Reading Choreographies of Black Resistance: Courtroom Performance as/and Critique

Chapter 10
Reading Choreographies of Black Resistance: Courtroom Performance as/and Critique

Joel M. Modiri

Law creates the space, the subjects, the choreography, the words, the incentives, and the pleasures of the everyday practices of domination and submission.1


This chapter joins the call to reflect on the courtroom as a space of resistance through an excursion into the history of the political trials of black radical revolutionaries in South Africa and the United States. I shall draw on Frank B. Wilderson’s account of the trials of Black Liberation Army (BLA) soldiers in the United States in the late 1960s up until the early 1980s and extend his analysis further through an engagement with the 1976 trial of members and student leaders of the Black People’s Convention and South African Students Organisation (known as the BPC/SASO Trial), and specifically Steve Biko’s testimony in that trial.2 True to Michel Foucault’s insight that ‘[w]here there is power, there is resistance’,3 the courtroom in these trials is appropriated and transformed from a site representing the institutional reinforcement of unjust power and legal violence to a site of struggle, where black resistances to racial oppression are choreographed and performed. In recalling these trials, specific attention will be paid to the tactics by which the black radical activists resist and disrupt the logics, mechanisms and protocols of the court and by extension, of (the) law itself. Attention will be paid as well to those instances where they appropriate and reclaim the time and space of the courtroom for the articulation and enactment of their political ideology.

I shall then proceed to read those acts of resistance performed in the courtroom as forms of legal critique operating in the guise of a ‘general jurisprudence’ and standing in the tradition of critical race theory. This reading relies on Wendy Brown’s argument on the timeliness of critique, and its indispensability in times of crisis and darkness, as well as Foucault’s ruminations on critique, where he draws a connection between critique and transformation. Brown and Foucault’s combined formulations of ‘critique’ will then also be extended into a brief exploration of the relation between theory and practice, specifically as this relation pertains to a left critique of law. Through this reading, and with reference to the notion of critique, I claim that traces of critical race theoretical critique can be discerned in the moments of resistance that transpire in the political trials of the BLA and in Biko’s testimony, where the setting of power is suspended and inverted in such a way that the court, as the aesthetic and institutional representation of the Law, is itself put on trial. Put another way, I will suggest that the acts of resistance encountered in the political trials of the black radicals discussed below emerge from a decidedly critical legal standpoint (specifically exhibiting the core themes of critical race theory) in order to underscore the relation between resistance and critique as a historic feature of black struggles against white supremacy.

After establishing this important connection between resistance and critique, the chapter moves from a commemoration of past heroes and struggles to a contemplation of our legal and political future(s) through an examination of the contemporary problematic describable as the rise of legalism in social and political discourse or the juridification of politics and human relations that has taken hold in ‘post’-1994 South Africa.4 Here the aim will be to explore and problematize the ostensible shift from the black radicals’ view of the court as a site of oppression, invested in the reiteration and legitimation of racial subordination against blacks to the liberal ‘post’-apartheid5 view of the court as a hallowed space exclusively bearing both the promise and capacity for racial justice and of the judiciary as the appropriate final arbiter of political and social conflict.

Although this chapter is a response to a conference invitation dedicated to the fiftieth anniversary of Nelson Mandela’s famed testimony as an accused in the 1963–64 Rivonia Trial, the omission of Mandela and the Rivonia Trial from this analysis is, save only for one brief instance, not accidental. It is, first of all, political because this chapter is written from a black radical socialist political perspective that Mandela was known to be intensely hostile towards and dismissive of while he was on Robben Island.6 Halfway through this chapter, I take issue with the fetishization of law and constitutionalism within the South African public imagination. To the extent that this fetishization is central to a conception of national patriotism and constitutional citizenship in South Africa of which Mandela is the most iconic ideological representative, the exclusion of his politics and testimony is crucial to the consistency and integrity of my text. Indeed, the canonization of Mandela and its association with the post-racial legal optimism and multicultural reformism embodied in the Constitution is a significant part of the rise of the culture of legalism that is being contested in this chapter. Echoing Foucault again, this chapter might then itself also be taken in the spirit of a certain resistance against dominant narratives of post-1994 South Africa and, specifically, the mythologization and idealization of Mandela within those narratives.

