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Ethics of discomfort: ‘Becoming-minor’ and ‘the little perpetrator in each one of us’


Jaco Barnard-Naudé is Professor of Jurisprudence and Co-director of the Centre for Rhetoric Studies in the Department of Private Law at the University of Cape Town where he conducts research and teaching in critical post-apartheid jurisprudence. In the United Kingdom, he is the British Academy's Newton Advanced Fellow in the School of Law at Westminster University and Honorary Research Fellow at the Birkbeck Institute for the Humanities, University of London. He is a board member of the Institute for Justice and Reconciliation (IJR) and of the Triangle Project, Cape Town

South Africa continues to be a country in desperate need of reparation. For as long as this need is not addressed, the public sphere will continue to be saturated with a potent mix of the politics of deprivation on the one hand and the politics of privilege and enrichment on the other, all while being structured through and through by Achille Mbembe’s ‘politics of enmity’. This is the persistent legacy of the TRC’s unfinished business that keeps returning to haunt us.

The year 2019 is a big one for South Africa. Apart from general elections, there is the milestone of turning 25. It seems that this fact alone provides a good opportunity to pause and reflect on when and how it all began…

Let me take you back to 1993 and the famous post-amble of South Africa’s interim Constitution, Act 103 of 1993. There is a peculiarity about this act, or rather its enactment, that is often elided in the literature on South Africa’s transition.

The peculiarity consists in the following contradiction: It is that this act, which inaugurated the post-apartheid legal order, was one of the last legislative enactments of the apartheid parliament. Indeed, it was with the adoption of the Interim Constitution that the apartheid government effectively voted itself, finally and thankfully, out of power in an extraordinary moment of what might be termed poetic justice.

Our legal sensibilities may quickly compel us to move to the level of the juridical by pointing out that there was no other way, that this action was necessitated by the principle of state continuity, that it had to be taken for the sake of the continuing existence of the South African state and that it must be remembered that this action was made possible only by the negotiations that would effectively ensure that apartheid’s apparatchiks would not be tried and judged in the ordinary courts of justice.

All of this is true. But I think that the ethical and political significance of the performative contradiction that attended the enactment of the Interim Constitution does not, or does not primarily lie in these, let’s call them “surrounding political and legal circumstances”.

To understand what I would like to call the “true” significance of the enactment of the Interim Constitution by the apartheid parliament, we have to have some understanding of the critical role that parliamentary sovereignty played for apartheid.

The salient point about this parliamentary sovereignty of apartheid is that, at the very least, it consisted of a democratic injustice. This democratic injustice can be stated as another profound contradiction, namely that the “legal” sovereignty of the apartheid parliament was never derived from, and therefore never legitimated by, popular sovereignty.

From this point of view, it must be said that the parliamentary sovereignty of a minority parliament always operates in a zone of illegitimacy, falsity, fiction and indeed, invalidity. But it is not often enough explicitly pointed out that the apartheid government operated under an enormous pretence, a spectacular fraud, an abominable “as if”, namely that its domination of institutionalised politics meant that it operated “as if” it was a majority parliament, “as if” it was constituted by a popular majority through a general election.

It was, of course, the fundamental state racism of apartheid which enabled this “as if”. The pathological ideology that black people in South Africa were not fully human, served as the basis for excluding the black majority from equal belonging and equal participation in the body politic.

The ethical significance of the apartheid parliament’s enactment of the Interim Constitution from this point of view is that it is only in the enactment of the Interim Constitution that the apartheid parliament, government and indeed the white population at large, finally becomes juridically what it always already was socially: a minority.

Now, this juridical becoming minority of the white population in the sphere of political power, of course immediately implies a loss of such power and indeed the giving way of domination. But the very protections that minorities acquired in terms of the 1993 Constitution implies that the loss of power was not complete or total. Indeed, the minority protections that were afforded in the Interim and Final Constitutions and that have been the subject of much litigation since means that minorities participate in so-called “power sharing”. And, as we know, this idea of sharing of the minority in the dominant political power of the majority formed a critical part of the transition to a democratic South Africa. As for private economic power, the matter is, of course, entirely different.

