‘Black man in the white man’s court’: Performative Genealogies in the Courtroom

Chapter 9
‘Black man in the white man’s court’: Performative Genealogies in the Courtroom

“What are these trials about, eh? Who is it they are trying?” one of them asked. “The whole of South Africa is on trial”, replied Professor Matthews, looking up darkly from his group. “You’re on trial, we’re all on trial. It’s ideas that are being tried here, not people”.¹

Anthony Sampson’s account of the above encounter is emblematic of both the substance and the tone of conversations taking shape on the streets of South Africa as the government stages a phenomenal spectacle in the courtroom. Describing the politics of repression at the heart of the treason indictment, counsel for defence captured the essence of the confrontation in terms of competing spectacles – a confrontation between spectacles of repression and resistance.² It was a cultural representation of a battle of ideas between those who ‘seek equal opportunity for, and freedom of thought and expression by, all persons of all races and creeds’ on the one hand, and ‘those which deny to all but a few the riches of life, both material and spiritual, which the accused aver should be common to all’.³ The first of the many high profile political trials, the spectacle backfired and generated what Sampson described as ‘the oddest paradox’: ‘in the very court where they were being tried for treason, the Congress leaders were able to hold their biggest unbanned meetings for four years’.⁴ In his memoir, Long Walk to Freedom, Mandela describes the trial’s boomerang effect: ‘Our communal cell became a kind of convention for far-flung freedom fighters. Many of us had been living under severe restrictions, making it illegal for us to meet and talk. Now, our enemy had gathered us all together under one roof for what became the largest and longest unbanned meeting of the Congress Alliance in years.’⁵

Apartheid’s spectacles of oppression were overtaken by liberatory counter-spectacles. What was orchestrated to produce and generate images and concepts productive to the racist regime were redirected and used by the oppressed as a platform for visibility and hearing: to give account of themselves in their own terms, with their own discourse and dialect.⁶ As he later noted, ‘By representing myself I would enhance the symbolism of my role’: ‘I would use my trial as a showcase for the ANC’s moral opposition to racism.’⁷ Instead of defending themselves against the charges, they laid a charge against the system, accusing it of racism, violence, injustice, immorality and illegitimacy; transforming themselves into ‘the subjects of history rather than … impersonal objects of official historical records’.⁸ An event staged with the sole purpose of squashing resistance against the usurpation of the voice and visibility of the black subject, generated the opposite result: it created a defiant black subjectivity capable of detecting oppressive norms at sites never seen before, a subject that finally apprehended and named Apartheid’s order of representation and its schematics of subjection.

This chapter will examine the significance of Mandela’s courtroom performances of resistance in illuminating our understanding of the constitutive and regulative conditions that sustained Apartheid. Much of the emphasis will be on Mandela’s appropriation of his speaking position and the conditions of possibility immanent in the trial. By identifying a few scenes from the Incitement Trial (1962), I will offer a historicist (genealogical and performative) reading of Mandela’s understanding and approach to the law, focusing on the objections he raises and the moves he makes between different analytic registers.

Performative-Genealogies in the Old Synagogue Court

We would not defend ourselves in a legal sense so much as in a moral sense. We saw the trial as a continuation of the struggle by other means.⁹

