Mahmood Mamdani: Legal Band-Aid not for deep wounds

Mahmood Mamdani’s book Citizen and Subject: Contemporary Africa and the Legacy of Colonialism (1995) is now viewed as one of the key texts on citizenship, modernity and post-colonialism in Africa. Last month he delivered the second annual Mistra lecture at the Mapungubwe Institute for Strategic Reflection, as well as launching his new book, Define and Rule: Native as Political Identity (Wits University Press), which was based on his WEB du Bois lectures at Harvard.

It is a study of colonial “indirect rule” and how that affected social identities (“native” versus “settler”) and conceptions of “Africanisation” after independence, inflecting arguments about social inclusion or exclusion (“Who belongs?”, as Mamdani puts it in this interview).

Born in Uganda, Mamdani is the director of the Makerere Institute of Social Research, the Herbert Lehman professor of government at the School of International and Public Affairs, and the professor of anthropology, political science and African studies at Columbia University. He also taught at the University of Cape Town for a time. We spoke about the lecture in more detail:

Your Mistra lecture (Beyond Nuremberg: Breaking the Cycle of Violence) talks about how processes such as the Truth and Reconciliation Commission (TRC) and the International Criminal Court (ICC) are modelled on the Nuremberg trials of prominent Nazis after World War II. You ask whether such processes can help to build unified political communities in Africa.
The TRC saw itself as a surrogate for a Nuremberg-style process, with the difference being that the TRC would give amnesty in exchange for the truth. But the TRC saw itself as a quasi-criminal proceeding, a quasi-judicial proceeding. And, I think, like Nuremberg, it was a performance.

The real exchange took place at Codesa, and that was not an exchange of amnesty for truth but amnesty in exchange for the dismantling of political and juridical apartheid. That was the real exchange. In some ways, the exchange was spelled out in the sunset clauses: broadly, the structure of governance would be retained — courts, police, and so on — and including some participation in governance itself, in return for reforms that would lead to equality before the law.

So I’m interested in extracting Codesa, that process, from the language of compromise and pragmatism. What is more durable there? What can be translated into other situations of intractable political conflict, situations that have led to mass violence? I’m interested in the alternatives to the judicial process.

So the TRC used the Nuremberg model and substituted for real trials in real courts, but also offered amnesty, a sort of salvation in exchange for confession. In that respect it was more like a church than a court. You say the ICC is also modelled on Nuremberg, but even more closely because it can impose penalties on people convicted of crimes against humanity.
Nuremberg has been turned into a template for how to deal with mass violence. But Nuremberg took place at the end of a war between states; it was the product of victory on one side and defeat on the other. The essence of South Africa’s situation was that it was a stalemate. Both sides acknowledged that.

At Nuremberg, the logic of the victorious powers was that victims and perpetrators must not share a common future. The endpoint of such thinking, after Nuremberg, was of course the state of Israel — the victims must have their own state.

For any settlement on the African continent, this logic cannot work. Whites and blacks have to live in the same country in South Africa. Hutu and Tutsi have to live in the same country in Rwanda. Of course there are exceptions — Ethiopia and Eritrea, like Sudan and South Sudan, separated. But these are exceptions. We are looking for a process that will help to construct inclusive communities rather than separation. Wherever we have tried the judicial model on this continent, a solution has evaded us. Wherever we have had a modicum of a solution in Africa, the heart of it was a political and not a judicial process.

Look at Mozambique: Renamo now sits in government. Compare this to Uganda, where the LRA [Lord’s Resistance Army] is still viewed as having committed acts of terror and so on, and the LRA leadership is hunted. The Ugandan Parliament passed an amnesty Bill for the LRA, but the presidency, in cahoots with the ICC, ignored that and now the LRA leadership is on the ICC “wanted” list. This precludes a political solution.

You can’t have a winner-takes-all process in a divided society.

So you’re saying the TRC was the performative extension of the settlement reached at Codesa and, for all that, it did help to produce a political solution in these conflicts, but the ICC is not doing that.
Codesa had a downside: concessions in terms of local government, particularly, wouldn’t allow for redistribution without the consent of a wealthy minority. That is a problem for the durability of an inclusive political community. I agree with the view that perhaps Codesa could not have dealt with those issues then but the TRC could have begun a conversation on it.

Yet the TRC defined victims as though no apartheid had ever existed — simply as individuals whose bodily integrity had been violated. That is to put apartheid on the same plane as any dictatorship anywhere in the world. But apartheid affected the entire society, not just isolated individuals. Its cutting edge was legislation that defined the whole population into groups it called races, then it passed laws that enabled a minority and disabled a majority.

What is common to the TRC and the ICC is that both ignore the issues that led to the violence. But there’s no real way forward unless we take on the issues. I believe we are dealing with cycles of violence and, when it comes to cycles of violence such as go into the making of a civil war, each side has a narrative of victimhood.

And the sides can change places. When I studied Rwanda, the more I looked at the historical dimension the more I realised that the two sides tended to change places. A perpetrator was a victim one day, became a perpetrator the next day. This was not a stand-alone act of violence.

There is a difference between political violence and criminal violence. Political violence has a constituency — it’s not just about individual perpetrators. Political justice affects entire groups of people. The TRC was only dealing with individual violators of human rights, understood in a narrow way: his right over your person. It focused on those who broke the law in this respect.

If it wanted to make itself more relevant to the future, the TRC could have educated the white population, in particular, that although most of them were not perpetrators they were beneficiaries. But then it would have had to take the limelight away from torture and so on and refocus it on who benefited — where you lived, which schools you went to, what jobs you could compete for.

I attended the hearings in Cape Town where FW de Klerk spoke. It was extraordinary because he apologised for apartheid and he spoke about apartheid in the terms I’m describing it. But the TRC was only interested in, “Did you give orders in this case, that case?” Likewise, the ICC has reduced mass violence to this simplicity, where there are these few perpetrators and more than 20 000 victims.

What about the situation in Kenya now, where the president-elect is facing charges of inciting mass violence?
Kenya has prioritised the judicial process. Debate in Kenya was whether perpetrators should go to court in Kenya or at the ICC. There was unanimity that they should go to court.

Violence in Kenya is similar to that in Darfur because, on the ground, you have the land question. On the one hand, there is a colonial definition of tribal ownership, with an origin in colonial law — it belongs to me “as a native”. The other is a market-based claim: that land belongs to whoever holds the title to it.

This is a huge issue that confronts Kenyan society. Instead of prioritising the issues that made the violence more than criminal, that allowed people to set in motion violence in which thousands would die, they have focused on a Band-Aid solution. But you could put all the perpetrators in jail and that violence would restart.

Every society that has gone through colonisation has had to ask these questions: Who belongs? Who doesn’t belong? At the root of political violence is exclusion.

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Author Shaun de Waal
Shaun De Waal

Shaun de Waal has worked at the Mail & Guardian since 1989. He was literary editor from 1991 to 2006 and chief film critic for 15 years. He is now editor-at-large. Recent publications include Exposure: Queer Fiction, 25 Years of the Mail & Guardian and Not the Movie of the Week.

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