Neither Settler nor Native: The Making and Unmaking of Permanent Minorities

by Mahmood Mamdani

Within the borders of each federation were and remain inhabitants subject to another kind of law: customary law. The people governed by it are members of native tribes, so called because the civil law groups them that way. If this sounds circular, it is: natives are not natives because of anything essential to them but because they were created as natives in law by settlers. Like civil law, customary law is unequal. It can offer its native enforcers capricious and tyrannical authority over other natives. But customary law, in both America and South Africa, is in no sense traditional. It is not a practice predating colonization. Customary law, like civil law, is created by settlers. The particular practices and norms associated with customary law are sometimes inspired by those of an era preceding colonialism, but customary law’s authority over natives, and the authority of natives to wield it, derives from statutes of the civil law.

The tribal regime embedded in customary law enjoined only natives. In South Africa, customary law applied to all natives, but only natives considered indigenous within particular tribal homelands had customary rights. Other natives, deemed immigrants within these tribal homelands, were denied the protections of customary law, including customary rights to land. In the United States, too, natives considered nonindigenous within a particular reservation are denied membership and therefore customary rights. Thus tribal—customary—law has itself been made discriminatory.

With the economy booming, Africans were moving into cities for work. And when they arrived, some of them organized into unions demanding better pay and treatment. The presence of African agitators in urban South Africa—and the threat they posed to the economic interests of whites—was a crisis in need of solution. Apartheid was that solution: an effort artificially to retribalize millions of natives by forcibly settling them in homelands, renamed Bantustans, which would be administered under the tightened fist of native authorities. Africans could return to cities as migrant laborers, but they would be denied the right to reside there. If the market economy detribalized labor, forcing it out of villages into industry, apartheid’s political solution was to retribalize that labor by sending it “home.”

efforts at armed liberation in South Africa resulted in crackdowns on militant leaders like Mandela, who were imprisoned or expatriated. In prison and exile, armed liberators lost connection with the very constituencies whose challenges they were committed to addressing. More like diplomats, they won the favor of international politicians and boycott movements and gained prestige.

The crisis of apartheid might have been resolved with mass bloodshed, leading either to new forms of legal subjugation or to political and spatial separation. Both outcomes would likely have fostered more violence, in an ongoing cycle. Instead South Africa now has competing political constituencies working to achieve their goals under the aegis of a system seen as legitimate by the participants. This is possible because, in spite of the TRC, enough South Africans have been willing to rethink political identity. They have come to recognize that the racial political identities of the past were not timeless but rather created by political processes. As such they could be dismantled by political processes as well. South Africans have thus felled one pillar of the settler-versus-native distinction in their country: race as political identity. This is the key divergence from the US situation.

In South Africa, tribe has been naturalized, presumed to be part of a timeless native—that is, African—culture. In the former Bantustans, the regime of customary law remains substantially unreformed. In rural South Africa, violence continues among Africans who define themselves as tribally distinct. Africans are still denied rights under the customary regime, should they live in the “wrong” tribal homeland. In urban South Africa, Africans and other persons of color seen as tribal strangers, and thus intruders, are periodically the target of what is called xenophobic violence. South Africa’s story tells us much about how a society can go about decolonizing. But it also speaks to the enormous challenge of that worthy project.

restive.

The tribal chief was a local despot who could requisition tribesmen for any number of purposes, including “defense, or to suppress disorder or rebellion, or as laborers for public works, or for the general needs of the colony.” The tribal chief was in turn appointed—and removable—by the supreme chief, who was not a native but the lieutenant governor of the colony. The nomenclature of “supreme chief” suggested that his powers were a continuation of native tradition, but in fact they exceeded those of any precolonial despot.

The regime of absolute control reorganized relations within Zulu society, establishing a rigid patriarchy in which the native head man of each kraal, or village, exercised total authority over minors and women within his domain. By law he was the “absolute owner of all property belonging to his kraal,” and it was his duty to “settle all disputes” within. All residents of a kraal were “minors in law,” except for married men, widowers, and adult men “not related to the kraal head.” Unless exempted by civil legal authorities, women were “always considered minors and without independent power.” They could “neither inherit nor bequeath.”

Native governance in Natal was the essence of colonial absolutism: rule by decree, without judicial or parliamentary restraint. That approach continued after South Africa became independent. The South Africa Act of 1909, the law that was the basis of union, vested control over native affairs in the governor-general, not in Parliament, ensuring that natives would continue to live under a distinct legal system that amounted to a dictatorship in which all power flowed from a single official.