This being as it may, there is in contemporary philosophy a concept that is activated by this notion of the becoming minority of the white population in South Africa. It relates to and sounds similar to such a “becoming minority”, but it is at the same time entirely different from what is entailed in becoming a political minority. It is, rather, the idea, in the philosophy of Deleuze, of “becoming-minor”.

As a first point, “becoming a minority” does not translate, without more, into becoming-minor, although the two can certainly overlap in the sense of a giving way and a giving up of domination and dominance that is implied in both. But what distinguishes becoming-minor from becoming a minority is that becoming-minor involves a fundamental ethical and political shift in disposition or orientation, a shift that amounts, in Deleuze’s terms, to a deterritorialisation which is a “divergence from the standard in terms of which a given majoritarian identity is defined” (there is much that is suggestive for the current “land question” in this concept’s link between territory and identity).

Becoming-minor is a turning away from the oppressive given of a status quo in order to traverse the emancipatory “new”, it is a different way of thinking and thus a different way of doing — one which begins, in fact, with the fact of difference. And to begin with difference is, at its most radical, to give up, in the first place, one’s predilection for and predisposition to dominate and control.

As one of Deleuze’s commentators writes, “to become minor is to jostle the reins of the majority identity in order to investigate new possibilities, new ways of becoming that are no longer bound to the dominant… it is to break with identity… in favour of difference as yet unactualised”.

This means that becoming-minor is a way of being in the world — a disposition — regardless of whether one forms part of a numerical majority or a dominant identity or not. Becoming-minor, then, is a refusal to be categorised, classified, boxed and defined by the structures and pathologies of domination.

When I look at modes of engagement and styles of rhetoric that prevail across South Africa, I think that the white minority has not come very far in terms of becoming-minor.

For one thing, I think that becoming-minor entails a considerable measure of humility and that the possibility of such humility is too often foreclosed by a visceral and fairly melodramatic politics of outrage, indignation and feigned victimhood. Humility does not mean that the only proper mode of democratic engagement on the part of whites is or should be silence — there is a vast field of discursive possibility and range that exists between the extremes of outrage and silence. But humility does imply patience, listening, introspection, a willingness to change and even hesitance.

At the same time, becoming-minor, as a way of being-in-the-world, is not just an ethical task for actual or numerical minorities. Recent events in South Africa have illustrated again the pernicious consequences of the majoritarian attempt to structure politics around essentialist modes of ideological identity politics that are then enacted or rendered more “concrete” by the unconsidered and often violent exercises of power absolutely bent on domination and the erasure of difference.

This kind of authoritarian power politics is ultimately barely different from the style of politics that prevailed during apartheid. So too are the acquisitive, self-enriching and astoundingly ferocious politics of “State Capture”.

There is much to be said for becoming-minor in South Africa and I think that it is precisely the Interim Constitution that prepared the ground for such a becoming-minor and that it did so in its famous Epilogue or Post-amble. Over the years that followed the enactment of the Interim Constitution, much has been said about its poetic, aspirational and visionary language, its use of metaphor and its status as law.

Etienne Mureinik, for one, famously described the “historic bridge” between past and future to which it refers as a ‘cultural’ one in that it provided South African legal culture with a bridge from a place of “authority”, by which he meant to signify the naked and often brutal exercise of power through “legalised” executive violence, to one of “justification” in which the exercise of power must not only be capable of explanation grounded in Constitutional values, ideals and provisions, but also provided by those who wield that power.

The Epilogue of the Interim Constitution spoke of this bridge as being founded on the Constitution as “the secure foundation for the people of South Africa to transcend the divisions and strife of the past” and it expressed the belief that the journey from authority to justification necessitates “understanding” (which it opposed to “vengeance”), “reparation” (which it opposed to “retaliation”), and “ubuntu” which is opposed to “victimisation”.

