The African National Congress and the birth of constitutionalism

Two new books illuminate constitutionalism in South Africa, one of the main experiments in late-twentieth-century constitutionalism, and thus a major focus of comparative constitutional law scholarship. Both are by black South Africans who came of age and were educated in the post-apartheid era, and who have a rather different perspective on that experiment from those like myself who heralded it as a transition from a long period of authoritarian rule to liberal democracy. Both shed their light not by focusing on the apartheid era, or even much on the post-apartheid era. Rather, they bring to our attention the first attempts at constitutionalist lawyering made by black South African lawyers in the first half of the last century. And both do so through a biographical account of these lawyers’ political as well as legal practice—Bongani Ngqulunga through an account of the life of Pixley ka Isaka Seme (1881–1951), the founder of the African National Congress (ANC) in 1912, and Tembeka Ngcukaitobi through the biographies of Seme and several other lawyers also instrumental in the founding of the ANC. For these lawyers, the major issue was the large-scale dispossession of law inflicted on the majority black population. As Solomon T. Plaatje, one of their number though not a lawyer, memorably started his 1916 book Native Life in South Africa, Before and Since the European War and the Boer Rebellion: “Awakening on Friday morning, June 20, 1913, the South African Native found himself, not actually a slave, but a pariah in the land of his birth.”1 Plaatje (1877–1932) was a novelist, a journalist, a linguist fluent in several languages, and the first Secretary-General of the ANC in its original incarnation as the South African Native National Congress. His book focused on the 1913 Natives Land Act, enacted by the first government of the Union of South Africa. While by no means the first piece of legislation put in place by the white minority governments of South Africa to force expropriation of land owned by the majority black population, the Act was much more draconian than its predecessors. It prohibited black South Africans from owning or even renting land outside scheduled areas and reserves, in effect confining 93 percent of the population to 7 percent of South Africa’s land. Both Plaatje and Seme were remarkable men, not only for what they achieved in their careers but also in that they were able in the first place to equip themselves for their achievements. As was the case during the apartheid era, the political economy of South Africa was designed to maintain the majority population in poverty as a reserve army of labor for whites, educated only to the point that fitted them for the kinds of work for which they were considered suited, whether on farms, in the mines, or as servants. Plaatje was thus largely self-educated. Aged 17, the orphaned Seme, with no financial resources of his own, managed to get across the ocean to a school in Massachusetts, then to Columbia University where he graduated with a bachelor’s degree in 1906. Thereafter he was admitted to the BCL degree at Oxford. But he did not complete the degree. Instead, he completed his training as a barrister at the Middle Temple, returning to South Africa in 1910, where he was admitted to practice as an attorney in the former Boer colony of the Transvaal. That was a momentous year. The former British colonies and Boer Republics had been brought together in the wake of the Boer War to form a unitary state, the Union of South Africa. Black South Africans were excluded from the franchise with the exception of the Cape where they and “coloured” (mixed-race) South Africans were on the common voters roll subject to a property and education qualification not applied to whites; a place constitutionally protected by the Union Constitution in the requirement that they could be removed only by a two-thirds majority of both Houses of Parliament at a joint sitting. The government immediately began enacting statutes that would ensure white supremacy in economic and social life, including the Natives Land Act. The Union of South Africa in the cause of entrenching white power spurred Seme’s drive to unite various black organizations into one political force, the first black nationalist movement in Africa. The leadership of this organization was largely composed of lawyers. They were deeply committed to ideals of constitutionalism, indeed more committed than their British masters whose legal order provided the model for the ANC’s understanding of these ideals. Their political struggle was thus organized around these ideals, which provides the basis for Ngcukaitobi’s claim that the early years of the ANC gave “birth” to constitutionalism, not merely a South African constitutionalist tradition but twentieth-century constitutionalism writ large. His excellent book sets out the political and legal contributions of five such lawyers, while Bongani Ngqulunga focuses on Seme, not only because of his outsized political role but also because of the pathos of his roller-coaster career. Seme was capable of playing hardball with his political colleagues, which meant that he was sometimes on the receiving end of similar tactics. He was also capable of negligent and corrupt practice, with the result that for a long period he was struck off the roll of lawyers. He died in 1951, lonely and almost destitute, and Ngqulunga’s equally excellent book seeks to resurrect his contribution to the overall project that Ngcukaitobi claims gave birth to constitutionalism. This is a bold claim. To start, given their model, the lawyers’ understanding of constitutional ideals will seem modest, to say the least, by comparison with the ideals that drove the surge in constitutionalism in the late twentieth century, notably in the 1996 South African Final Constitution. With the exception of the franchise protection in the Cape (and the entrenchment of the English and Dutch, later Afrikaans, languages), the legal order was premised on Westminster-style parliamentary supremacy—that is, no entrenched bill of rights in a written constitution. As a result, the validity of statutes could not be questioned in court, except, as happened in 1936 and again in the 1950s, on process grounds deriving from the entrenchment of the Cape African and coloured vote. Legal challenges were thus confined to the implementation of statutes in terms of common law values associated with the ideal of the rule of law and formal equality before the law. The 1996 South African Final Constitution, in contrast, like others in the surge, was informed by a sense of the inadequacy of that kind of legal order to check a government willing to use law as an instrument of