Thoughts of an African

A running commentary on the success and dysfunction on my continent...from the perspective of a young african intellectual...

[misslawyerlady]

What’s in a Name: Rhodes, Statues and Decolonization

A debate as old as the independence of most African countries- what do we do with the names of our oppressors?  The debate in South Africa has, however, intensified. Students at the University of Cape Town have taken a strong stance against the statue of Cecil John Rhodes standing on their campus.  This in turn put a spot light on Rhodes University and how it might be time to change its name.  At the moment, the focus is on race: how racist Cecil John Rhodes was, how the statue and the name of the university exclude certain races from the space that they occupy, #RhodesSoWhite, white privilege…and the list goes on.  The issue, however, goes much deeper than race.  

Should the legacy of racists and bigots be preserved in public institutions? After all, it is part of our history.  While I was a student at Rhodes, I didn’t want the name to be changed because I felt as though I needed the name “Rhodes University” on my parchment in order to be held in high esteem. I believed that having a parchment that said “The University of iRhini” would cheapen my credentials.  That’s the honest truth, and I’ve seen many black and white students express the same fears on social media.

I had this debate many times with peers in and outside of the lecture theater. As you walk down the corridors of the Law faculty, you are followed by the glares of Judges past.  Needless to say, with the exception of the most recent portraits, the rest are white.  I remember a casual discussion with some of my peers about how these men we see everyday were responsible for applying some of the most repugnant, racist laws of South Africa under apartheid. However, our debates seemed to end abruptly with comments such as “well you refer to some of their judgments in all your essays and exams anyway so why are you bothered by their portraits? They are part of our legal history and jurisprudence.” While the law relies on precedent and past jurisprudence, it is also malleable and dynamic. Conversely, names and symbols are designed to be more rigid for a reason.

First of all, one has to understand the historical significance of why settlers and colonialists renamed every part of the land they invaded.  Names create a reference point for memories.  Names such as Salisbury, Pretoria, Grahamstown, and King Williams Town buried the indigenous memories of the people inhabiting that space.   It remade Africa in the image and memory of Europe. At the time, there was a general consensus that there were no people with valid memories and identities on the continent; only free land, resources and barbarians in need of civilization.  When you erase memories, amnesia so to speak, you are granted a blank slate onto which you can write almost anything.

The memories that exist in my context are those of white greatness as opposed to African greatness. Cecil John Rhodes was rarely represented as the brutal, racist, misogynist that he was in reality.  He was an important part of my history.  For most of us, the memories of black greatness, before colonization, simply do not exist.  It’s as if our history started with colonization.  

One of the most important tools that was used to erase our memories is The School.  Cheikh Hamidou Kane put it best in saying, “The cannon compels the body and the school bewitches the soul.”  From the time I entered the educational system, a foreign language was used to measure my intellect.  I wasn’t even allowed to appropriate the English language and make it my own. I had to master it, speak “the Queen’s English” and my native language was an elective.  The colonialists used the school to reinforce white superiority and give us their version of great civilization; many elements of this (if not all) still exist in our educational system today.   Of course the name “Rhodes” sounded better to me because it resonates with the memories of greatness (read whiteness) that I was given at school.  

It was only after I read Ngugi Wa Thiong’o’s “Something Torn and New: The African Renaissance” that I truly understood the extent of colonization. Physical colonization was a short-term objective, but colonizing the mind, that was the real goal. Decolonizing the mind is the battle that my generation has inherited from our liberation fighters.  Mental colonization is so subtle, nuanced, but most importantly, reinforced by the names and the symbolic statues around us.

While Africa cannot be un-colonized, and people like Rhodes are part of our history, their legacy should no longer be part of our memory-making process, especially not at schools.  If Rhodes University, for example, has moved so far away from Cecil John Rhodes’ vision of an all white, male institution, how do you reconcile this “transformation” with its name? How do you insist that Cecil Rhodes must remain the reference point of the institution’s greatness?   I am not suggesting that we must forget the legacy that he left in Africa.  His statue can be preserved in a museum and that museum can have his name.  But for us to even start the process of decolonizing our minds, we need to create spaces that don’t suppress the memories of African greatness.