The broad concern provoking this enquiry, and specifically the reason for the juxtaposition of the critical acts of resistance in the courtroom with the turn to legalism and the juridification of politics, is what I sense as the loss of faith by certain parts of the left in the viability of a more radical political future in the face of the seeming givenness of the present and inescapability of the status quo of liberal democracy and neoliberal capitalism. Returning to this archive of struggle in the black radical tradition might revive or reinvigorate current political struggles, discourses and movements in South Africa to expand the width and depth of their projects to encompass deeper, more substantive, conceptions of freedom, equality, democracy, transformation and community. Also underlying this chapter is the continuing search for a critical race jurisprudence and for a future refiguring of racial justice, equality and freedom for a ‘post’-apartheid South Africa that seemingly no longer recognizes blacks’ historical claims for justice, reparations and redress. This chapter thus stands at the intersection between past and future, taking the opportunity not only to celebrate, but also to mourn.

Blackness in the Courtroom: The Subversion of the ‘Law of White Spaces’

Frank B. Wilderson argues that a defining feature of the political trials of the black insurgents of the BLA who had, from the 1960s to the 1980s, waged a guerrilla struggle, against the oppression of blacks in the United States, was the ‘moment when it became de riguer for revolutionaries to refuse the role of defendant and assume (while still in custody and often handcuffed) the role of prosecutor and judge – with the public gallery as jury’.7 This reversal in the ordering logic of the court for Wilderson constitutes an ‘unparalleled inversion of jurisprudential casting in which the court itself (and by extension the US government) became defendants’.8 It is particularly this aspect of putting (the) law itself on trial, of calling its claim to objectivity, reason and fairness into question, and of troubling its presumed legitimacy, that is crucial to the connection between acts of resistance and legal critique about which more will follow in the next section.

In order to sustain the theoretical reading that follows, we must briefly turn to an understanding of how the courtroom is conceived of within the black radical imagination. Due to the extent to which the law and legal rules themselves were (and still are) deployed for the purposes of institutionalizing racial hierarchies, the courtroom as the symbolic personification of law and legal culture and the institutional enforcer of legal rules, loses its disguise of apolitical innocence and takes on another, more insidious figure in the eyes of black revolutionaries. Rather than being seen as an isolated institution, autonomous of racial power and white hegemony, the courtroom is understood as a functionary of that power and that hegemony and as a powerful site for the legitimation and normalization of racist legal systems, such as in the case of Jim Crow USA and apartheid South Africa. Rather than being seen as outside of the social dynamics of racial stratification and Western imperialism, the court is understood as deeply imbricated by those dynamics, as a space for the centralization and affirmation of Western and white cultural norms and values, and indeed for the protection of actual white interests. Examples of this view of the courts abound, for example, in Bruce White’s phrase ‘black robes, white justice’ in reference to the US criminal justice system and in Nelson Mandela’s description of himself as a ‘black man in a white man’s court’.9 Applications made in cases such as S v. Collier10 requesting the recusal of a white judge based on the contention that his membership in a dominant racial group renders him incapable of producing a race-neutral and, thus, ideally fair outcome in racially contested disputes also emanate from this view.