In ‘Just Stories’, Milner S. Ball conceives ‘narrative’ as a medium through which a political community is continuously and permanently constituted, renegotiated, and reconfigured.¹⁰ He argues, ‘Narrative is the primary medium for talking together about who we are – and would be – as people, and this is the talk in which conversation about justice chiefly subsists’.¹¹ It is in the telling and retelling of stories of people, in the continuities and ruptures, in the homogeneities and heterogeneities that the raw material for contestation, re-creation and renewal resides.¹² As Melvyn Hill tells us, ‘Stories tell us how each one finds or loses his just place in relation to others in the world’.¹³ In particular, some stories of law embody paradigmatic dilemmas that confront and expose the bottomless chasm between our professed values and actual practices.¹⁴ They confront the body politic with fundamental questions of responsibility, representation, recognition, equality and justice. These are stories ‘in which the community defines itself, not once and for all, but over and over, and in the process it educates itself about its own character and the nature of the world’.¹⁵ Mandela’s trials constitute those singular national occasions in which a resistant subject confronted South Africans with foundational questions – what kind of society they are and what kind of political community they want to have for the future. In recounting the story of exclusion and misrecognition of black identity and personhood, the defendant transformed the legal moment into what may be called a counter-constitutional moment that sought to redeem the voices of those excluded by the original act of founding.¹⁶ ‘Recounting differently’, the defendant composes a genealogical account not only of South African justice but also South Africa the nation.¹⁷ In recounting stories of origin differently, i.e., in reconfiguring and retelling South Africa’s violence of law-making and law-preserving, Mandela brings politico-historical inquiry into the orbit of law and legality.

In displacing the gathering effect of the ‘we’, he offers a genealogical and performative reading of the founding moment generally and the law specifically: he uses the moment of the trial to show the gap between law and mere law. In ‘recounting differently’, as Ricoeur observes, ‘the inexhaustible richness of the event’ of founding, he situates himself genealogically and performatively, in the spaces, interstices and speaking positions offered by the system, to expose the intense political and legal crisis haunting Apartheid.¹⁸ Mandela’s critique both uses and mocks the law, he upholds and defeats the law. In this double movement, he stages a genealogical and performative problematization that displaces and reinvents law. Without abandoning Enlightenment values of equality, freedom and liberty, Mandela’s critique of Apartheid law and ‘justice’ takes a genealogical turn; launching a stinging demythologization of the mythical foundation of law – and the desacralization of sacred knowledge.

But what do genealogies do in the context of the political trial? First of all, genealogies are diagnostic tools: as a historical inquiry into the conditions of the present, genealogy reveals the coherence underlying sovereignty, the subject, institutions, discourses and identities as contingent and contested.¹⁹ As a diagnostic or analytic tool into the conditions of the present, genealogy excavates submerged juridico-political crisis into an arena of visibility and shows the relationship between the practices of the present and the submerged crisis of the past.²⁰ The political trial is simply a surface manifestation of that submerged crisis, a crisis of sovereignty that makes an appearance on the normative structures of the system once in a while. By tracing the conflict that rages beneath law’s normative mainstays to the submerged crisis of the past, genealogy historicizes the juridical realm and exposes the contingency that lies beneath the coherence of the normative order. It brings that submerged problem into view ‘so as to do something with them’.²¹ Mandela conceived the trial not as ‘a taste of the law’ or as a site of ‘truth-telling’, but, in his own words, ‘as a continuation of the struggle by other means’.²² In all the three trials – from the Treason Trial to the Incitement Trial and the Rivonia Trial, Mandela brings historical inquiry into the orbit of law and legality, with the view to doing something with it, with the view to unlocking, if you like, juridically closed meanings.

Situating himself within, Mandela reconfigures the polyvalent material and spatial configuration of legal discourses to appropriate the tensions and contradictions that plague Apartheid’s legal order. As Foucault writes in ‘Nietzsche, Genealogy, History’, ‘the nature of these rules allows violence to be inflicted on violence and the resurgence of new forces that are sufficiently strong to dominate those in power’.²³ In a passage that encapsulates the kind of strategic move adopted by Mandela, Foucault writes:

The success of history belongs to those who are capable of seizing these rules to replace those who had used them, to disguise themselves as to pervert them, invert their meaning and redirect them against those who had initially imposed them; controlling this complex mechanism, they will make it function so as to overcome the rulers through their own rules.²⁴

