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The Law of the People?

Featured Image: Andile Mngxitama is the National Convenor of the Black First Land First movement.

By De Nero Koffman

This piece of writing was inspired by a very condensed presentation by Andile Mngxitama from the Black First Land First (BLF) movement. During the second day of the Black Lawyers Association Student Chapter (BLAsc), Constitutional Summit on the 3rd of April 2016, the BLAsc delegates had the honour of being addressed by comrade Mngxitama. The topic of course was a very revolutionary one which is to be expected from an individual identifying as a Fanonist. He briefly discussed the nature of the law and his prerogative of it being anti-black in its very essence. Take note that “black” in this context refers to all those who were oppressed so as not to encourage any further division amongst ourselves.

However controversial this may have come across to me initially, the speaker certainly provided compelling arguments to this effect. He made mention of how the drafters of the United Nations Charter, Jan Smuts and many alike were themselves slave owners, thus would not create laws contrary to their own interests unless they could be countered on legal grounds. Though I have established my own views on fundamental rights issues, my thinking was without a doubt challenged. When considering the oppression of black people all over the World, even with our supposed inherent right to human dignity, it is easy to conclude that the law is indeed anti-black.

Having had a legal system such as that of apartheid which violated our very being, we now have a Constitutional Democracy which protects the same people who enacted discriminatory laws to our detriment. This inexhaustible Constitutional protection can be observed dating back to the days of the Truth and Reconciliation Commission which granted amnesty to the people who so grossly violated the human rights of black people. This was rightly challenged in Azapo v President of the Republic of South Africa on the basis of it being unconstitutional but the court found that this was not the case. What then does this say about the interpretation of our beloved Constitution which is revered as one of the best in the World?

Upon proper analysis of the inequality entrenched in South Africa, a deep sense of indignation is aroused within me. This feeling of contempt brings about a question which we should all ask ourselves. Do we continue to rely on a Constitution which places us all on equal footing, while living in a society which does not promote such notions of equality? Until effective substantive equality is promoted as held in the Constitution, I see no possibility of us enjoying the fruits of a truly egalitarian society.

Comrade Mngxitama suggests that the only way out of our prejudiced legal system is to destroy the Constitution in its entirety. As a legal scholar it is patent why I am inclined to fundamentally disagree with this stance as I view law as the thread which holds society together. Nevertheless, when one examines the rigorous and nearly impossible process of amending the Constitution to provide more favourable conditions for the oppressed, this idea seems to become less absurd.

We cannot have a Constitution which protects white owned property at the “just and equitable” expense of black ownership. So what remedies are we left with? Do we attempt to solve our socio-economic problems through using the law, or do we resort to revolutionary means as Mngxitama promotes? One thing is for sure, regardless of what route we take, those who have been maltreated for so many years will inevitably reap the benefits of the country. It’s simply a matter of how long we will accept our current situation.

Condition a dog to eat once a day every second day, then start feeding it once a day every day and it sees this as a reward, little knowing that it is meant to eat twice a day every day. In a similar fashion we have been conditioned to accept less than we’re entitled to.

first published on http://www.blasc.org.za/about-us/

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