As highlighted in the epigraph above, the law and the legal system are conceived as primarily defined and structured by white social power. It follows then from this understanding that the courtroom is viewed as being part of the system against which the struggle for black liberation is being waged. Together with the police and the prison, it is traditionally seen as part of the institutional machinery of the racist state, not as a safe haven for the vindication of the rights of black citizens. The reasoning here is simple: if the law and other law-enforcement institutions are not neutral, nor is the court. Hence Sherene Razack’s insistence that courts should be understood as situated spaces, spaces deeply imbued with a specific racial, cultural and gendered perspective. Razack argues therefore for a view of the courtroom as one key site where encounters between dominant groups and subordinated groups are repeatedly staged; that is for a view of the courtroom as chronically characterized by power imbalance.11 This particular argument is, of course, applicable not only to historic political trials in authoritarian regimes, but also in respect of ordinary courtroom disputes dealing with, for example, contracts, evictions and divorces in liberal-democratic states.

In her later work, Razack speaks of a process by which a place or space ‘becomes a race through the law’.12 In contexts such as apartheid South Africa or Jim Crow USA, where law was organized expressly around white supremacist principles, the spaces (such as the courtroom) constituted by and for law, by default and design, inevitably functioned to reproduce and maintain racial hierarchies. When a space has become a race in this way, Raquel Montoya-Lewis tells us, not only are the effects of race and racism on law and legal reasoning either negated and ignored or perpetuated and enabled, but whiteness silently assumes normative superiority within that space.13

In the black radical imagination, therefore, the courtroom can be regarded as a ‘white space’ in at least the following three senses. First, in the aesthetic sense that the physical construction of the courtroom relies on a Western European architectural model. Second, in the formal sense of its operations and proceedings being co-ordinated by protocols, dress codes and rules that are patently colonial. And third, in the political sense that the ideal subject of law is cultured and positioned as ‘white’.14 Montoya-Lewis further argues that ‘white spaces’ such as the courtroom function by means of a law, which she names the ‘law of white spaces’, that governs both the conditions for speech, appearance and legal subjectivity as well as the rules for entry and inclusion into the space.15

This view of the courtroom converges with Wilderson’s account of the political trials of black insurgents if not because he explicitly charges the courts as being ‘systematically implicated in the ongoing Black Holocaust’16 but because of the extent to which the actions and words of the black insurgents who were on trial and their supporters stand in open defiance of this ‘law of white spaces’. As we will see, through their acts of resistance, they derange the space of the courtroom and the laws it upholds, claiming it as a terrain of struggle and as a platform for both placing the atrocities and injustices suffered by blacks on the public record and for articulating their political ideology. In this way, they reclaim both the voice and visibility that is traditionally denied to them in legal institutions.

Wilderson captures many moments of resistance in the political trials that he explores. Among the most compelling, he cites one biographical account by BLA revolutionary Assata Shakur, who recalls how members of the black community attended her trial every day in order to ‘watch the circus’.17 The use of the word circus with its connection to performance, play and pretence, exposes law’s complicity in racial injustice as well as its arbitrariness. In this vein, consider BLA member Kuwasi Balagoon’s closing statement in the so-called Brink’s Trial in which he declares openly that this ‘place here [the trial courtroom] is an armed camp [even though it appears to have all] the trappings and props of a court’ and then further goes on to label the judge in his trial as ‘a state-issued clone in a black robe’.18 Consider also Assata Shakur’s own opening statement and specifically her justification for choosing to act as co-counsel in her own case:

I have spent many days and nights behind bars thinking about this trial, this outrage. And in my own mind, only someone who has been so intimately a victim of this madness as I have can do justice to what I have to say.19

Shakur continues in her autobiography to note how deeply struck she was by the paradox that she observed while she was awaiting trial where a pregnant woman was sentenced to 90 days for stealing a box of nappies while the former US president Richard Nixon was pardoned for his criminal involvement in the Watergate scandal without even awaiting trial.20 It is to this paradox that Shakur addresses the question:

What kind of justice is this?

Where the poor go to prison and the rich go free.

Where witnesses are rented, bought, or bribed.

Where evidence is made of manufactured.