The Cape swelled as the English conquered the Xhosa people, who inhabited the eastern part of the territory, in the course of a century of conflicts inscribed in colonial history texts as the Kaffir Wars of 1779–1879. In the face of this prolonged armed resistance, the masters of the Cape were determined to uproot all native institutions. The colonists saw the tribe as signifying both a territorial parameter of defense and an ideological anchor of the native struggle for autonomy. Thus, what worked for the colonizer in Natal did not in the Cape. In the Natal colony chiefs were empowered (albeit, under ultimate colonial supervision); in the Cape colony, chiefs were smashed in an effort to erode the military capacity of the tribes and stem their rebellious ways.

What changed was the relative political strength of agricultural and mining interests. As mining expanded, so did the political power of mining corporations, whose labor needs differed from those of farmers. Settler farmers wanted to break up tribes so as to release labor that could be housed, absorbed, and controlled on the farms. Mining companies, by contrast, wanted to maintain tribal reserves, which housed laborers when they weren’t needed and released them for the seasonal work on which the mining industry relied.7 The miners’ demands won out over the course of the twentieth century and ultimately served as a precursor to the apartheid system.

In 1936 the Native Trust and Land Act doubled the allocation of land to peasant communities, and the area was cordoned off from private possession, whether by white settlers or native proprietors. The natives were not, however, able to possess land under the civil system of freeholding and leasing; rather, their land tenure was based on customary law. The idea was to maintain a pipeline of migrant labor. By shielding landholding from the disintegrative forces of the market, customary law ensured the continued reproduction of the peasant family supported by remittances from the migrant father. The wife and children cultivated the family farm, on which future generations of adult laborers were reared and to which the adult or aging male laborer returned when no longer needed at his place of employment.

In the 1950s and 1960s, under apartheid, this labor system expanded. Large numbers of Africans working in manufacturing were made permanent residents of the homelands, to which they would return when not needed in factories.

Defining the social status of the colonized by reference to race had two important disadvantages. First, it homogenized those colonized into a racially oppressed majority. Second, it was difficult to legitimate this mode of control because it was unmoored from any historical memory. Tribal rule at least could pay lip service to historical custom. Racism, then, tended to accentuate the colonial context of rule rather than assuage it. Its thrust was not to divide and rule but to unite. Tribalism had none of these disadvantages. Tribal identification and administration would fragment the native majority into several minorities, said to be both natural and traditional.

Where they were cowed militarily, that solidarity might not take the form of rebellion, but it could take the form of demands for representation. So settlers learned how to foster division within tribes. To this end, they became militant advocates of civilization. Just as US settlers picked up cudgels on behalf of former slaves and full-blood Indians in Oklahoma, to wage a fight against the Indian elite in the name of civilization, so did South African settlers embrace a civilizing mission that would emancipate ordinary tribesmen from the tyranny of chiefs and tribeswomen from slavery. “The wives of a man are practically his slaves,” Natal Governor Benjamin Pine lamented, “and the more a man has the richer he is.” His moral outrage was tinged with realpolitik. “How can an Englishman with one pair of hands compete with a native man with five to twenty slave wives?” he asked.

professional, the trader, and the intellectual, like the industrious half-bloods of the Five Civilized Tribes in the United States, came to symbolize a threat instead of the promise of civilization. These civilized natives demanded equal civil status and treatment regardless of racial identity. The tribal customs that yesterday were seen as cementing the bonds of resistance now appeared in a new light.

The 1922 Stallard Commission deplored “miscegenation” in urban areas, where blacks and poor whites lived “cheek by jowl” in squalid shantytowns. The commission spelled out a new urban policy in words that have since been chiseled in the annals of South African history: “The Native should only be allowed to enter urban areas, which are essentially the white man’s creation, when he is willing to enter and to minister to the needs of the white man, and should depart therefore when he ceases so to minister.”12

At the height of its popularity in 1927–1929, ICU had between a hundred thousand and two hundred and fifty thousand members, according to various estimates. The ICU helped to establish a tradition of black worker resistance—that is, of racial solidarity unconcerned with tribe. As one member put it, “Although the initials [ICU] stood for a fancy title, to us it meant basically: when you ill-treat the African people, I See You; if you kick them off the pavements and say they must go together with the cars and the ox-carts, I See You.… When you kick my brother, I See You.”

The August 1946 miners’ strikes were the most dramatic links in this chain of events. Between sixty and one hundred thousand migrant laborers stopped work, bringing at least seventeen mines to “a virtual standstill.”23 The strikes were centered on compounds, tightly controlled worker hostels inhabited exclusively by male migrant laborers while at their jobsites. The strikes were countered by massive shows of force. Compounds were sealed off under armed guard as 1,600 police were called in. Twelve miners were killed and more than a thousand injured. The strikes lasted just five days, but they proved to be “a milestone in South Africa’s social and political development.”24 Labor uprisings were essential to the crisis that the state solved with apartheid, and the legacy of 1940s labor action helped to inspire the movement that eventually brought the state to the negotiating table in the 1990s.