Mandela’s reconfiguration of South Africa’s story of ‘origin’, his recounting of the story and history of its laws, his re-signification of the meanings of juridical concepts such as legality, criminality, equality, the rule of law, violence, communism, democracy, etc. is evidence of a certain genealogical logic at work in his defence.²⁵ He denounces the absurdities of Apartheid’s legal order and the false legalism of his trials; he both invokes and protests rights, in a move that Foucault referred to as the ‘simultaneous declaration of war and of rights.’²⁶ Mandela’s deployment of Apartheid’s own rules against those who own them, re-functioning them (to use the Brechtian term), so as to expose the violent underside of legal rules is characteristic of a genealogical mobilization of ‘effective history’.²⁷

Consistent with this genealogical sensibility, Mandela conceives the struggles and confrontations within Apartheid laws, institutions and the social sphere in terms of a race-war that divides the South African body politic along a racial line.²⁸ More over, just as Foucault’s genealogical analysis of power²⁹ draws on a reformulation of Carl Von Clausewitz’s classic aphorism – ‘war is a mere continuation of policy by other means’ – Mandela viewed his trial as a continuation of the battle by a legal means. Indeed, Mandela makes this logic more explicit when he referred to ‘the classic work of Clausewitz’ in the Rivonia trial as one of the intellectual thoughts that shaped his political philosophies.³⁰ He said: ‘The Court will see that I attempted to examine all types of authority on the subject – from the East and from the West, going back to the classic work of Clausewitz, and covering such a variety as Mao Tse Tung and Che Guevara.’³¹

I further argue that Mandela’s strategy of resistance is clearly performative. By exposing the hidden violence that marks the moment of origin, by revealing the performative coup de force that unsettles the law from within, he counters the original performative with a new performative, a fiction with a fiction, to create an occasion for interruption. By referring to a higher law, what Derrida calls ‘the law of laws’, the law to come, that law which is responsive to the ethic of justice and responsibility, he performatively brings into being a new standard of justice that always interrupts the law and opens it up to ‘the incalculable singular demand of justice beyond circumscription by the law’.³² Since his intervention is aimed at creating conditions of possibility for change and transformation, his genealogies are not merely diagnostic. They are reconstructive and transformative. It is here, where genealogy engages in reconstruction and transformation that it takes a performative turn.

Although appeal to humanist ideals of reason, freedom, liberation, truth and democracy are pervasive in his defences and elsewhere in his writings, Mandela’s mode of critique and struggle are both performative and genealogical.³³ In both the Incitement and the Rivonia trials, we see forms of critique and political struggle that are genealogical and performative. Without abandoning Enlightenment values of rights and political liberty, Mandela’s scrupulous excavation of the constitutive and regulative conditions of Apartheid law takes a genealogical and performative turn.

If the Enlightenment has given us human rights, political liberties and responsibilities, it would surely be out of the question to want to do away with the Enlightenment project. But it may also be necessary not simply to affirm but to question the values it has given us … The imperative remains … they have given us our language; our language of responsibility.³⁴

While Foucault rejects the idea of resistance in the name of a new law or a moral code, and somehow appears to exaggerate the effectiveness of disciplinary normalizations, he nevertheless endorses the strategic appropriation of the organizing concepts and normalizing procedures of law as a counter-power and counter-discourse. As Timothy Mitchell put it, ‘disciplines can breakdown, counteract one another, or overreach. They offer spaces for manoeuver and resistance, and can be turned to counter-hegemonic purposes.³⁵ In using and critiquing these values, Mandela is doing exactly this – using the spaces offered by enlightenment ideals ‘for manoeuvre and resistance’ to re-politicize the juridical realm and create conditions of possibility for intervention and critique. Through a productive coupling of performative genealogies with Enlightenment values, he slips under Apartheid’s normative mainstays to expose the violence it neutralizes and renders inaccessible while critiquing the terms of its rationality.