oppression, and thus of the need to entrench rights, including rights to substantive equality, and to give judges the explicit authority to test statutes for their validity against their understanding of what those rights require. In other words, late-twentieth-century constitutionalism might well seem not a fulfillment but a near-unrecognizable enhancement of the constitutional understanding of the ANC founders. Ngcukaitobi is well aware of this. He is one of South Africa’s leading constitutional litigators. Appointed this year as a senior counsel at the age of forty-one after only eight years in practice as an advocate, his legal experience is of appearing before courts well steeped in the doctrines of late-twentieth-century constitutionalism. But his claim for the birth of that kind of practice in the efforts of Seme and his fellow activist lawyers while bold is far from audacious, informed as it is by his own experience of growing up in circumstances of poverty and oppression, and of the continuity he sees between what he does in court and the efforts of his predecessors.2 At the beginning of his book, Ngcukaitobi defines constitutionalism as “a system of government according to laws that are fair and informed by principles of justice.” But, he emphasizes, constitutionalism did not “emerge as an alternative to political struggle” since it was an “integral part of that struggle” (p. 5). The main title of his book—The Land Is Ours—is somewhat ironic since the profound substantive injustice in the legally unassailable dispossession wrought by Natives Land Acts remains to this day a focal point for political struggle, including struggle over the Constitution and its provision that protects property rights. But the title reflects a moral and historical claim that Ngcukaitobi argues should be fulfilled through the law and the Constitution. As he signals, his argument leads to the conclusion that “the unfinished struggle for land can only take place through a framework of law” (p. 5).3 However, his summary of that conclusion at the end of the book contains a tension, even a paradox. On the one hand, he suggests that the ANC lawyers could ensure “the just function of the rule of law” by using the tools of their legal training in practices “anchored in the daily struggles and experiences of blacks,” all this, recall, despite the fact that the validity of the statutes through which the injustice was perpetrated could not be questioned. On the other hand, he suggests that their practice, while indispensable to this just function, was futile. They learned that the judges who heard their arguments were but “an extension of empire” and that the rule of law “could be turned into an instrument for rule by the powerful.” For most of the twentieth century, the rule of law in South Africa amounted to the rule of “conquest”—of might over right (pp. 272–273). This tension is well worth highlighting because it could be said to amount to the paradox of the rule of law, perhaps of constitutionalism itself. The ANC lawyers knew that they could not bring about regime change in the courts, which is why they founded an organization to mobilize political opposition to the system of white supremacy that the Union Government was entrenching. They were also well aware that their political struggle had to be waged not only on different levels but also on different fronts, both in South Africa and in London in appeals to the King, to the imperial Parliament, and to government, as well as to the British public through the media. Both books illuminate the link between suffering on the ground, the legal struggle in the courtroom, and the political struggle waged outside; more precisely, between the way in which the politics of the legal struggle translated suffering on the ground into the politics of the extralegal struggle, by which I mean not illegal struggle but simply political struggle outside the courtroom. Notable here are the concerns that local authorities had about that legal struggle. When Alfred Mangena (1879–1924), the first black South African to qualify as lawyer and also one of the main actors in the early years of the ANC, applied to be admitted to practice as an attorney in the Transvaal, the Law Society of the province opposed his application despite the fact that he had previously been admitted to the Bar in London, where he had done his legal training. Among the Society’s reasons was that the policy of the Transvaal government was to “discourage litigation among [black South Africans] . . . and to encourage them to come to the minister for native affairs and his native commissioners with their grievances as far as possible amicably or by means of the native courts.” The judge responded that since Mangena fulfilled the statutory qualifications for practice, it was not his call but the legislature’s as to whether it was desirable that black people be admitted to practice (Ngcukaitobi, pp. 100–101). Even once admitted, a black lawyer’s practice remained fraught with racism. When a white woman who had accused a black man of making indecent advances to her refused in court to answer questions put to her by “that man”—Mangena, the accused’s lawyer—the magistrate informed her: “That Kaffir is an officer of this Court. He has been admitted by the Supreme Court to practice as a solicitor. You must understand that a black man has the same rights as a white man in this country” (Ngqulunga, pp. 72–73). “Kaffir” was the derogatory term used by whites for a black person, not only in common speech but also in many statutes at that time and throughout government.4 In my view, the magistrate’s use of the term at the same time as he affirmed that black South Africans had the same rights as white South Africans illustrates perfectly the tension which lay at the heart of the South African legal order. It speaks to the official second-class status of the majority population, which was achieved by understanding them as equal before the law to the white minority, except insofar as they had been stripped by law of their rights. Put differently, black South Africans were second-class citizens in that they had one foot in the space of designated inferiority in political, economic, and social life and a toehold in the space occupied by the white minority. Their limited citizenship amounted to making demands as of right in a court of law, the private side of citizenship captured in the figure of the “legal citizen”—the person who is entitled to sue and be sued in certain courts.5 This side is private by way of contrast with the public side, that is, the entitlement to participate fully in the political life of your country. But even though black South Africans were confined to private citizenship, and even though they were by law stripped of many