Although the commissions appeared in some ways at odds, they were in fact articulating the two prongs of what would soon become apartheid. The Sauer Commission described apartheid’s political program, focused on tribalizing Africans by settling them permanently in homelands, far from the towns and cities. The Fagan Commission described apartheid’s economic logic, which focused on bringing the resettled African men back into the cities as migrant laborers subject to racial control and life under supervision in compounds. When the National Party came to power in 1948, it set about establishing policies to implement the recommendations of the two commissions. In the resulting seesaw of compromises, the economic strategy was modified to allow a permanent African working class in cities, but their political voice still would be silenced beyond the context of tribal reserves. The denial of the franchise unleashed another tide of urban protest.

Apartheid’s focus on tribe marked a decisive shift in native control. While blacks were moving from tribe to race as the locus of oppositional politics, the state responded by going in the opposite direction, reinvesting in tribe as the antidote to black militancy. The logic is simple enough; it had played out before, as we have seen. When racial solidarity posed a threat, authorities turned to tribal institutions in order to foment division. But apartheid brought new techniques to this endeavor.

removal to Bantustans under indirect rule; on the other, direct rule in cities—the South African government reversed the trend of African urbanization without depriving urban industry of labor. The grand design of urban removal, as Tom Lodge puts it, was “to restructure the industrial workforce into one composed principally of migrant labour,” thereby ensuring economic output while undercutting African organizing.27 By 1990 half of South Africa’s black population lived in the Bantustans.28 A large slice of the black population was the victim of forced removals between 1960 and 1985: an estimated 3.5 million people, more than 10 percent of the South African population.

The mode of governance introduced by colonialism and perfected by apartheid had been so effectively naturalized that even resistors replicated it.

A highlight of the trip was Algeria, in Mandela’s words “the closest model to our own.” But that is where the resemblance ended. The decades that followed would record a sharp difference in both the nature of the struggle and its outcome in the two countries: faced with the reality of an independent Algeria, a million pied-noirs would leave for France. In South Africa, however, most settlers would stay, becoming part of the post-apartheid political community.

and pacified, as capital took command: the 1960s were a time of rapid economic development, when huge amounts of foreign investment moved into South Africa. Meanwhile, the exiles traded their fatigues for suits and ties. While liberation movements dissipated at home, their former leaders became professional revolutionaries operating on a global scale. At a safe distance from both apartheid’s terror machine and the discipline of internal struggle, they fostered a growing international anti-apartheid lobby.

Migrant workers, straddling the urban and the rural, moved between the lash of customary law and the disciplinary hold of civil law, and for that same reason were not fully controlled by either. These groups rejuvenated popular protest and shattered the silence of the 1960s. Despite the obvious differences among them, they made common cause during important actions such as the Durban strikes of 1973. Together they moved the locus of struggle from exiled professional revolutionaries and imprisoned fighters to the popular strata in South Africa’s communities—they brought the struggle back home. They also replaced an aborted guerilla movement with nonviolent agitation, to enormous effect. By acting peacefully, they maintained the moral high ground and distinguished themselves from an obviously violent system of oppression. Although they did not end apartheid on their own, they created the social and political paralysis that forced South Africa’s white rulers to capitulate and, in 1990, open negotiations. The student and worker uprising marked a shift not only in South Africa but in the whole paradigm of liberation struggle, preceding the intifada that shook occupied Palestine in the 1980s and Eastern Europe’s largely nonviolent revolutions of that same decade.

This was the work of the Black Consciousness Movement, led by Steve Biko. Biko was one of the African students who had joined NUSAS. But he and others chafed at the paternalism and hegemony of the group’s white organizers and struck out on their own. They founded the South African Students’ Organization, a group open only to blacks. While this may have seemed like a reinvestment in apartheid, it was anything but. By “blacks,” Biko and others promoting Black Consciousness meant African, Indian, and Coloured students. Black Consciousness was a historic rupture with the mindset of apartheid. Black, Biko argued, is not a color; if you are oppressed, you are black.

Students involved in Black Consciousness focused on black townships and made critical contributions to community-based protest. White students, shut out of black-consciousness organizations and the black townships where they organized, were like prophets outcast, searching for a constituency. They found it in migrant worker hostels and the township fringes. Radical white students played a catalytic role in the development of independent unions that did much to nurture the crisis that brought down apartheid, as I discuss below.