[misslawyerlady]

How the BandAid30 Stole Christmas

Take up the White Man's burden,

The savage wars of peace

Fill full the mouth of Famine

And bid the sickness cease

-Rudyard Kipling

   Over 115 years later, the resonance of Kipling’s words can still be heard as you turn on your radio this Christmas.  In an effort to raise funds for the Ebola crisis, the BandAid30 song “Do They Know it’s Christmas” remake, has managed to appropriate a public holiday and reserve it for non-Africans.  

 It is an undeniable fact that the Ebola crisis in West Africa is in urgent need of funding to ensure that the deadly virus is contained.  Almost 7 000 lives have been claimed thus far, and over 10 000 people have survived the virus. At the moment, Ebola is concentrated in West Africa namely Sierra Leone, Guinea and Liberia and  isolated cases have occurred in Mali, the United States, Nigeria, Senegal, Spain and Italy. 

  This crisis inspired Bob Geldof to mobilize the musical masses and create the BandAid30 in order to dust off the 1984 song “Do They Know it’s Christmas”.  I first heard the song when I recently followed a link posted of Facebook.  I was intrigued by the title, who are “they”? I wondered, only to realize that the title referred fellow Africans. Do we know it’s Christmas?

  Although West Africa is explicitly mentioned in this song, I cannot help but feel equally patronized, especially since previous versions simply mentioned Africa.  In this song however, the 340 million people spread across the eighteen countries that make up West Africa are amalgamated into a single suffering unit. It completely neglects the fact that many in West Africa may be celebrating Christmas as a religious holiday, or some simply enjoy Christmas time as a time for gathering and merrymaking. The condescension in this song almost suggests there should be guilt in Africans knowing that it’s Christmas when you are surrounded by adversity.

  Embellished in harmonies and instrumentals is a cacophonous message that defines Africa as inferior to the West. In navigating its way through sheer ignorance, condescension, stigmatization and dichotomization, the BandAid30 have successfully managed to reinforce stereotypes of Africa that we have been fighting for decades.   Each time I have expressed my disgust, I have been reminded that these “lyrics have been re-worked, they aren’t as bad as they used to be” or “at least they are trying to raise money for the crisis”.   The classic “beggars aren’t choosers” attitude has been used to justify the dehumanization of Africans, as though I should be grateful that it’s less racist.  To quote Chimamanda Adiche, “Racism should never have happened and so you don't get a cookie for reducing it.”

One of the primary tools of racism is to create a dichotomy- us and them.  This allusion is designed to detach us from them, which makes it easier to reinforce negative perceptions and attitudes.  Edward Said put it best when he said “[T]he Other is a mystification that is reduced to a fetish by a hegemonic subject”. So when a song designed to raise awareness and funds for a cause states, “say a prayer and pray for the other ones” it subliminally attempts to reduce us Africans to this weak entity in need of saving.  It reduces us to a cause by excluding us from the broader world community.  Even our locally based artists were excluded from the remaking of the song.  

The video does an excellent job of providing a clear antithesis between “the other ones” and themselves by starting with strong clichéd images of suffering Ebola victims then swiftly transitioning to the flashing lights of celebrity glamour. The shocking images are designed to evoke emotions and induce people to donate money towards fighting the Ebola Crisis. I completely support the cause but I cannot support its vehicle.  For too long the only images of Africa are those of disease and destitute lives.  An image of West Africa has been painted where “a kiss of love can kill you and there is death in every tear”. Of course this was supposed to be a reference to the modes of transmission of Ebola, but it also reduces simple moments of sadness or even happiness to death.  It reinforces this age-old idea that Africa only has pain and suffering to offer.

The essence of the song is to suggest that in light of this pandemic, West Africa cannot possibly know that it’s Christmas. In my opinion qualifies as the attempted theft of Christmas in West Africa.  Not only is it condescending, it appropriates a festive season, peace and joy; things that no one has the right to reserve for another person let alone an entire region.

The song further tries to strip West Africa of its agency by saying “Bring peace and joy this Christmas to West Africa”. It resonates with the ideologies of colonialist and missionaries in being Africa’s savior. It suggests that you can bring peace and joy to them, give them something they cannot have for themselves.  Despite the existence of the almost 10 000 Ebola-survivors, West Africa needs you to bring them peace and joy.  In all honesty, what is needed is financing to combat Ebola and that has nothing to do with the peace and joy of the 340 million people across West Africa.