of the features that whites as private citizens enjoyed, their toehold was significant, which explains the Law Society’s opposition to Mangena’s application. The tension that the toehold created made possible the legal practice in which resistance to the implementation of discriminatory laws could be based on the recognition that black South Africans had “the same rights as a white man in this country.” For, if one is legally recognized as having full status for some purposes but not for others, the parts of the law that seem to relegate one to second-class status are thrown into doubt by those that do not in any case in which a challenge is brought to the former. It was on this basis that human rights lawyers during this and the apartheid era put their challenges to the implementation of segregationist and political oppressive statutes. Such challenges were largely unsuccessful, which is why Ngcukaitobi says that “black lawyers soon learned . . . [that] the entire edifice of the judiciary operated as an extension of Empire.” But even when unsuccessful, they brought the lived experience of discrimination and oppression into an official forum and exposed its horrors in light of ideals to which the political and legal order (and the Roman-Dutch traditions which the Afrikaners cherished) claimed to be committed. And that kind of argument then informed the arguments made in extralegal political struggle. For example, Plaatje’s Native Life in South Africa, while not written by a lawyer, reads like a legal brief, as it in fact was, though an unusual one. He started writing the book as part of the attempt to the British public as a of the ANC to London in to as it to the imperial government against the Natives Land Act. power in its of this legally unassailable wrought its substantive injustice through the of official of Such laws were not only in that they on the ground, through of the experiences of black South but also in a more legal of large-scale dispossession and of this could not be out other than in a with the in of the process as if they were a law themselves who need have no for the of those at the of their This official in white to the of the people off their land by their at in effect But what should one when the judges rule by and in of the state, and when the and their That when to the law is a instrument of This conclusion seem as Ngqulunga in 1936 the Union Government in the Native and Land Act while the of land to black South also the process of land dispossession in by the 1913 Natives Land as he also this law was by the of Natives Act . . . which removed African voters in the Cape from the common voters the to equal political rights for black people in South (p. The of the ANC in to to is, a kind of in this light But much more than the of the ANC’s in to bring about the end of white was that the that Seme’s in the ANC, by his fellow lawyer and in the to the system with the ANC as the of a (Ngqulunga, the way in which the politics of legal struggle informed the politics of the extralegal struggle to throughout the apartheid period to the of ANC lawyers, most notably The that it is to the of those subject to law that they be able to the to account by making their demands as of right the of legal and that extralegal political struggle should be in part informed by that the be in this throughout the apartheid era and the of the 1996 South African Final Constitution. for example, who came from a had the at some point in the and one of South Africa’s leading lawyers. the at the which in of life for ANC of the struggle, including in the of Act, in to but was found and to life a to the court that his to was not to be Rather, in the of discriminatory the of space for legal political and laws that made possible long of he did not that he could the way . . . had to do during the And when he to to the Bar which had to for he When an does what I have his is not by any for the law because he to by he On the it an of will to his deeply of and he that only when he the to himself, his political no to do He does it not because of a to be but because to do for be But who that during the he not to take this that he the struggle in the courtroom, where people could this of a judge for the rights of the In other words, in the space for legal opposition to the apartheid laws and it that the legal struggle be waged with the extralegal struggle and with the struggle. It is also that one of counsel at the on to South Africa’s most human rights advocate, which his place in as the first of South Africa’s Court. In with others founded the Legal which remains to this day South Africa’s public human rights law In an with the Ngcukaitobi not only his own early legal training at the but also his for during the year he as one of at the Court. At the end of a long of the for his Ngcukaitobi just found as a person, and also his to to the Constitution and it must be and the Constitution, to should be human outside the The paradox of the rule of law that from just this contrast between and outside the law. the law, the is committed to the of legal struggle, which an of the authority of the law, even when it is the law of a deeply In that struggle, as the human rights lawyer has and and in the both to the and regime change is not in the Since such are also human the they are thus by though not of the same as in to in the time before he in both illegal and legal As I this is also the paradox of constitutionalism. As a judge of South Africa’s out in his the most our legal system in similar to then call our legal system a or a because of these His do The point is not that our system of law is, like apartheid law, but that even a system of law, in like can to To the an into this As he and other public lawyers, would have been no of to from the edifice of apartheid law. And the resistance to injustice would have no against That a for in understanding it are to in the of human rights lawyers are all from the War But both books that is an continuity between the lawyering of Seme, and others through that to In the books to understand that constitutionalism is about which should some of Ngcukaitobi’s “a system of government according to laws that are fair and informed by principles of (p. 5). is a system of government that ideals of and in such a way that those subject to laws can as of right that the the laws themselves and their implementation by to those ideals. It does that is, that the laws will be and informed by principles of (p. 5). But it does an capable of and injustice to the as long as are lawyers who are committed to its ideals. And with that Ngcukaitobi’s claim that the of these first ANC lawyers gave birth to constitutionalism is bold but I and Tembeka Ngcukaitobi for on a

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