Militant black and white students had more in common than they realized. None was keen to join externally based organizations or to court state repression by proclaiming allegiance to an outlawed group. None heeded the argument, then fashionable in “liberation circles,” that anything short of armed or underground struggle, anything smacking of agitation for reforms or open organizational work, was tantamount to a recognition of the apartheid state and capitulation to it. They wanted to make change, not to be confined to jails.

A wave-like pattern developed: workers of one factory would go on strike and resume work once their demands were met, and then the strike would spread to workers of another company. There would be hardly any bargaining: demands would be announced and strikes declared at the same mass meeting.

The strike movement was like a magnet that attracted hitherto-dispersed migrant workers—African, Coloured, and Indian—into a collective effort that eventually took the form of independent unions. The strikers’ primary grievance was the deprivation foisted on them by apartheid economics.

Many of FOSATU’s white activists then joined the Communist Party and later the ANC. When the time came for a negotiated end to apartheid, they provided effective channels of communication to the white population and served as role models. If one prong of the anti-apartheid struggle involved mobilizing a population that had come to understand itself as black, the other prong involved educating a population that had always been sure it was white. White activists challenged apartheid’s claim that there could be no white security without a white monopoly of power. Indeed, they suggested that the reverse may be true: that whites could be more secure if they gave up their monopoly and the strife it caused. Imperceptibly, the shift of white radicals from workerist organizing to public outreach set in motion the realization of a nonracial future.

As for black mobilization, another key episode was the Soweto uprising of 1976. Soweto was a coming of age for black community organizing. On June 16, nearly 20,000 black students gathered in the Johannesburg township of Soweto. Many of the students were high schoolers organized by the South African Students Movement, which was heavily influenced by SASO and the Black Consciousness Movement. The students joined together to protest Bantu education—in particular, a new law requiring that classes be held in Afrikaans. As they marched peacefully through the township, they were confronted by heavily armed police, who opened fire first with teargas and then bullets. The youth had no more than stones to throw at their assailants. Hundreds of protesters were killed. The organizers and marchers inspired a generation of community-based resistance. Everyday people in the townships were radicalized and unleashed more protests. As they did so, they found their way inside the South African prison system, including the prison at Robben Island where Nelson Mandela had been locked up for years.

One day I was at the head office conferring with the commanding officer. As I was walking out with the major, we came upon a young prisoner being interviewed by a prison official. The young man, who was no more than eighteen, was wearing his prison cap in the presence of senior officers, a violation of regulations. Nor did he stand up when the major entered the room, another violation. The major looked at him and said, ‘Please take off your cap.’ The prisoner ignored him. Then in an irritated tone, the major said, ‘Take off your cap.’ The prisoner turned and looked at the major and said, ‘what for?’ I could hardly believe what I had just heard. It was a revolutionary question; what for? The major also seemed taken aback, but managed a reply. ‘It is against regulations,’ he said. The young prisoner responded, ‘Why do you have this regulation? What is the purpose of it?’ This questioning on the part of the prisoner was too much for the major, and he stomped out of the room, saying, ‘Mandela, you talk to him.’ But I would not intervene on his behalf, and simply bowed in the direction of the prisoner to let him know that I was on his side.

The end of one period was the beginning of another: that of negotiation. But when negotiations began in May, they sidestepped the organizational architecture of the uprising. Like the colonial authorities who allied with customary authorities at the outset of indirect rule, the South African government turned to partners said to be the legitimate leaders of black South Africa, even though they were marginal to the internal anti-apartheid movement that had actually forced the change that was now afoot.

Nelson and the ANC—which began discarding apartheid’s racial distinctions only a few years before his release—were no longer at the political cutting edge. Indeed, their methods had been repudiated. Their legitimacy came from international approval and Nelson Mandela’s celebrity as a political prisoner, not from their leadership.

to believe that apartheid could simply give way to social equality was to ignore the critical tensions of the South African moment. The consolidation of the anti-apartheid movement had fostered a crisis, not a victory. The option in the early 1990s was to keep fighting, to keep breaking down the state and pitting enemies against each other, or else to reach out and achieve some compromise whereby enemies might live together as political adversaries. The success of the anti-apartheid movement had been based on such compromises, whereby whites accepted that they would not be in charge and blacks accepted that whites had something to offer—that their participation meant not capitulation to apartheid but rather resistance to it.

