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Do Constitutions Matter? The Dilemma of the Radical Lawyer

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Radical lawyers must recognise the limits of bourgeois law and constitutions because, by its very nature, law individualises collective demands thus fragmenting social struggles and undermining solidarity.

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Do Constitutions Matter? The Dilemma of the Radical Lawyer
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Constitutions don’t make revolutions. Revolutions make constitutions. No constitution envisages its own death for that is what a revolution entails. But constitutions matter. Some of the finest constitutions have been erected on ugly socio-economic formations wrought with extreme inequalities and inequities. South Africa and Kenya are examples. But constitutions do matter. Constitutions rarely herald fundamental transformations. They are the product of major transformations to consolidate the new status quo. Yet constitutions do matter. Why do constitutions matter? Why do we need constitutions? Why does every revolution and major change in modern societies birth a new constitution? This is the question I want to reflect on—why constitutions matter.

A constitution is as much a political as it is a legal document. It is a power map. The deeper structures of a constitution reveal, albeit partially, the constitution of the state, the primary repository of political power. The constitution defines the citizen and expresses the authority of the state over her. It defines and demarcates the rights of the citizen and limits his or her freedom. In turn, the state demands unquestionable loyalty to itself. The state’s authority and the citizen’s loyalty are sanctioned by criminal law which stands for the use of force. Citizen’s rights and freedoms are sanctioned by civil law which censures individuals and organs, never the state. The citizen’s loyalty to the state is taught in our schools as civics. The state’s authority over the citizen is political, not civic, and politics are embargoed from schools. In the mystified language of politics, the absolute loyalty to the state is called patriotism. It is in the name of patriotism that wars are fought and conflicts between and among ruling classes played out, all at the expense of the lives and freedoms of the people.

The constitution is also an ideological document. It mystifies the citizen’s loyalty to the state as a civic duty while it mesmerises the state’s authority over the citizen as necessary in the interest of society. Rights and freedoms are given by the grace of the state—they are gratuitous. Restrictions and abbreviations of rights and freedoms are a necessity, which the otherwise benevolent state has to enforce in the interest of social stability (read the state’s stability). All liberal and liberal-left discourses, whatever their nuances and however anti-establishment they may sound, ultimately reflect and reinforce the ideological apparatus of the state to justify, mystify and mesmerise the state’s monopoly of authority and violence to maintain the status quo.

Why then do constitutions matter?

Constitutions are a terrain of struggle, as progressive lawyers would say. It is a cliché but a cliché with some truth and much mystification. Permit me briefly to deconstruct the cliché by asking the following rhetorical questions. Who fights that struggle? At what site? In whose interest? For what purpose? Under what perspective and set of values (which is really a euphemism for ideology)? Lawyers fight that struggle in the courts through litigation in the interest of their clients with the purpose of winning, driven or motivated by a set of liberal values—human rights, accountability, checks and balances, limitation of power etc.—that are anchored in liberal democracy which is the staple on which we have been trained and fed and brought up.

What is there in it for lawyers? Fees in the pocket, status in society, reputation at the bar, appeasement of the conscience and inflation of the ego. That is a bit harsh. For there are some who do pro bono work, probably funded by liberal donor organisations including such dubious funders as George Soros’ “Open Societies”. (Soros made his money through speculation on the financial markets or what is better termed as “casino capitalism”.)

But, to be fair, on the margins of such a coterie of elitist lawyers, there exist sincere, well intentioned and self-sacrificing lawyers who are motivated by their passion for social justice and the fight for the rights, dignity and livelihoods of the working people.

It is important for these radical lawyers to recognise the limits of bourgeois law and constitutions because, firstly, law, by its very nature, individualises collective demands as individual grievances and disputes. It thus fragments social struggles and undermines the solidarity of the working people.

Secondly, in a litigation it is the lawyer who is the hero while the people are victims or spectators. The hero fights while the spectators cheer. It deprives the people of their self-esteem and militancy. It subverts the people’s agency.

Thirdly, the struggle moves from the barricades to the barristers thus robbing the people of their schools of struggle which are the streets, neighbourhoods and places of production.

Fourthly, while victory goes to legitimise the status quo and the system, defeat results in despondency and hopelessness, and not infrequently, surrender.

Finally, the progressive lawyer is infected even more deeply by the liberal virus, to use Samir Amin’s phrase, holding high the placard of change and reform while simultaneously holding down the banner of fundamental transformation.