Jurisdictional Objections: Opening up Space within Space

In The Human Condition, Hannah Arendt writes, ‘Wherever the relevance of speech is at stake, matters become political by definition, for speech is what makes man a political being’.³⁶ Whereas one can still communicate without speech, Arendt maintains, ‘No other human performance requires speech to the same extent as action’.³⁷ For Arendt, therefore, political action proper requires a form of speech that reveals the appearance of the acting subject ‘in the human world’. However, political action is not solely restricted to the domain of speech. In her book, Just Silences, Marianna Constable observes that ‘silence is not always an absence of voice’.³⁸ It can be heard as voice of consent or dissent. Identifying a paradox often appropriated by regimes in silencing competing voices from being heard as intelligible voices, she writes, ‘the empowerment that is to come with voice is a power that cannot be conjured without first being asserted; but the voice that asserts or demands power must in some sense be already empowered’.³⁹ This is precisely the paradox that animates the setting into motion of the judicial machine with the view to achieving repressive political goals.⁴⁰ The courts offer political defendants the very stuff they intend to deny them: hearing and visibility.

In political trials, ‘jurisdiction’ matters precisely because of the opportunity it offers for contestation.⁴¹ The debate over whether the court is a competent court of jurisdiction to examine the matter and determine its merit, or whether the matter is justiciable in the first place, etc., provides the resistant subject with the opportunity to slip into the normative structure of the order – unravelling the dirty linen underneath its symbols of legitimation. If the Incitement Trial was aimed at eliminating resistant voices from being heard, in reality, it did exactly the opposite: instead of silencing Mandela and others, instead of suffocating black liberationist narratives and discourses, the trial offered them a space for hearing and visibility, allowing them to filter stories of injustice and indignation into the court of world opinion.⁴² In his essay, ‘Silence in the Courtroom’, Andrew Green writes this about the trial of Socrates: ‘Although the trial represented an attempt to silence the critic … the speech survived for the next two and a half millennia – a solid refutation of the Athenian government’s ability to quiet a voice of dissent.’⁴³ In this trial, a subject whose voice is usurped and whose discourse marginalized is given an opportunity to re-create himself as resistant and to negotiate his relation with the law. It enabled him to both resist and claim authority. Of course, the court would eventually silence foes of the state through incarceration or other measures, but the ‘hearing’ proper provides precisely that – a hearing and visibility through which they can offer an account of themselves, in their codes and dialects, through their discourse.⁴⁴

Mandela begins his politicization of the judicial space by establishing rapport with the court. He assures the judges of his highest respect for them and the law. In carving out space for action, a political space within the legal space, he mounts a generative objection that is at once legal and political. From the outset, he reminds the judge that the ‘case is a trial of the aspirations of the African people’ – one that is neither reducible to nor comprehensible within the confines of the trial’s communicative offers. By respectfully submitting himself to the law, warning but not accusing, he defines what the trial is – the trial of the ‘aspirations of the African people’ – and delineates its domain of emphasis: ‘on important questions that go beyond the scope of this present trial’.⁴⁵ Here we have a preliminary political injunction – the subject of the trial is not the tragic hero, Nelson Mandela, who at once claims and resists authority, but South Africa as a whole. It is the crisis of South African sovereignty, the moral degeneration of its institutions of justice, that is on trial. By inviting them out of the restraining domain of the juridical into the political, he deploys the communicative offer of the trial to communicate his experiences, and how Africans in South Africa lost their ‘just place in relation’ to whites.

Asked by the judge whether he pleads guilty, Mandela refused to answer the question directly. Instead, he raises jurisdictional objections: ‘Your Worship, before I plead to the charge, there are one or two points I would like to raise.’⁴⁶ By objecting to the competence of the court to hear his case, Mandela carves out space for the possibility of acting, to enable politics at a site where politics is deactivated, and to turn the destabilizing impetus of the political trial against the very power that abuses the rituals of legality. Questioning the court’s authority to sit in judgment and dispense justice, Mandela asked the judge to suspend the invitation for a plea and made a counter-invitation; inviting the judge into his turf – to take flight into the submerged crisis of sovereignty and its constituent point of South African politics. Speaking as a lawyer, a man of law who at once upholds and contests law, he makes an objection that cannot be ignored: ‘I want to apply for Your Worship’s recusal from this case. I challenge the right of this court to hear my case on two grounds.’⁴⁷

This is how, at the earliest stage of the trial, he refuses to enter a guilty plea, to expand the responsive ranges of this space and this moment:

Firstly, I challenge it because I fear that I will not be given a fair and proper trial.

