Identities, Politics, and Rights

Nothing Left but Rights: Law in the Struggle against Apartheid

Nothing Left but Rights: Law in the Struggle against Apartheid Richard L. Abel The struggle against apartheid was one ofthe great moral dramas ofthe twentieth century. Rarely have good and evil been so unambiguous, the stakes so high, and the conflict so long, bitter, and costly. Race (and gender) has dominated history since World War I almost as much as class and nation did before that watershed. The century began with an unquestioning acceptance of racism, both Jim Crow laws and colonialism . Midcenturywitnessed genocidein the name ofracism. Desegregation and decolonialism after World War II began the dismantling of racism. Apartheid was its last bastion for several decades. The Setting Law played a central role in the struggle against apartheid for several reasons. First, other arenas were effectively closed to Blacks. Whites had arrogated a monopoly of political power from the moment they settled at the Cape in 1652. The Nationalists completed the exclusion of Blacks by stripping the Cape Coloured of the franchise in 1957. Although P. W. Botha's 1983 constitutional "reform" granted Indians and "Coloureds" separate houses in a tricameral Parliament dominated by This chapter is based on fieldwork in South Africa in 1990 and 1991. I am grateful to the University of the Witwatersrand Law School for hospitality and assistance; the lawyers, parties, and organizations involved in the struggle against apartheid for their time and access to documents; and the UCLA Academic Senate, the UCLA Law School Dean's Fund, and the Law and Social Science Program of the National Science Foundation (SES 9012250) for financial support. A full account of the ten cases briefly discussed here appears in my book Politics-by Other Means: lAw in the Struggle Against Apartheid 1980-94 (New York: Routledge, 1995). 239 240 IDENTITIES, POLITICS, AND RIGHTS a white President's Council, Africans were relegated to subordinate political roles in urban townships and rural homelands, whose regimes the long-suffering subjects accurately repudiated as impotent and corrupt . Extraparliamentary opposition was tightly controlled through the banning of mass organizations (notably the African National Congress , or ANC), the passage of increasingly draconian security laws, and the declaration of the State of Emergency in 1985 (renewed annually through 1990). The governmentcensored allforms ofpublicexpression , eventually barring foreign reporters from scenes of unrest. Despite the courage ofindividual cadres, Umkhonto we Sizwe (MK; Spear of the Nation-the armed wing of the ANC) never seriously threatened the hegemony of the South African Defense Force, which outgunned the combined armies of all the rest of black Africa. Indeed, South Africa freely wielded its military might not only within its bordersbutalso throughoutthefrontline states (Namibia, Angola, Mozambique , Botswana, Zimbabwe, and Zambia). Second, the white regime loudly proclaimed its own fidelity to the rule of law. Liberal ideals were prominent, sometimes even dominant, during the half century between the formation of the Union and the National Party's 1948 electoral victory. When the Supreme Court rebuffed the government's extension of apartheid to the franchise in 1952, the Nationalists expanded and packed the Appellate Divisionexactly the legalistic strategy Franklin D. Roosevelt had threatened (for different ends) two decades earlier. Comparison of the two countries does not always show us to advantage. At about the same time that the United States was prosecuting communists under the Smith Act and House and Senate committees were persecuting them through hearings , South Africa launched a treason trial against 156 leaders, intending to destroy the opposition through legal means. Unlike American judges, however, their South African brethren acquitted all the accused . In 1968 the South African Department of Foreign Affairs responded to international criticism by publishing a book brazenly entitled South Africa and the Rule of Law. For more than forty years the government constructed the legal edifice of apartheid-a regulatory structure whose complexity rivaled that of the most sophisticated tax code or protective legislation.1 1. For an assessment of South Africa's pretensions, see David Dyzenhaus, Hard Cases in Wicked Legal Systems: South Afriam Law in the Perspective of Legal PhilOSlJPhy (Oxford: Oarendon Press, 1991). NOTHING LEFT BUT RIGHTS 241 Third, the opposition enthusiastically embraced legality as both a principle and a strategy. The African National Congress was a legal organization for half a century before it was banned. In 1952 (almost a decade earlier than the American civil rights movement) it launched the Defiance Campaign, a nonviolent strategy inspired in part by Mohandas Gandhi's practice in both South Africa...