The Epilogue also famously and controversially stated that the advancement of “reconciliation and reconstruction” required the granting of amnesty in respect of conduct associated with the political conflict during apartheid. This provision, of course, created the legal basis for the still controversial Truth and Reconciliation Commission (TRC).

Commenting on the TRC’s process, the Nigerian writer, Wole Soyinka, asked the following pertinent questions at the time (and I think that these questions are still with us):

How on earth does one reconcile reparations, or recompense, with reconciliation or remission of wrongs? Dare we presume that both, in their differing ways, are committed to ensuring the righting of wrongs and the triumph of justice?”

Soyinka proceeded radically to question whether what he called the “procedural articulation of the known” through amnesty, would truly heal society by achieving the reconciliation that was the goal of its initiators. What lay beneath his critical doubt in relation to the view that the amnesty proceedings would be conducive to reconciliation, was what he called “the missing link” between truth and reconciliation.

That missing link is referenced in the Epilogue as “reparation” and indeed described as “a need” and thus as the necessity of reparation if the new body politic was to survive (at least in its democratic constitutional form).

Many readers are familiar with the recently recirculated argument of Mahmood Mamdani that the TRC’s unduly narrow definition of victims with reference to perpetrators of gross human rights violations during apartheid, not only obscured the need for social justice, but also the responsibility of apartheid’s beneficiaries for such justice and that if the victims were to be defined in relation to the beneficiaries, the victims would be and are the vast majority of black South Africans.

A significant dimension of the violence that ensued during the student protests in higher education between 2015 and 2017, as well as much of the violence that pervades the public and the private sphere in South Africa, are symptoms of a society in which the politics of enmity, as Achille Mbembe calls it, has not yet been superseded by the politics of reparation, as the Epilogue of the Interim Constitution had hoped.

South Africa continues to be a country in desperate need of reparation. For as long as this need is not addressed, the public sphere will continue to be saturated with a potent mix of the politics of deprivation on the one hand and the politics of privilege and enrichment on the other, all while being structured through and through by Mbembe’s politics of enmity. This is the persistent legacy of the business that will have been dealt with, the TRC’s unfinished business that keeps returning to haunt us.

In 1998, Karl Klare termed the process that was inaugurated by the post-apartheid Constitutions “transformative constitutionalism”. He describes this process as follows: Transformative constitutionalism is, in the first place, a long-term project committed to a future of “large scale, egalitarian social transformation through non-violent political processes grounded in law”.

He envisages for South Africa a transformation “vast enough to be inadequately captured by the phrase ‘reform,’ but something short of or different from ‘revolution’ in any traditional sense of the word”.

In an address delivered at the University of Stellenbosch law faculty in 2006, former chief justice Pius Langa plainly described what he understands transformative constitutionalism to be. Referring to the Epilogue, he said:

This is a magnificent goal for a Constitution: To heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.”

Transformation”, Langa wrote, “is a permanent ideal”, “a way of looking at the world that creates a space in which dialogue and contestation is truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable, but the idea of change is constant. This is perhaps the ultimate vision of a transformative, rather than a transitional Constitution. This is a perspective that sees the Constitution as not transformative because of its peculiar historical position or its particular socio-economic goals, but because it envisions a society that will always be open to change and contestation, a society that will always be defined by transformation.”

It is not difficult to see how Justice Langa’s remarks on transformative constitutionalism as constant change resonates with the idea of becoming-minor.

Langa went on to underscore the massive socio-economic transformations that still needs to happen in South Africa, stating that “the levelling of the economic playing field” is “absolutely central to any concept of transformative constitutionalism”.