  The poorly re-worked lyrics of this song are not the reason that it raised over £1 million pounds in 5 minutes, but rather the cause and the celebrities on the track raised this money.  There was no need to rehash the racist Ghost of Christmas Past regardless of how pure the intentions were.  I think it’s unfathomable that in 2014 the writers, artists and producers did not pick up on the patronizing nature of the song. The idea that every time Africa needs funding to alleviate a crisis, the same racist record can be dusted off is evidence of a huge problem in the way Africa is perceived. There is no nexus between famine in Ethiopia and Ebola in West Africa apart from the fact that they happened on the same continent…30 years apart.

 Initially, I blamed Bob Geldof until I read Fuse ODG’s piece on why he refused to be a part of the song.  That’s when I realized that individual artists had the autonomy to analyze the lyrics and then make an informed decision as to whether or not to offer their consent in negatively reinforcing stereotypes of Africa that have been the foundation of racism and superiority complexes for far too long. So in my opinion, it was the BandAid30 that tried to steal Christmas and probably didn’t even realize it. With every shocking image and lyric, they have set us back in combatting perceptions and fighting for our rightful place as equals in the global society; perceptions that will remain, even after we beat the Ebola Pandemic. 

[misslawyerlady]

Who is Writing Africa's History?

A close friend of mine asked me a very interesting question today.  She said “who is writing Africa’s history?”  That question immediately incensed me, and many questions of this nature often do.  Who is writing Africa’s history?  Who is writing the history of 54 different states all with different nuances and experiences?  My ultimate response to my friend (after a rather long outburst) was that this question inherently answers itself.

  The origin of this question is a common proverb: “Until lions have their own historians, tales of hunting will always glorify the hunter”.  In this context, Africa is the lion, and our former colonial masters are the hunters.   Questions like this frustrate me.  There is an obvious answer that will convince and please most people engaging in this kind of debate. This is the kind of answer that straddles the line between the political and the socio-economic realities of Africa and who is controlling those spheres.   However, I think this question is inherently flawed.

  Who is writing Africa’s history?  First of all, who is “Africa”? Is this question asking me whether the same force that is writing the South African, Mauritian and Zimbabwean history, is writing the history of my Tunisian, Libyan and Egyptian contemporaries?  It irks me when Africa is referred to as a mysterious homogeneous coalescence of vibrant culture and people for the world to marvel at or pity.   When I asked my friend “who is Africa?” she said “we are”, which is a very valid point that reflects the inherent flaws of this question.  Whilst I am an African, I cannot relate to the experience of my peers in the north; nor can I start to describe the impact of their colonial past on their history writing process.  In fact, I am not sure I can fully relate to my peers just across the border on some of these issues.

  The question “who is writing Africa’s history” is inherently designed to homogenize Africa in much the same way as colonization.  Whilst we are all inspired by the rhetoric of “we as Africans are becoming our own historians, telling our own stories,” that rhetoric is reflective of an even deeper rooted problem.  One cannot address this question without looking at “Africa” from a certain perspective, and unfortunately that is the perspective of the colonizer.

  The first step of colonization was to make Africa a single unit, populated by Africans.  These Africans have a shared experience and are the same, just in different places.  When I attempt to answer this question, I must first assume that same voice: we as Africans are the same, we have a shared experience, and we must now write our own history.  This is ludicrous.  A 40 year old from Ghana may not understand the racial sensitivity of a 29 year old South African, simply because the Ghanaian was born post independence and the South African has vivid memories of Apartheid.  As a “born-free” myself, I cannot relate to experiences of my peers in parts of the DRC who have never seen peace.  Even culturally and socially we have such different experiences and these impact who our historians are as individual countries or even at the community level.  