So, then, the question for the radical lawyer is: why fight for rights and freedoms and constitutionalism? Why, at all, do constitutions matter? How can a radical lawyer engage in the rights struggle while keeping his passion for social justice and transformation alive and undented?

First, a radical lawyer must disinfect herself or himself of the liberal virus. And the most effective vaccine is revolutionary theory and conscientious practice.

Second, a radical lawyer must disabuse himself or herself of the notion that law is neutral and apolitical. It is not. If politics is the concentrated form of economics, as Lenin said, I would add that law is the concentrated form of politics.

The question is: what kind of politics? Radical politics are not on offer and cannot be picked up from workshops and seminars. Rather, they are to be learnt from the masses, for real politics are to be found where the masses are.

Third, a radical lawyer must humbly acknowledge that legal struggles are only one front of the social struggles of the working people. Therefore, legal struggles cannot be waged in isolation from other struggles.

Fourth, a radical lawyer should not stop at chanting that the constitution is a terrain of struggle. He or she must go beyond to identify sites of struggle. The sites of struggles which matter to the people are where they live (urban neighbourhoods and village communities) and where they get their livelihoods (land and factories).

Fifth, and finally, a radical lawyer must recognise that the sites of struggle are also sites of organising working people. Unorganised masses are like steam that evaporates into air and disappears. But the same steam when captured in an engine pushes the piston and moves the engine.

Stating these guidelines in the abstract rightly sounds esoteric and perhaps unrealistic. It behoves me to concretise them. I will do so by broadly painting one possible scenario.

Let me use what they call triangulation. My three points will be the right to life, freedom of expression and freedom of association. The right to life can be further resolved into the right to live with dignity and the right to a decent livelihood—in short, the right to be human, as Upendra Baxi would have it. It is around these rights that local struggles are strategised and people are mobilised and organised. It is around these rights and freedoms that litigation strategies are worked out. This way of highlighting and focusing on a selected number of strategic rights and freedoms allows one to move away from the fragmented rights discourse.

This way of crystallising the rights struggle on the ground also gives radical activists a handle on the demands that should be made of the state at the national level. And here I draw in the concept of commons, both traditional commons—land, water, above ground and below ground natural resources—and new commons which are often called public goods. In these, I include education, health and sanitation, energy, communications and finance. Here the strategic demand would be to de-commodify and de-privatise the commons. In other words, for the working people to reclaim the commons and liberate them from the clutches of monopoly finance capital assisted by our comprador states.

This way of conceptualising, operationalising and strategising the rights struggle and the struggle for the commons on different fronts would strike an immediate chord in the consciousness of the masses for it is a struggle for their decent livelihoods and human dignity. It is a struggle to facilitate production where energy and finance are important factors. And it is a struggle for the education and health of their children. It also becomes a struggle to bring strategic sectors of the economy into the public domain. It is thus a struggle against local compradorial classes and imperialist capital.

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Issa Shivji
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Prof. Issa G. Shivji is an author and academic, one of Africa's leading experts on law and development and former Mwalimu Julius Nyerere Research Chair in Pan-African Studies of the University of Dar es Salaam.

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Lessons From India’s COVID Calamity

Neglect of the public healthcare system, suppression of scientific information and sacrificing citizen welfare for political mileage have led to the public health crisis facing India today.

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Lessons From India’s COVID Calamity
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An Australian newspaper called it “Modi’s COVID apocalypse”. The Indian activist and author Arundhati Roy calls it “a crime against humanity”. These descriptions of India’s current public health crisis may seem alarmist, but they are not far from the truth. By the end of April, India was recording more than 300,000 new COVID infections and nearly 3,000 deaths per day, a 30-fold increase from September last year, when the country reported a new infection rate of 11,000 per day. Media reports are showing overflowing crematoriums and hospitals overwhelmed by the number of patients seeking treatment. Reports of people dying in ambulances outside hospitals because the latter did not have enough beds or oxygen cylinders reveal a healthcare system that is on its knees.

