicago, and American Bar Foundation, Chicago. Comaroff, John L. 1996 Ethnicity, Nationalism, and the Politics of Difference in an Age of Revolution. In The Politics of Difference: Ethnic


Premises in a World of Power. Patrick MacAllister and Edwin Wilmsen, eds. Pp. 162 – 183. Chicago: University of Chicago Press. 1998 Reflections on the Colonial State, in South Africa and Elsewhere: Fragments, Factions, Facts, and Fictions. Social Identities 4(3):321 – 361. Comaroff, John L., and Jean Comaroff 1997 Postcolonial Politics and Discourses of Democracy in Southern Africa: An Anthropological Reflection on African Political Modernities. Journal of Anthropological Research 53 (2):123 – 146. 2002 Ethnicity, Incorporated: On the Commodification, Consumption, and Construction of Cultural Identity in the Neoliberal Age. Wissenschaft und Gessellschaft der Deutschen Bank AG, Lecture, Johann Wolfgang – Goethe University of Frankfurt, November 11. Commission on Gender Equality, Republic of South Africa 1999 Conference on Legislative Reform for Witchcraft Suppression Act No. 3 of 1957, Pietersburg, November 1999. Pretoria: Commission on Gender Equality. Common Ground Productions and Ubuntu TV and Film 1997 Africa: Search for Common Ground. South Africa Broadcasting Corporation, July 17. Coombe, Rosemary J. 1998 The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law. Durham, NC: Duke University Press. Corrigan, Philip, and Derek Sayer 1985 The Great Arch: English State Formation as Cultural Revolution. Oxford: Blackwell. Darian-Smith, Eve 1996 Postcolonialism: A Brief Introduction. Social and Legal Studies 5(3):291 – 299. Dirlik, Arif 1990 Culturalism as Hegemonic Ideology and Liberating Practice. In The Nature and Context of Minority Discourse. Abdul R. JanMohamed and David Lloyd, eds. Pp. 394 – 431. New York: Oxford University Press. 2000 Reversals, Ironies, Hegemonies: Notes on the Contemporary Historiography of Modern China. In History after the Three Worlds: Post-Eurocentric Historiographies. Arif Dirlik, Vinay Bahl, and Peter Gran, eds. Pp. 125 – 156. Lanham, MD: Rowman and Littlefield. Evans-Pritchard, Edward E. 1937 Witchcraft, Oracles and Magic among the Azande. Oxford: Clarendon Press. Fields, Karen E. 1985 Revival and Rebellion in Colonial Central Africa. Princeton: Princeton University Press. Fisiy, Cyprian F., and Peter Geschiere 1991 Sorcery, Witchcraft and Accumulation—Regional Variations in South and West Cameroon. Critique of Anthropology 11(3):251 – 278. Geschiere, Peter 1997 The Modernity of Witchcraft, Politics, and the Occult in Postcolonial Africa. Charlottesville: University Press of Virginia. N.d. Witchcraft and the Limits of the Law in Cameroon and South Africa. Paper presented at the Conference on Law and Disorder in the Postcolony, Radcliffe Institute for Advanced Study, Harvard University, May 8 – 10. Gluckman, Max 1965 The Ideas in Barotse Jurisprudence. New Haven, CT: Yale University Press.