Where people are tried not because of any criminal actions but because of their political beliefs.21

The candour and fortitude in both Shakur and Balagoon’s statements reflects the sense of drama, of theatricality, of undressing the law, that Wilderson highlights as one key feature of the political trials of the BLA soldiers. As he writes of Shakur’s account of her trial:

[It] paints a vibrant picture of an intra-mural conversation between Black folks from all walks of life, for whom the court and the trials functioned much like backwoods churches did during slavery. A courtroom of people who joined the defendants in their refusal to rise when the judge came in; folks giving each other the Black Power salute in full view of the U.S. Marshals; Black Muslim men and women spreading their prayer rugs in the corridors of the court and praying to Allah; Black parents explaining the underlying racism of the American legal system.22

In another dramatic moment in Shakur’s account of her trial, we are told that as the judge entered the courtroom, a child looked up at him and then turned to her mother and asked ‘Mommy is that the fascist pig?’23 Predictably, members of the gallery broke out in laughter and applause.

For Wilderson, these various acts of resistance performed in the courtroom need to be understood in the context of the counter-hegemonic politics of the Black Liberation Army and specifically the tacit consensus by the left at that time not to co-operate with legal institutions like the police, prosecutors and judges.24 For him, the uproar caused by the child’s question, the refusal of the defendants and their supporters to stand when the judge entered the courtroom as well as the Black Power salute exhibited a mode of resistance much deeper than merely upsetting court decorum. They also set up an epistemological and jurisprudential challenge, questioning as they do the very legitimacy and validity of the law and the courtroom.

As evidence for this claim he cites the justification given by Balagoon’s co-accused in the Brink’s Trial, David Gilbert and Judy Clark, for why they sat out of most of that trial, appearing only ‘to make statements condemning white supremacy and U.S imperialism’.25 As they saw it, participation in the trial would be ‘to recognise the legitimacy of the court to criminalize political acts’.26 In their view, the US government lacked the legal basis to put them on trial both because their actions were of a political character, and thus had to be resolved politically, and more importantly because of that government’s own illegitimacy on account of its blatant oppression of blacks.27 For Wilderson, their actions registered a rejection of ‘the terms of jurisprudential engagement by refusing the hermeneutics of individual guilt or innocence’.28 As he writes:

In short, they sought to short circuit the court’s disciplinary logic by exploiting their trial … as an opportunity to shift the terms of adjudication from moral questions of guilt and innocence to ethical questions of state power and political morality.29

The designation of these trials as ‘political trials’ is thus noteworthy. They are political because they concern more than the infringement of criminal law codes; instead they raise deeper questions about law’s relation to political morality and structural injustice and showcase a broader crisis in the political organization of a society.30 This is why many BLA revolutionaries put on trial consistently argued for their standing in the court to be recognized as ‘political rather than juridical’.31

This refusal to be constrained by the rigid logic and conservative language of law in favour of a radical politics is repeated once more when the black insurgents who were on trial and the witnesses called to testify against them would begin their testimony by announcing to the judge and jury that they would not answer any questions put to them during the trial, knowing that they would receive an almost automatic prison sentence.32 Here again Wilderson explains these acts of resistance as performing not simply a circumvention of evidentiary rules but also a rejection of the court’s right to convene, to unilaterally determine the questions at issue and the terms of the dispute.33 In his own words, Wilderson reads these acts of resistance in the courtroom as ‘an ethical refusal of the legal system itself, as opposed to a moral objection to legal excesses’.34

Wilderson’s analysis can be extended to Steve Biko’s testimony in 1976 at the BPC/SASO Trial. In the BPC/SASO Trial, nine student leaders of the BPC and SASO were charged with violations of the Terrorism Act after they organized a rally to celebrate the installation of FRELIMO as the ruling party in the government of Mozambique despite an order by the police not to continue with such a rally. Arguably among the historic political trials of the apartheid era, it is often said that what was actually on trial in the BPC/SASO Trial was the Black Consciousness Movement (BCM) itself if one looks at the terms in which the indictment was framed and the type of questions posed by the prosecutor and the judge.35