However, according to those who are witnessing the catastrophe first-hand, the horrifying images shown in the local and international media are just a microcosm of what is really happening on the ground. Even those with money and connections are unable to secure the healthcare they need. Barkha Dutt, a famous media personality in India who lost her father to COVID last week, told ITV that despite her privileges and connections, she could not get access to the treatment her father needed. She never imagined that she would become the story that she has been covering for months. She said lack of drugs and equipment in New Delhi’s hospitals is even forcing people to go to Sikh temples, which are supplying oxygen for free to those who need it. Many families in New Delhi and other large cities are treating their sick relatives at home with oxygen cylinders, some bought at exorbitant rates on the black market. Crematoriums cannot keep up with the number of bodies arriving at their gates. The smell of death is everywhere.

Many of the current deaths are not exclusively due to the virus, but also to a lack of preparedness on the part of India’s healthcare system, which suddenly became overwhelmed due to a dramatic spike in corona cases. Analysts say the easing of restrictions and complacency on the part of Indians in general led to the crisis. People went back to work and continued with their daily lives as if there was no pandemic. The winter wedding season was in full swing in cities like New Delhi.

On its part, the government did little to avert the crisis by allowing the Kumbh Mela, the world’s largest religious gathering that is held along the banks of the Ganges river, to take place. The gathering became a superspreader event, as did the many political rallies held in states like West Bengal, which were attended by hundreds of people. At one such rally, Prime Minister Narendra Modi even boasted that the presence of large numbers of people at the rallies showed that his political party, the Bharatiya Janata Party (BJP), had massive support. Social distancing and wearing of masks were not prevalent at these crowded meetings.

In January, Modi told leaders at the World Economic Forum that India had “saved humanity from a disaster by containing corona effectively”. He said that India had defied expectations of “a tsunami of corona infections”. Now he is having to eat his own words. Not only has India, the world’s second most populous country, become the epicentre of the disease – with new aggressive variants being reported every week – but it is in the very awkward position of having to seek aid from other countries, including its long-time rival Pakistan, which has offered to help. The UK, USA and other governments plan to send oxygen and other medical supplies to India.

India has tended to view itself as a regional economic powerhouse, and so being reduced to a recipient of humanitarian aid is having a wounding effect. This is not how Modi, whose Hindu nationalist rhetoric has ignited a “Hindu First” movement in India, would like India to be viewed. India’s prime minister now finds himself reduced to having to accept medical aid for a country that has marketed itself as a destination for medical tourism and the “pharmacy of the world” that manufactures affordable drugs for developing nations. The Serum Institute of India is currently producing a large proportion of the AstraZeneca vaccine that is being rolled out in many countries. But Modi has decided to nationalise the institute as well, and has banned exports of the vaccine until the country sorts out its own health crisis, leaving millions of people around the world, including Kenya, in limbo.

India’s public healthcare system was already strained before the pandemic. The government spends a measly 1 per cent of its budget on health. The medical needs of Indians are met mostly by the private sector. Nearly 80 per cent of the healthcare in urban areas is provided by private facilities. In rural areas, 70 per cent of  the population relies on private clinics and hospitals, which are unaffordable for the majority. This privatisation of healthcare has come at a huge cost. Poor Indians suffer disproportionately from preventable diseases. Malnutrition rates among mothers and children are also among the highest in the world. What we are witnessing is how neglect of public healthcare systems can have long-term negative consequences, especially during a disaster or an epidemic.

India is also a lesson in how leaders can impact the spread of a disease. Since he took office, Prime Minister Modi has tried very hard to control public perceptions about his achievements and the virtues of the BJP, which he has filled with spin doctors who try to present a rosy image of India under his leadership. Several journalists have been arrested under Modi’s watch and media organisations that call him out are dismissed as unpatriotic. News channels in India are dominated by pro-government news anchors and journalists who have twisted the narrative in favour of Modi, even when he stands in the way of press freedom. In March 2020, in the early days of the pandemic, Modi asked India’s Supreme Court to stop media organisations from publishing any COVID-related news without getting government clearance first. Thankfully, because the Supreme Court is obliged to protect the rights and freedoms enshrined in India’s constitution, including freedom of the press, the court refused his request.

What we are witnessing is how neglect of public healthcare systems can have long-term negative consequences.

Like Jair Bolsonaro in Brazil and Donald Trump in the USA, Modi underplayed the scale of the pandemic and painted independent media and journalists who questioned his policies as enemies of the people. As a result, more than half a million Americans, nearly 400,000 Brazilians and some 200,000 Indians have died from COVID-19. The link between a paranoid, media-hostile leadership and negative health outcomes is evident in these cases.