n


1967 The Judicial Process among the Barotse. 2nd edition. Manchester: Manchester University Press for the Institute of Social Research. Halter, Marilyn 2000 Shopping for Identity: The Marketing of Ethnicity. New York: Schocken Books. Harvey, David 1990 The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change. Oxford: Blackwell. Hegeman, Susan 1991 Shopping for Identities: A Nation of Nations and the Weak Ethnicity of Objects. Public Culture 3(2):71 – 92. Hlatshwayo, Riot 2002 Nowhere to Hide for the Sangoma Who Can Make You Invisible. The Sunday Independent, December 22:1. Hood, Gavin, dir. 1999 A Reasonable Man. 103 min. Pandora Cinema. Paris. Hopkins, Nick 2001 Met Lets Muslim Policewomen to Don Headscarves. The Guardian, April 25:9. Independent Newspaper Group 2000 Witchcraft Law Up for Review. Independent Newspaper Group, February 11. Electronic document, www.iol.co.za/ index.php?set_id=1&click_id=13&art_id=qw9502849812 88B232, accessed August 10. Islam, Faisal 2001 What Ever Happened to Big Economies. The Observer (London), June 3:3 (business section). Jacobson, David 1996 Rights across Borders. Baltimore: Johns Hopkins University Press. Klor De Alva, J. Jorge 1995 The Postcolonization of the (Latin) American Experience: A Reconsideration of ‘‘Colonialism,’’ ‘‘Postcolonialism,’’ and ‘‘Mestizaje.’’ In After Colonialism: Imperial Histories and Postcolonial Displacements. Gyan Prakash, ed. Pp. 241 – 275. Princeton: Princeton University Press. Lazarus-Black, Mindie, and Susan F. Hirsch, eds. 1994 Contested States: Law, Hegemony, and Resistance. New York: Routledge. MacGaffey, Wyatt 1970 Custom and Government in the Lower Congo. Berkeley: University of California Press. Marrin, Minette 2001 View from the Right. The Guardian, May 29:7. Mbembe, Achille 1992 Provisional Notes on the Postcolony. Africa 62(1):3 – 37. McClintock, Anne 1992 The Angel of Progress: Pitfalls of the Term ‘‘PostColonialism.’’ Social Text 31 – 32:84 – 98. McMichael, Philip 1998 Development and Structural Adjustment. In Virtualism: A New Political Economy. James G. Carrier and Daniel Miller, eds. Pp. 95 – 116. Oxford: Berg. Mishra, Vijay, and Bob Hodge 1991 What is Post(-)colonialism? Textual Practice 5(3):399 – 414. Molomo, Nat 1995a Bizarre Zombie Claim in Court. The Mail, March 31:1. 1995b Petrol Murder Denied. The Mail, June 2:3. 1995c Five Men Jailed for 100 Years. The Mail, September 22:1. Moore, Sally Falk 1986 Social Facts and Fabrications: ‘‘Customary’’ Law on Kilimanjaro. Cambridge: Cambridge University Press. Nkutha, Zandile 1999 Revisit Cultural Values. Sowetan, November 17:2.

203


n


Oomen, Barbara 2002 Chiefs! Law, Power and Culture in Contemporary South Africa. Ph.D. dissertation, Van Vollenhoven Institute, University of Leiden. Prakash, Gyan 1995 Introduction: After Colonialism. In After Colonialism: Imperial Histories and Postcolonial Displacements. Gyan Prakash, ed. Pp. 3 – 17. Princeton: Princeton University Press. Ralushai, N. V., M. G. Masingi, D. M. M. Madiba, et al. 1996 Report of the Commission of Inquiry into Witchcraft Violence and Ritual Murders in the Northern Province of the Republic of South Africa (To: His Excellency the Honourable Member of the Executive Council for Safety and Security, Northern Province). N.p. Roberts, Simon A., and John L. Comaroff 1977 Marriage and Extra-Marital Sexuality: The Dialectics of Legal Change among the Kgatla. Journal of African Law 21(1): 97 – 123. Sadowsky, Jonathan H. 1999 Imperial Bedlam: Institutions of Madness in Colonial Southwest Nigeria. Berkeley: University of California Press. Salacuse, Jeswald W. 1991 Making Global Deals: Negotiating in the International Marketplace. Boston: Houghton Mifflin. Samayende, Sizwe 1998 Unit Orders ‘‘Bewitched Official’’ to Pay for Damages. Sunday Times, City Metro, August 9:2. Schapera, Isaac 1943 Tribal Legislation among the Tswana of the Bechuanaland Protectorate. Monographs in Social Anthropology, 9. London: London School of Economics. 1970a The Crime of Sorcery. Proceedings of the Royal Anthropological Institute 1969:15 – 23. 1970b Tribal Innovators: Tswana Chiefs and Social Change, 1795 – 1940. London School of Economics Monographs in Social Anthropology, 43. London: Athlone Press.

204

Shapiro, Martin 1993 The Globalization of Law. Indiana Journal of Global Legal Studies 1(fall):37 – 64. Tabane, Rapule, and Ferial Haffajee 2003 Ideology Is Dead, Long Live ID-ology. Mail and Guardian, June 27 – July 3:6. Taylor, Charles 1989 Sources of the Self: The Making of Modern Identity. Cambridge, MA: Harvard University Press. Vanderbilt, Tom 1997 The Advertised Life. In Commodify Your Dissent: Salvos from the Baffler. Thomas Frank and Matt Weiland, eds. Pp. 127 – 142. New York: W. W. Norton. Wilson, Bryan R. 1970 A Sociologist’s Introduction. In Rationality. Bryan R. Wilson, ed. Pp. vii – xviii. Oxford: Basil Blackwell. accepted September 29, 2003 final version submitted October 21, 2003 John L. Comaroff American Bar Foundation 750 N. Lakeshore Drive Chicago, IL 60611 Department of Anthropology University of Chicago 1126 East 59th Street Chicago, IL 60637 [email protected] Jean Comaroff Department of Anthropology University of Chicago 1126 East 59th Street Chicago, IL 60637 [email protected]