Secondly, I consider myself neither legally nor morally bound to obey laws made by a parliament in which I have no representation.

The first objection is an internal critique that does not remain internal but transcends. Departing from forms of critique that are possible within law’s frameworks and analytic categories, he creates the conditions of possibility for a critique of law that is neither reducible to nor subsumable within law’s categories. It is a critique that deploys the language of Enlightenment – equality, fairness, judicial impartiality, and the principle that one cannot be a judge in his own case. He says, ‘It is improper and against the elementary principles of justice to entrust whites with cases involving the denial by them of basic human rights to the African people’.⁴⁸

The second objection, however, is a meta-level objection that is both genealogical and performative. It is not a mere denunciation of the inaugural violence of exclusion, it is also a performative claim that seeks, to use Derrida’s formulation, to ‘justify, to legitimate or transform the relations to law, and so to present itself as having a right to law’.⁴⁹ It is an institutive act of intervention that seeks to legitimate itself as law while trying to displace state law. As Emilios Christodoulidis argues, these are meta-level considerations necessary to open up space for an ‘act of resistance [that] registers without being absorbed, integrated or co-opted’ by the system and the discourse it resists.⁵⁰ It is an objection that elevates itself beyond the legal-illegal distinctions into the meta-level critique of the just law and the unjust law, the moral law and the immoral law to ‘resist injustices of assimilation and recognition’.⁵¹ As James Tully argues, only at the meta-level can ‘politics resist and redress the multiple forms of its co-option’.⁵² By elevating the contestation from the level to the meta-level, i.e., from the legal-illegal to the just-unjust, moral-immoral, Mandela appropriates the interruptive force of justice and morality to import a spatiality ‘that cannot be captured, and certainly is not exhausted, in any notion of the political constitution’ to redeem the speaking position of ‘the entire nation’.⁵³

Conceiving his trial as a surface manifestation of a long submerged and much deeper crisis of sovereignty, he excavates the strange singularities that undergirds law’s universality, and unravels the incoherence of the order. He identifies gaps, tensions, discursive dynamics and assemblages that reveal how the coherence of Apartheid’s judicial order is contingently articulated.⁵⁴ To create a line of flight for forms of critique that go beyond the crisis that manifests itself as the surface effect of a much deeper problem, he begins from forms of critique that are possible within. But to transcend ‘the multiple forms of its cooption’, as Tully says, to resist the confines of the deliberative offer, he instigates a crisis that cuts the ties between the subject and the legal order and obliterates their reciprocal obligations.

As a black defendant before Apartheid law, Mandela enters the deliberative framework of the trial with a speech impediment. In spite of procedural and substantive safeguards enshrined in Apartheid’s juridical codes, Africans in South Africa, like the plebeians of the antiquity, are subject to injustices of misrecognition. The founding violence that institutes an exclusionary grid of intelligibility subjects the excluded to epistemic and hermeneutic marginalization that cannot be redressed in law. The political philosophy of white supremacy and racist discourses that have become normative and quotidian effectively socialized and racialized institutions of law and justice. Within that racialized and socialized institutional paradigm, the black body represents a problem and a danger. For Mandela, the concern here is what Fanon refers to as the dangerousness of being identified with a danger.⁵⁵ It is not the law as such that is a problem, but the dehumanized black being that is before the law which creates a problem for law. It is Mandela’s explication of what W.E.B. Du Bois calls ‘existence as a member of a racial group deemed problem people’⁵⁶ and the epistemological permutations of this dynamics that is the focus of this section.

Mandela’s first objection – ‘I fear that I will not be given a fair and proper trial’ – is not merely an internal critique suggestive of biases and prejudices, it is not even a concern with the politicization of the administration of justice. It is an objection to the impossibility of justice under Apartheid, a claim expressive of the Fanonian ‘anti-black racial gaze’⁵⁷