Many independent journalists and observers believe that the official figures on COVID deaths and infections put out by the Indian government are a gross underestimation, and that the actual figures could be two or three times more than those that are being reported. Crematoriums are reporting more cremations adhering to COVID protocols than what is being given as the official death toll from COVID-19. This could be partly because many deaths are occurring at home and so are not being reported. In addition, people who die from COVID but who were not tested are not recorded as having died from the disease.

Meanwhile, the BJP government,  is assuring India’s 1.4 billion citizens that it is doing everything to increase the supply of oxygen and increase vaccination levels among those over the age of 18, but these measures are coming a little too late. The death toll is likely to rise significantly over the coming weeks.

Lack of trust in the government may be the biggest hurdle countries face as they try to contain the virus. In Kenya, the theft of COVID-19 donations last year and massive corruption scandals at the state-run medical supplies agency, KEMSA, have severely diminished citizens’ faith in the government’s willingness and ability to protect them. Moreover, apart from periodic lockdowns and curfews, there seems to be no strategy on how prevention measures will be instituted in the long term.  Also no one is quite sure when vaccination will reach “herd immunity” levels; people like me who have received their first dose of the AstraZeneca vaccine under the COVAX facility – a global mechanism for pooled procurement and distribution of vaccines for low and middle income countries –  still don’t know for sure if they will get their second jab, a scenario complicated by the fact that Modi has temporarily banned the Serum Institute from exporting the vaccines.

India has three important lessons for Kenya and the rest of the world.

Lesson 1: Do not neglect the public healthcare system

Countries around the world such as South Korea and Uganda that have successfully contained the coronavirus, managed to do so because the containment measures were led and funded by the public sector. Mass testing and other measures could not have taken place if the government did not initiate them, and ensured their successful implementation through a nationwide network of public healthcare facilities. But for this to happen, people must have faith in the government, which is sorely lacking in many countries.

The emphasis on private healthcare in countries such as Kenya and India has also left millions of poor and low-income people completely vulnerable to epidemics and pandemics. Public healthcare systems in all countries should be beefed up so that countries are not caught unawares in the future. Like public education, public health is an investment that reaps economic and social dividends in the future. COVID-19 has shown us the folly of relying solely on the private sector to meet citizens’ health needs and the importance of investing in robust public health systems that play a key role in detecting, containing and stopping the spread of infectious diseases.

Lesson 2: Do not suppress or distort scientific information and data

Donald Trump and Jair Bolsonaro consistently underplayed the threat posed by the novel coronavirus disease. Trump initially referred to it as a minor flu even as hospital beds were filling up, and even as infection rates were rising. Both leaders also mocked the wearing of masks and social distancing, which American and Brazilian scientists advocated. Trump’s rallies were filled with people who ignored corona protocols. In India, some politicians even said that the pandemic was a hoax intended to prevent farmers in Punjab from organising protests against the government’s agriculture policies. By ignoring the science, and peddling false information, these leaders put their countries’ citizens in immense danger. Vilifying the press – which is often the public’s main source of corona-related data and information – in the face of a pandemic is also not a good idea.

Lesson 3. Do not sacrifice public health to gain political mileage

Politicians should not sacrifice people’s lives at the altar of politics. Prime Minister Modi could have banned pilgrims from attending the Kumbh Mela, just as he ordered a nationwide lockdown early last year. But he chose not to do so because he wanted to appease Hindus and his Hindu nationalist base. In addition, he attended massive political rallies where few people wore masks, thereby facilitating the spread of the virus. He put people’s lives in danger because he wanted to score political points for his party. In the United States and Brazil, leaders chose to keep the economy running even if it meant losing hundreds of thousands of lives. In Kenya, politicians engaged in Building Bridges Initiative (BBI) rallies even as corona cases were rising. Moreover, parliamentarians are discussing BBI amendments to the constitution rather than what measures could be taken to protect Kenyans not just from the coronavirus disease and its various variants, but also from the hardships they have had to endure in the past year due to job losses and business closures. This is the type of shortsightedness and lack of compassion and vision among the country’s leadership that has led to the public health crisis facing India today.

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Towards an African Revolution: Fanon and the New Popular Movement (Hirak) Engulfing Algeria

Sixty years after the death of the revolutionary Frantz Fanon and the publication of his masterpiece, The Wretched of the Earth, Algeria is undergoing another revolution. In the first of a two-part blogpost, Hamza Hamouchene provides a brief historical account of Fanon’s anti-colonial thought, his critique of the postcolonial ruling elites and the new popular movement (Hirak) engulfing Algeria.