  Until we stop looking at Africa as a single unit with a shared history to write about, our voices will be the mouthpieces of the colonizers.   This question can only be answered from the looking glass of mental colonization.   It reflects a very specific discourse albeit subtle.  This is why I said earlier, this question answers itself: the former colonial powers are still writing the history of “Africa”.  A more appropriate question would be “who is writing your history as a nation?”  One can argue that even as a nation, there is no shared experience. However, when I refer to a shared experience I do not mean the nuances of your daily routine, luxuries or lack thereof.  For example, there is not a single Zimbabwean who can claim they did not share the experience of hyperinflation.

  The moment one debunks this question, it becomes a much harder question to answer.  It goes beyond the rhetoric of colonization and the glorification of the hunter.  Perhaps our leaders are now the hunters, and we are the lions or in some cases, the opposite may be true too.  The beauty of history however, is that it will never be written by one person.   It’s not so much that the lions do not have their own historians as much as it is that no one has cared to read the lion’s account of history.  Writing history is power, and it is power that one must claim by taking part in that process.  Our former colonizers will never stop writing our history, we just need a louder voice to drown their versions and banish them to the peripheries of our discourse.  That’s what I’m trying to do for Zimbabwe’s history. 

[misslawyerlady]

We’ll Vote YES Then Amend the Constitution…Problem Solved?

As the referendum goes on, apparently with a low urban turnout so far, from talking to several people, I have a strong suspicion that team “#VoteYes” will prevail.   I have engaged in stimulating debates with my peers on social media who do not agree with my NO vote.  One argument keeps coming up over and over; the basic premise being that a constitution is a living document and can be amended.  Many people argue that the draft is generally a good document and where it lacks the court and the legislature will step in and fix it until it is perfect.  I’m afraid I have to disagree with this logic.

For over a decade, the state has not been able to give the people of Zimbabwe very much, for a wide array of reasons.  Therefore I completely understand that the masses would rather accept this document than revert to the original one; a half-empty glass of water is still a glass of water.  However should you accept that glass of water, do not expect it to be  filled up eventually.

According to Zimbabwe Lawyers for Human Rights, the original Constitution of Zimbabwe has been amended a record 17 times.   In the realm of Constitutional law, this is alarming.  First of all, it reflects the ease with which the document can be amended thus leaving it vulnerable to abuse. Secondly, it shows that the so-called “living” nature of an amendable document does not always reflect the will of the people.  I would like to go through section 328 of the current draft to show the problem with expecting the document to be perfected by amendments.  Again, these views are in my opinion and I welcome disagreement.

The Amendment Process Simplified:

Firstly, only a Constitutional Bill can amend the Constitution. This is an Act of Parliament that expressly states that it is amending the Constitution.   The prospective Bill must be published in the Gazette for 90 days before it is presented to the Senate or National Assembly. Thereafter parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so.  Thereafter, the Bill can only be passed by a two-thirds majority vote in each house of Parliament.  This is the general process when amending the constitution.

The process changes slightly where amendments to Chapters 4 and 16 are concerned.  Chapter 4 contains the declarations of rights, and Chapter 16 contains agricultural rights and issues.  Where amendments to sections within these two Chapters are concerned, the Bill must be submitted to a national referendum within three months of the National Assembly and the Senate having passed it.  Should it be approved by a majority of the voters voting at the referendum, it must be submitted immediately to the President who must assent it.

 So what’s the problem?

This section seems fairly straightforward. Parliament amends the constitution.  My question to my peers however, is at what point do you as an ordinary citizen get to submit a proposed amendment?  As voters, we are saying let’s vote yes then have the sections we do not like amended.  However, you have no say in what gets amended and when.  Therefore if Parliament does not decide to make an amendment on its own initiative then we can forget about tweaking this document.

Subjecting amendments to Chapter 4 to a national referendum seems like an excellent idea, which resonates well with the ideals of democracy.  We as a people must decide when our rights come into question.  For example, both the death penalty issue and the right to legal representation I mentioned in my previous post are found in this Chapter.  Those on the ground would testify that the process leading up to this referendum was onerous in itself.  The resources and manpower needed for such an exercise are beyond the confines of our struggling economy.  To what extent do you think Parliament is ready to propose an amendment that is going to create a financial and logistic nightmare for them?