Mbeki’s answer was unequivocal: I am formed of the migrants who left Europe to find a new home on our native land. Whatever their own actions, they remain still part of me.… I am the grandchild who lays fresh flowers on the Boer graves at St. Helena and the Bahamas, who sees in the mind’s eye and suffers the suffering of a simple peasant folk: death, concentration camps, destroyed homesteads, a dream in ruins … I am an African.43 The concentration camps Mbeki referred to were built by the British to house Boer prisoners during the Second Boer War, when the British conquered their fellow whites and took their colonies. Mbeki was announcing a transformative revision of history, in which it was not only Africans who were colonized—by the British and the Boers—but also the Boers. He was challenging South Africans to reimagine political identity, to see that political identity could be reimagined because it is a product of histories, not nature. If whites, too, could be colonized Africans, then they could be citizens of the postcolonial state.

Yet white fear did not carry the day. Why? Because important sections of the liberation movement had learned to think in holistic terms. They told anyone who would listen—and these numbers grew over time—that the struggle was against not settlers but settler power. Without a state legally underwriting settler privileges, settlers would be ordinary immigrants. This was the heart of the South African moment: redefining the enemy as not settlers but the settler state, not whites but white power. By doing so, South Africa’s liberation movements eased whites into the idea of a nonracial democracy.

The installation of so much power in the ANC and National Party was acknowledged by many as a blatant curb on majority rule. But there is another way to think of it, too: as subordinating the majority-minority frame to a larger quest in the name of the general interest.

entrenched white privilege. One of the key mechanisms for this entrenchment is the constitution, which guarantees protection of private property as a fundamental human right. But this protection is not for all. It excludes those whose lands were appropriated after the passage of the 1913 Land Act, which, of course, incorporates those dispossessed after the introduction of apartheid in 1948. A statute in the legal code provides for the restoration of lost land to the majority population, but because this is extraconstitutional law, it usually loses out to constitutional protections when native and settler property rights are in conflict. The constitution does allow for expropriation in the “public interest” but with equitable compensation, ensuring that settler claims to ownership are generally respected.

consociational

insurmountable legal obstacles in the way of any popular project to redistribute income through taxation. The clause requires that local government levy uniform taxes across their jurisdiction. This prevents local governments from taxing white areas so as to spend more in black areas.

The real quid pro quo was not amnesty for guilty pleas—as in the process of truth and reconciliation—but the dismantling of juridical apartheid and the introduction of majority-rule electoral politics at the national and provincial levels in exchange for concessions to white economic privilege.

I suggest we think of CODESA less as an alternative to Nuremberg than as a response to a different set of circumstances. To do so is to acknowledge that Nuremberg cannot be turned into a universally applicable formula, as contemporary human rights discourse insists. The conditions that were obtained in apartheid South Africa were different from those that led to Nuremberg in at least two ways. First, whereas Nuremberg followed a military victory, the challenge in South Africa was to halt a conflict that was ongoing—to convince sworn enemies that neither could win.

Second, whereas Nuremberg was informed by the logic of ethnic cleansing—that is, the logic of physical and political separation between yesterday’s victims and perpetrators—there was never serious thought of creating an Israel for victims of apartheid in South Africa. Some fearful Afrikaners did unsuccessfully propose creating an autonomous community to defend themselves, but this only strengthens my point: South Africans affirmatively rejected separation. It was clear that victims and perpetrators, blacks and whites, would have to live in the same country. This led to legitimation on both sides of the conflict. Once-banned liberation organizations—the ANC, Pan Africanist Congress, and the Communist Party—were legalized. Meanwhile anti-apartheid activists accepted that members of the apartheid regime, such as the National Party and right-wing networks such as the Afrikaner Broederbond, would take part in the post-apartheid political landscape.

Whereas Nuremberg was backward looking, preoccupied with justice as punishment, CODESA sought a balance between the past and the future. There was an acknowledged place for redress, but the priority lay in creating a foundation for a future state that would include all South Africans in the political community. This is the difference between victims’ justice and survivors’ justice. Everyone who lived through apartheid—victims, perpetrators, bystanders, and beneficiaries—was a survivor.

Although Nuremberg prioritized prosecution and the TRC reconciliation, both had a neoliberal orientation, locating guilt in the individual rather than the forces wielding state power.

The outcome of the TC was perverse. Between 1990 and 1994 alone, an estimated 13,000 to 21,000 South Africans were indemnified, whereas the TRC identified only 7,094 individuals as perpetrators. This is not only a gross undercount of perpetrators, but, as Sitze explains, “the majority” of those condemned “were, in concrete terms, drawn from the ranks of liberation movements.”46 The guilt established by the TRC was therefore the guilt of apartheid’s opponents, not of backers of the state who carried out atrocities in its name.