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Towards an African Revolution: Fanon the New Popular Movement (Hirak) Engulfing Algeria
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During the upheavals that the North African and West Asian region witnessed a decade ago – what has been dubbed the ‘Arab Spring’- Fanon’s thought proved to be as relevant as ever. Not only relevant, but insightful in helping to grasp the violence of the world we live in, and the necessity of a sustained rebellion against it.

Fanon’s wrote during in a period of decolonisation in Africa and elsewhere in the Global South. Born in Martinique, a French colony in the Caribbean, though Algerian by choice, he wrote from the vantage point of the Algerian revolution against French colonialism and of his political experiences on the African continent. Today, we might ask: can his analyses transcend the limitations of time? Can we learn from him as a committed intellectual and revolutionary thinker? Or should we just reduce him to another anti-colonial figure, largely irrelevant for our post-colonial times?

For me, as an Algerian activist, Fanon’s dynamic and revolutionary thinking, always about creation, movement and becoming, remains prophetic, vivid and committed to emancipation from all forms of oppression. He strongly and compellingly argued for a path to a future where humanity ‘advances a step further’ and breaks away from the world of colonialism and European universalism. Fanon represented the maturing of anti-colonial consciousness and he was a decolonial thinker par excellence.

Despite his short life (he died at the age of 36 from leukaemia in 1961), Fanon’s thought is rich and his work, in books, papers and speeches, prolific. He wrote his first book Black Skin, White Masks in 1952, two years before Điện Biên Phủ (the defeat of the French in a crucial battle in Vietnam) and his last book, The Wretched of the Earth in 1961. His 1961 classic became a treatise on the anti-colonialist and Third-Worldist struggle, one year before Algerian independence, at a moment when sub-Saharan African countries were gaining their independence – an experience in which Fanon was deeply and practically involved.

In Fanon’s intellectual journey, we can see the interactions between Black America and Africa, between the intellectual and the militant, between theory and practice, idealism and pragmatism, individual analysis and collective action, the psychological life (he trained as a psychiatrist) and physical struggle, nationalism and Pan-Africanism and finally between questions of colonialism and those of neo-colonialism.

Fanon did not live to see his adoptive country become free from French colonial domination, something he believed had become inevitable. Yet his experiences and analysis were the prism through which many revolutionaries abroad understood Algeria and helped to turn the country into the mecca of Third World revolution.

Six decades after the publication of his masterpiece The Wretched, Algeria is witnessing another revolution, this time against the national bourgeoisie that Fanon railed against in his ferocious chapter ‘The Pitfalls of National Consciousness.’

Fanon and colonial Algeria

The Algerian independence struggle against the French was one of the most inspiring anti-imperialist revolutions of the 20th century. It was part of a wave of decolonisation that had started after the Second World War in India, China, Cuba, Vietnam and many countries in Africa. The wave of decolonisation inscribed itself in the spirit of the Bandung Conference and the era of the ‘awakening of the South’, the Third world as  it was then known, which has been subjected to decades of colonial and capitalist domination under several forms, from protectorates to settler colonies.

Frantz Fanon methodically unpicked the mechanisms of violence put in place by colonialism. He wrote: ‘Colonialism is not a thinking machine, nor a body endowed with reasoning faculties. It is violence in its natural state.’ According to him, the colonial world is a Manichean world (to see things as having only two sides), which goes to its logical conclusion and ‘dehumanises the native, or to speak plainly it turns him into an animal.’

What followed the insurrection on November 1, 1954, launched by nationalist forces against the French, was one of the longest and bloodiest wars of decolonisation, which saw the widespread involvement of the rural poor and urban popular classes. Huge numbers of Algerians were killed in the eight-year war against the French that ended in 1962, a war that has become the foundation of modern Algerian politics.

Arriving at Blida psychiatric hospital in 1953 in French controlled Algeria, Fanon realised quickly that colonisation, in its essence, produced madness. For him, colonisation was a systematic negation of the other and a refusal to attribute humanity to them. In contrast to other forms of domination, the violence here was total, diffuse, and permanent.