Records from the trial suggest that it was equally dramatic, with the tone for a tense and antagonistic atmosphere already being set at the opening of the trial when one of the defendants in the trial, Saths Cooper, refused to plead, whereafter the judge refused to allow him to read a statement from the dock and entered a plea of not guilty on his behalf.36 As one report of these trials further tells us:

The accused Africans entered the courtroom singing freedom songs. They raised their fists in the black power salute and shouted, “Amandla!”. Returning the salute the black spectators in the courtroom cried in response “Ngawethu!”.37

It seems then that just as in the trials of the BLA revolutionaries taking place around the same time in the United States, the Black Consciousness revolutionaries in South Africa also choreographed a courtroom performance whereby they would disturb the court’s sense of power by reorganizing its space in terms of the familiar.38

But let us turn to Steve Biko’s testimony in the trial in order to uncover a different choreography, or gesture, of resistance – one that can be discerned only through a close conceptual reading of his testimony. Biko was the main witness for the defence in the BPC/SASO Trial and through his testimony delivered what has been described as the most classic statement of the philosophy and political praxis of Black Consciousness.39 What is remarkable about Biko’s entire testimony is the relentlessly political tenor of its articulation. Throughout the trial he maintains a refusal to translate and thereby distort his claims into the language of law or rights – a refusal that lies at the heart of a counter-hegemonic legal consciousness.

Instead Biko chooses to assert the ‘margins’ not as a space of deprivation or lack but as a ‘site of radical possibility [and] a space for resistance’ in the sense argued for by bell hooks.40 hooks has long called for the margins or marginality to be reconceived and reclaimed as a ‘radical standpoint, perspective and position’ that furthers the aim of ‘oppositional political struggle’.41 For her, the struggle against racial domination requires those struggling to self-consciously inhabit political and ideological spaces from which to best assert ‘an aesthetic and critical presence’.42 In this vein, she calls for a shift from the centre to the margins which she describes as a site of radical openness and as ‘[the] central location for the production of a counter-hegemonic discourse’.43 But hooks ends her argument by cautioning that ‘[l]ocating oneself there is difficult yet necessary. It is not a “safe” place. One is always at risk’.44

This choice by Biko to locate himself at the margins in the courtroom, as part of the community of the oppressed, can be seen as an acceptance of the risk involved in entering a court presided over by a white judge during the apartheid era to defend comrades charged with terrorism while still offering a critique of white supremacy at the same time. Recall for example his exchange with Judge Boshoff on the question of the precise meaning of the term ‘black’ in Black Consciousness thought. After Biko offers a comprehensive explanation of the negative symbolic connotations attached to ‘blackness’ and the choice of the BCM, following the Negritude thinkers, to affirm and signify blackness as a political identity and mark of pride and resistance, the judge sarcastically asks him: ‘But now why do you refer to you people as blacks? Why not brown people? I mean you people are more brown than black.’45 Biko, seemingly unfazed by the ignorance and racism in that question, calmly replies: ‘In the same way I think white people are more pink and yellow than pale and white.’46 Biko’s calmness and poise in the face of the judge’s racist provocations (including his repeated reference to blacks as ‘you people’) shows him to be more cultured and rational than the judge, as possessing traits traditionally understood in the white colonial imaginary as precisely what blacks do not have; as that which whites must teach to blacks in their training to white civilization. Not to mention also that Biko’s attentiveness to history and social context is unparalleled in contrast to the judge’s unschooled opinions and simplistic assumptions.