He went on to speak of the creation of a climate for reconciliation and emphasised that apartheid’s beneficiaries have a crucial role to play in the creation of such a climate. This does not mean that the blame on the beneficiaries of apartheid is increased, rather, it means that beneficiaries cannot “stand on the sidelines” as Langa put it and must take responsibility for the creation of a climate for reconciliation. Yet Langa was at pains to emphasise that “all South Africans, beneficiaries, victims and perpetrators must work together to create a climate of reconciliation”.

In the wake of the #RhodesMustFall and #FeesMustFall movements, the charge that the 1996 Constitution is a document that “violently” preserves the status quo, has been gaining more and more traction, especially in the past two years, with the amendment to section 25 of the Constitution on the cards and the land question on everybody’s lips.

But to hold, as some radicals do, that the Constitution as such is nothing more than a law-founding and law-preserving violence, smacks of a defeatist submission to the very forces of the status quo that this position vehemently opposes. For one thing, it implies a surrender to the dominant interpretation of the Constitution and reflects an implicit admission of a conservative politics of interpretation (the “only one meaning” school).

There is a strong argument to be made for the assertion that transformative constitutionalism as it was conceived by Klare, implies and necessitates substantive and not just formal decolonisation. But synthesising transformative constitutionalism with decolonisation also means that the two dialectically impact upon or inform one another.

Transformative constitutionalism can be read as naming the process by way of which decolonisation in South Africa is supposed to take place. And here it has to be said that even if it is accepted that all law is, in a certain sense violence, the liberal and post-liberal “violence” of the Constitution is by no means or degree comparable to the law-destroying violence of the apartheid legal order, its pseudo-constitutions and pretended legalities.

This, however, does not mean that the Constitution is perfect — no text is. But it does mean that far more needs to be done at the level of progressive interpretation and at the level of promoting the ownership of the Constitution, lest the phrase that “South Africa belongs to all who live in it” degenerates into empty rhetoric. It goes without saying that this very phrase grounds the imperative to transform the persistent spatial legacy of apartheid.

I end with two shibboleths. The first is what Foucault called an “ethics of discomfort”. I think that, as hard as it may be, discomfort can be a productive, generative state. And I think that there is value in being discomforted together. Discomfort shouldn’t be allowed to become just another cynical neoliberal cover word for deprivation. “Discomfort” is nothing but a gross minimisation if it is supposed to describe the state of those who are hungry and destitute. But an ethics of discomfort as a way of becoming-minor, as a way of being together, can be a powerful channel through which to stage the transformative encounters that we are so desperately in need of in South Africa.

I hasten to add that there have been many visible instances of at least an incipient ethics of discomfort in the history of our transition, both at its birth and now in the experience of its extended growing pains. As regards the latter, the public participation process about the land question in 2018 comes readily to mind. As for the former, however dismissive an attitude one adopts about the TRC, it cannot be gainsaid that the visual image of extreme and agonised discomfort in the encounter, will forever pervade the scene of the new South Africa’s birth.

The shibboleth with which I end is the TRC’s concept of the “little perpetrator” in each one of us. In a rare, but powerful moment of self-criticism, the TRC admitted in its report that it focused insufficiently on the moral responsibility that goes deeper than legal and political responsibility. The focus in its proceedings, it went on to say, on the spectacular and violent atrocities of the apartheid era and the consequent focus on the exceptional perpetrator, led to a failure to recognise what it called the little perpetrator in each one of us.

To quote the Commission: “it is only by recognising the potential for evil in each one of us that we can take full responsibility for ensuring that such evil will never be repeated”.

Of this, Mark Sanders writes as follows:

The projection of complicity through an owning of the ‘little perpetrator’ is… the ethico-political response available to anyone.”

No doubt, there are gigantic perpetrators in our society and in our state and they should be held accountable to the law for their abominable conduct. But being cognisant of the little perpetrator in each one of us can extend the basis for a moral citizenship that could begin again to overcome the divisions that pervade our past and that continue to constrain the potential of our present. DM


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