Treating both French torturers and liberation fighter, Fanon could not escape this total violence. This led him to resign in 1956 and to join the Front de libération nationale (FLN). He wrote: ‘The Arab, alienated permanently in his own country, lives in a state of absolute depersonalisation.’ He added that the Algerian war was ‘a logical consequence of an abortive attempt to decerebralise a people’.

Fanon saw colonial ideology being underpinned by the affirmation of white supremacy and its ‘civilising mission.’ The result was the development in the ‘indigènes évolués’ (literally the more  evolved natives) of a desire to be white, a desire which is nothing more than an existential aberration. However, this desire stumbles upon the unequal character of the colonial system which assigns places according to colour.

Throughout his professional work and militant writings, Fanon challenged the dominant culturalist and racist approaches on the ‘native’: Arabs are lazy, liars, deceivers, thieves, etc. He advanced a materialist explanation, situating symptoms, behaviours, self-hatred and inferiority complexes in a life of oppression and the reality of unequal colonial relations.

Fanon believed in revolutionary Algeria. His illuminating book A Dying Colonialism (published in 1959) or as it is known in French L’An Cinq de la Révolution Algérienne, shows how liberation does not come as a gift. It is seized by the popular classes with their own hands and by seizing it they are themselves transformed. He strongly argued the most elevated form of culture – that is to say, of progress – is to resist colonial domination. For Fanon, revolution was a transformative process that created ‘new souls.’ For this reason, Fanon closes his 1959 book with the words: ‘The revolution …changes man and renews society, has reached an advanced stage. This oxygen which creates and shapes a new humanity – this, too, is the Algerian revolution.’

Bankruptcy of the post-colonial ruling elites

Unfortunately, the Algerian revolution and its attempt to break from the imperialist-capitalist system was defeated, both by counter-revolutionary forces and by its own contradictions. The revolution harboured the seeds of its own failure from the start: it was a top-down, authoritarian, and highly bureaucratic project (albeit with some redistributive aspects that improved people’s lives in the reforms carried out in the first years of independence).

However, the creative experiences of workers’ initiatives and self-management of the 1960s and 1970s were undermined by a paralyzing state bureaucracy that failed to genuinely involve workers in the control of the processes of production. This lack of democracy was connected with the ascendancy of a comprador bourgeoisie that was hostile to socialism, workers control and staunchly opposed to genuine land reform.

By the 1980s, the global neoliberal counter-revolution was the nail in the coffin and ushered in an age of deindustrialization and pro-market policies in Algeria, at the expense of the popular classes. The dignitaries of the new neoliberal orthodoxy declared that everything was for sale and opened the way for mass privatization.

Fanon’s work still bears a prophetic power as an accurate description of what happened in Algeria and elsewhere in the Global South. Fanon foretold the bankruptcy and sterility of national bourgeoisies in Africa and the Middle East today. A ‘profiteering caste’, he wrote, that tended to replace the colonial ruling class with a new class-based system replicating the old structures of exploitation and oppression.

By the 1980s, the Algerian national bourgeoisie had dispensed with popular legitimacy, turned its back on the realities of poverty and underdevelopment. In Fanon’s terms, this parasitic and unproductive bourgeoisie (both civilian and military) was the greatest threat to the sovereignty of the nation. In Algeria, this class was closely connected to the ruling party, the FLN, and renounced the autonomous development initiated in the 1960s and offered one concession after another for privatizations and projects that would undermine the country’s sovereignty and endanger its population and environment — the exploitation of shale gas and offshore resources being just one example.

Today, Algeria – but also Tunisia, Egypt, Nigeria, Senegal, Ghana, Gabon, Angola and South Africa, among others – follows the dictates of the new instruments of imperialism such as the IMF, the World Bank and negotiate entry into the World Trade Organisation. Some African countries continue to use the CFA franc (renamed Eco in December 2019), a currency inherited from colonialism and still under the control of the French Treasury.

Fanon predicted this behaviour of the national bourgeoisie when he noted that its mission has nothing to do with transforming the nation but rather consists of ‘being the transmission line between the nation and capitalism, rampant though camouflaged, which today puts on the masque of neo-colonialism.’ Fanon’s analysis of the class basis of independence speaks to the contemporary postcolonial reality, a reality shaped by a national bourgeoisie ‘unabashedly…anti-national,’ opting he added, for the path of a conventional bourgeoisie, ‘a bourgeoisie which is stupidly, contemptibly and cynically bourgeois.’