One can argue that if enough pressure is put on Members of Parliament by their constituencies, they may be forced to make amendments in accordance to the will of the people even if such amendments lead to a referendum.  However, let’s be realistic.  Once this draft becomes national law, the majority of Zimbabweans will be apathetic, taking the occasional interest in high-profile cases that challenge some of the provisions.

Given the history and nature of Zimbabwe’s land reform program, I will concede that Chapter 16 should also be subject to a referendum should it be amended.  This was obviously put in place to prevent future governments from reversing a historical program.  My only issue is that there are certain sections that should also be subject to referendum.  An example is extending the term of the President under section 95.  This can be done entirely by parliament.  It must however be noted that there was an attempt to balance this out by stating that an amendment to a provision dealing with a term of office does not apply to the person holding that office at the time when the amendment is passed.  In my opinion, this is not a good enough safeguard.

There is also the argument that the Constitutional Court will make amendments as needed.  However, the separation of powers is enshrined in section 3 of the draft.  The Constitutional Court therefore has no legislative powers.  According to section 167, which deals with its jurisdiction, the Constitutional Court can advise Parliament on the constitutionality of its Bills and refer unconstitutional Bills back to Parliament. 

We as the general public are only invited to submit our views on the amendment of any section of the Constitution.  Legally speaking such views merely inform Parliament and have no binding effect.  Ultimately, should there be an amendment we object to or would like to insist on, all we can rely on is public outcry to sway Parliament.  This is why your vote in the referendum counts.  After this weekend, should the majority vote in favor of the draft, the power to make an amendment to our new constitution does not ultimately rest in your hands, but in the hands of Parliament. 

[misslawyerlady]

A New Constitution for Zimbabwe?

On the eve of the referendum to vote on whether the people of Zimbabwe want to make the draft constitution the supreme law of the land, I cannot help but feel mixed emotions.  As a Zimbabwean, I feel I would vote Yes! As a legal professional I would definitely vote NO! 

Voting as a Zimbabwean…

For over a decade, Zimbabwe has been struggling with a tumultuous political, economic and social reality.   This is a fact that every citizen would not argue with.  Particularly during the 2007-2009 period, there was very little vision of hope or foreseeable solution on the horizon.  Then the Government of National Unity happened, and although both parties appeared to be singing from the same hymnbook, our basic standard of life as Zimbabweans improved.  You could now go to a shop and buy bread.

Given our eagerness for change from the 2008 situation, the notion of a new Constitution brought this glimpse of a new Zimbabwe.  Realistically however, the vast majority of Zimbabweans have never even read our original constitution.  If you ask the average person what was wrong with the first one, you are unlikely to get a meaningful answer. We as a nation just understand that the constitution needs to change for things to get better.   Moreover, the consultation process made the drafting of the new Constitution an exercise of national unity.  The people of Zimbabwe therefore view this new draft as the coming together of millions of voices; the codification of nationalism.  Voting yes therefore becomes your national duty as a citizen of Zimbabwe. 

At face value, the document looks good: dual citizenship, gender equality, a more comprehensive bill of rights, limitation on presidential terms and we even beat South Africa’s record on the number of official languages.  It addresses the superficial issues that come up amongst people as they ride to work everyday, or have a drink with friends.  It is therefore an improvement on what we had.  Let’s take it and run with it. So as a Zimbabwean, I guess I would vote yes!

Voting as a Legal Professional…

Unfortunately, I have had the privilege of studying the law and constitutional law in other jurisdictions therefore my understanding of what a constitution is supposed to be is legally informed.  I would like to place a quick disclaimer here…the legal views I articulate here, are entirely in my opinion and I welcome disagreement and debate; after all, that’s what court is for!

Hugo Black best articulated my stance on constitutions: “ Our Constitution was not written on the sands to be washed away by each wave of new judges blown in by each successive political wind.” When I first started criticizing the new draft, my peers told me that this document is workable and designed for the short to mid-term.  That is my first problem.  A constitution is not a random piece of legislation. It is the supreme law of the land.  Its unifying effect should be designed for the long-term.  What did Zimbabwe and her people have to go through before this document could be drafted?  It is a historical pattern that constitutions are usually borne out of adversity.  It must be noted that this has not been drafted as an interim constitution where it prescribes a set time for its application.  Realistically speaking, should this draft pass as law, it shall be kept for a long time.  Where is our recovering economy going to get the resources to embark on another exercise of this magnitude? Moreover, what motivation would lead to the birth of a new constitution in the short to mid-term?