We see this again, I think, when Biko exposes the superficiality of the judge’s opinion on the influx control laws and his account of crime in the townships.47 Where the judge is of the impression that influx control laws are useful in controlling the ‘bad elements among the people’ and brings order to chaotic and overcrowded townships ridden with crime, Biko suggests the opposite: that the racially discriminatory nature of the influx control laws (including the degradation of black men having to be strip-searched by doctors) is what aggravates the already existing problems of violence, crime, education inequality and unemployment. Biko here emphasizes the differential vulnerability and precarity of blacks and the imbalances produced by systemically entrenched, legally sanctioned racial hierarchies whereas the judge seems to view the overcrowding in the townships as a choice made by blacks and the crime in those townships as the inherent nature of the ‘bad’ blacks.48

But there is more. I want to suggest that Biko’s most transgressive but also theoretically innovative moments in the trial can be found in the way in which he employs the courtroom as a platform from which to elaborate on the basic tenets of Black Consciousness. Through this elaboration, Biko performs the relation between law and politics differently, explicitly subordinating the former to the latter, defying the court’s linear and rule-bound logic by being more expansive in terms of what is relevant as legal evidence. As a result one can discern in Biko’s testimony, a jurisprudence that is both ‘general’ in Douzinas and Gearey’s sense49 – in its concern for not only the positive law but also the law of law, law’s conscience, and questions of social being and existence – and also ‘generous’ in Patricia Williams’50 and Karin van Marle’s sense51 – in its openness to subjectivity, lived experience, identity and its desire to stretch the law to its limits. Of specific relevance for our purposes are those aspects where he exposes both the racism of the apartheid legal system and the complicity of ‘white society’ in the maintenance of what he calls the ‘total white power structure’.52 To be sure, it is not so much what Biko is doing that is unique; it is where – that is, he is challenging from the inside, the very configurations of power that the courtroom in his time (and indeed even in ours) symbolized, namely the law and whiteness.

Recall for example that in his lucid summation of what Black Consciousness entails, Biko recognizes the role of the law in the ‘institutional machinery’ of racial oppression that restricts, exploits and deprives blacks and his account of how this system generates an alienated black subjectivity (traditionally understood as self-hatred or a feeling of inferiority).53 In that summation he also traces the complex ways in which this system of oppression and this process of subjection begins from childhood and continues well into adulthood, thereby painting a picture of how racism subsumes all facets of human life. But he goes further in his analysis, to show the mutual relation between the oppression of blacks and the privilege of whites. He speaks of white racism as being ‘institutionalised, and also cushioned with the backing of whites’.54 This is how he understands the social construction of whiteness and white racial power:

[A] white child does not have to choose whether or not he wants to live with the white, he is born into it. He is brought up within white schools, institutions, and the whole process of racism somehow greets him at various levels … so whites are together around the privileges they hold, and they monopolise this away from society.55

Black Consciousness is thus premised on a structural understanding of racism, one that maintains the historical unity between racism and white supremacy. Racism-as-white supremacy on this account is not merely a collection of prejudices and biases held by whites; it is a socio-political system and thus can exist beyond its overt legal supports.56 During his testimony, Biko also shows how this understanding of racism is also linked to an anti-colonial African politics. His exploration of the effects of colonial racism also encompasses a concern for cultural imperialism. When asked about what the ‘open society’ he envisages would look like, Biko replies that all that they [the BCM] insist on is:

[A] culture that accepts the humanity of the black man. A culture that is basically sufficiently accommodative of African concepts, to pass as African culture. What we are saying now is that at the present moment we have a culture here which is a European culture.57

In addition to these erudite elucidations of the political and social philosophy of Black Consciousness, Biko’s testimony also contains a firm commitment to black solidarity and consciousness-raising. His entire testimony reads as a stinging condemnation of apartheid and the legal and political institutions that were complicit in its perpetuation.

Thus, what we can see in the political trials of the BLA insurgents and in Biko’s testimony at the BPC/SASO Trial is an insistence on counter-narrative, on naming the political reality of the time with reference to the phenomenological experience of the racially oppressed.58 Such a counter-narrative is delivered in a distinctly political register that exemplifies the joining of two unique modes of resistance that bell hooks has variously named ‘talking back’ (an epistemological challenge to the dominant discourse)59 and ‘loving blackness’ (an affirmation of racial and cultural difference and black identity).60

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