Fanon also noted in 1961 the international division of labour, where we Africans ‘still export raw materials and continue being Europe’s small farmers who specialise in unfinished products.’ Algeria remains in a extractivist model of development where profits are accumulated in the hands of a foreign-backed minority at the expense of dispossession of the majority.

The Hirak and the new Algerian revolution

Fanon alerted us sixty years ago that the enrichment of this ‘profiteering caste’ will be accompanied by ‘a decisive awakening on the part of the people and a growing awareness that promised stormy days to come.’ In 2019 Algerians shattered the wall of fear and broke from a process that had infantilised and dazed them for decades. They erupted onto the political scene, discovered their political will and began again to make history.

Since 22 February 2019, millions of people, young and old, men and women from different social classes rose in a momentous rebellion. Historic Friday marches, followed by protests in professional sectors, united people in their rejection of the ruling system and their demands of radical democratic change. ‘They must all go!’ (Yetnahaw ga’), ‘The country is ours and we’ll do what we wish’ (Lablad abladna oundirou rayna), became two emblematic slogans of the uprising, symbolising the radical evolution of a popular movement (Al Hirak Acha’bi). The uprising was triggered by the incumbent president Bouteflika’s announcement that he would run for a fifth term despite suffering from aphasia and being absent from public life.

The movement (Hirak) is unique in its scale, peaceful character, national spread – including the marginalised south, and participation of women and young people, who constitute the majority of Algeria’s population. The extent of popular mobilisation has not been seen since 1962, when Algerians went to the streets to celebrate their hard-won independence from France.

The popular classes have affirmed their role as agents in their own destiny. We can use Fanon’s exact words to describe this phenomenon: ‘The thesis that men change at the same time that they change the world has never been as manifest as it is now in Algeria. This trial of strength not only remodels the consciousness that man has of himself, and of his former dominators or of the world, at last within his reach. The struggle at different levels renews the symbols, the myths, the beliefs, the emotional responsiveness of the people. We witness in Algeria man’s reassertion of his capacity to progress.’

The Hirak succeeded in unravelling the webs of deceit that were deployed by the ruling class and its propaganda machine. Moreover, the evolution of its slogans, chants, and forms of resistance, is demonstrative of processes of politicisation and popular education. The re-appropriation of public spaces created a kind of an agora where people discuss, debate, exchange views, talk strategy and perspectives, criticize each other or simply express themselves in many ways including through art and music. This has opened new horizons for resisting and building together.

Cultural production also took on another meaning because it was associated with liberation and seen as a form of political action and solidarity. Far from the folkloric and sterile productions under the suffocating patronage of authoritarian elites, we have seen instead a culture that speaks to the people and advances their resistance and struggles through poetry, music, theatre, cartoons, and street-art. Again, we see Fanon’s insights in his theorisation of culture as a form of political action: ‘A national culture is not a folklore, nor an abstract populism that believes it can discover the people’s true nature. It is not made up of the inert dregs of gratuitous actions, that is to say actions which are less and less attached to the ever-present reality of the people.’

The struggle of decolonisation continues

Leaving aside largely semantic arguments around whether it is a movement, uprising, revolt or a revolution, one can say for certain that what is taking place in Algeria today is a transformative process, pregnant with emancipatory potential. The evolution of the movement and its demands specifically around ‘independence’, ‘sovereignty’ and ‘an end to the pillage of the country’s resources’ are fertile ground for anti-capitalist, anti-imperialist and even ecological ideas.

Algerians are making a direct link between their current struggle and the anti-French colonial resistance in the 1950s, seeing their efforts as the continuation of decolonisation. When chanting ‘Generals to the dustbin and Algeria will be independent’, they are laying bare the vacuous official narrative around the glorious revolution and revealing that it has been shamelessly used to pursue personal enrichment. We see a second Fanonian moment where people expose the neo-colonial situation and emphasise one unique characteristic of their uprising: its rootedness in the anti-colonial struggle against the French.

Slogans and chants have captured this desire and made references to anti-colonial war veterans such as Ali La Pointe, Amirouche, Ben Mhidi and Abane: Oh Ali [la pointe] your descendants will never stop until they wrench their freedom!’ and ‘We are the descendants of Amirouche and we will never go back!’