In terms of actual content, I am of the view that this document has fundamental flaws.  There is no such thing as a perfect constitution.  All constitutions get challenged in the courts.  However, when there are fundamental flaws that can be picked up over a first reading, one can only imagine what I or any other interested party would find upon a deeper reading of the document’s nuances. To save time and space (and to prevent boredom) I'll just highlight 3 of the main flaws that are up for debate.

One of the most interesting debates raised by this draft is gender equality and equality before the law.  Please note the sections below:

Section 3(1)Zimbabwe is founded on respect for the following values and principles- (f) recognition of the equality of all human beings;  (g) gender equality.

Section 56 (1) All persons are equal before the law and have the right to equal protection and benefit of the law.

Now Please not the following section:

Section 48(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and….(d) the penalty must not be imposed or carried out on a woman.

Upon first reading, some have argued that this is a victory for women.  This logic baffles me.  How do you entrench the equality of all people and gender equality then create such an arbitrary limitation.  How is this a demonstration of how all persons are equal before the law?   Is it because women are a vulnerable group in society that needs protection?  I am hoping that this is one of the first constitutional challenges in our courts.  How do you justify killing men only?  Is this no different from saying women cannot go to the army because their lives must be protected?  Or is it suggesting that when a man commits murder, he is more culpable than a woman?  The only solution I would suggest is to scrap the death penalty altogether.

Section 6 has also been an administrative nightmare. Subsection 1 reads: The following languages, namely Chewa, Chibarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, sign language, Sotho, Tonga, Tswana, Venda and Xhosa, are the officially recognised languages of Zimbabwe.

Forgive my ignorance, but may I kindly ask if anyone has ever met an indigenous Khoisan speaking person in Zimbabwe?  There is no harm in enshrining cultural rights of all people and their languages, but to name official languages that are not a reflection of the Zimbabwean reality creates an unnecessary administrative nightmare.  Does the state even have employees not just conversant but competent in all these languages to fulfill their obligations under this section?  In South Africa, the average person is conversant and may even have roots in 5-6 different languages.  In Zimbabwe, the average person does not speak or understand 90% of the languages listed.  Some have argued that it is to stop the marginalization of the ethnic minorities.  This is an interesting argument in light of the fact that there are other minorities that the drafters had no problem marginalizing.

Another issue I have with this draft is the right to legal representation.  In most jurisdictions, this is a non-derogable fundamental right.  Some jurisdictions even go as far an imposing a duty in all legal professionals to dedicate a prescribed number of hours every month to legal aid work.  Section 31 pertaining to Legal aid and says "The State must take all practical measures, within the limits of the resources available to it, to provide legal representation in civil and criminal cases for people who need it and are unable to afford legal practitioners of their choice".  What this effectively says is that should you be arrested, and you have no money for legal representation, and the state has no resources to offer you representation, you are on your own.

 Section 70(1) (e) then states that accused persons have the right to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result. 

Now which one is it? Does my right to legal representation at the state’s expense depend on the resources available? Or does it depend on whether there would be “substantial injustice”.  When is does the absence of legal representation not result in injustice? To some, this may seem petty, but the day you are wrongfully arrested, have no money or access to money to hire a lawyer, the state says they do not have the resources to offer a public defender, and read you a section out of the very Constitution you voted for, the gravity of such ambiguity will be apparent.

These are not the only flaws I have come across in this document, but legal rants tend to bore the masses. So for now, I will leave you with these three points.  I will however, continue to vocalize my criticisms of this document.  I do concede that it is a step in the right direction, and a massive improvement on its draconian predecessor.  However, my problem is that COPAC has missed out on a huge opportunity to draft sheer brilliance that will stand at the core of governance and justice for generations to come.  The chance to write an entirely new constitution is rare.  While I appreciate being given exciting litigation work as a lawyer, I cannot approve a document with fundamental flaws.  Therefore, I would vote No! Tweak the flaws.  As a nation we deserve better than a half-baked document that will eventually need constant amendment.