The struggle of decolonisation is being given a new lease of life as Algerians lay claim to the popular and economic sovereignty that was denied to them when formal independence was achieved in 1962. In Fanon’s prophetic words: ‘The people who at the beginning of the struggle had adopted the primitive Manichaeism of the settler – Blacks and Whites, Arabs and Christians – realise as they go along that it sometimes happens that you get Blacks who are whiter than the whites and the hope of an independent nation does not always tempt certain strata of the populations to give up their interests or privileges.’

This two-part long read is an extract from a chapter in a forthcoming book Fanon Today: The Revolt and Reason of the Wretched of the Earth (edited by Nigel Gibson, Daraja Press 2021).

This article was first published in the Review of African Political Economy Journal.

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South Africa: Why an Amnesty for Grand Corruption Is a Bad Idea

A full confession can bring amnesty and immunity from prosecution or civil procedures for the crimes committed. Therein lies the central irony. As people give more and more evidence of the things they have done they get closer and closer to amnesty and it gets more and more intolerable that these people should be given amnesty.

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South Africa: Why an Amnesty for Grand Corruption Is a Bad Idea
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South Africa’s former Public Protector, Thuli Madonsela, provoked a political storm recently when she suggested that public servants implicated in grand corruption should be given the chance to apply for amnesty.

Many South Africans, weary of rampant, unchecked and unaccountable corruption, could be forgiven for asking: what on earth was she thinking?

Madonsela won the admiration of many South Africans because of her steely resolve in the face of malfeasance and breaches of the rules of integrity in public office. Her proposal suggested she might be going soft on corruption.

To be effective as the Public Protector Madonsela required many attributes, as I set out in my 2013 book, The Zuma Years. These included independence of mind, a very thick skin and a certain contrarian eccentricity that rendered her far less susceptible to the numerous attempts to intimidate her as she took on then president Jacob Zuma and his state capture network.

Her amnesty idea displays all of these characteristics.

It should be taken seriously, if only to affirm the merit of a diametrically opposed position.

It’s an inherently bad idea.

Bad timing

Madonsela’s timing is especially unfortunate. It is only in very recent times that the Hawks, the priority crimes investigating police unit, and other agencies of the criminal justice system appear to have recovered the institutional capacity to begin prosecuting those responsible for the deep-lying state capture project.

Recent developments have begun to suggest that the net is finally tightening around the bigger fish that are the true architects of systematic corruption in the country.

This has been widely welcomed. Accountability, at last.

Against the grain of this public view, Madonsela, a law professor, entered the fray to suggest that instead of being tough on the perpetrators, an olive branch should be extended.

This is an example of the “independent-mindedness” for which Madonsela was rightly acclaimed during her seven-year term as Public Protector from 2009-2016.

It is also not only contrarian, but also eccentric in that it makes so little sense.

To be fair to her, she tried to clarify later that she did not mean amnesty for every perpetrator, and certainly not the big fish. Her idea is targeted at those whose “status”, she says, “in the food chain is quite junior”.

But the first of a series of fatal flaws in her idea is about where to draw the line: on what basis should one distinguish the smaller from the bigger fish?

Those who had played a “minor but critical” role was how she framed her idea. There is already a problem here: is it possible for something to be both “critical” to a (criminal) enterprise and yet still “minor”?

I think not.

Half-baked idea

Madonsela confirmed that amnesty should be available on a legal rather than a moral basis. Yet, in a radio interview after she’d floated the idea, and drawn a lot of flak, she added to the confusion.

At first Madonsela spoke of people who may have “bent the rules” unwittingly, in which case, they may well have a legal defence to criminal conduct. Later, she clarified that she intended to cover individuals with “agency”, even to the extent that their palms have been “greased with money” (which, she argued, they would have to pay back in return for amnesty).

If the right to amnesty was indeed to be a legal entitlement, then the terms on which entitlement to amnesty applies have to be very clearly and carefully drawn. This much has been revealed in Constitutional Court decisions concerning the legal rationality of presidential amnesties or pardons in the case of women convicts and perpetrators of apartheid era offences.

Madonsela’s public policy rationale appears to be that without an inducement, the smaller cogs in the bigger wheels of state corruption may seek to hide and avoid prosecution when what is required is that they should come forward with information about the bigger fish.

Perhaps, then, an offer of amnesty – in effect, a legal right to indemnity from prosecution – deserves to be given serious consideration. This, especially if it is the case that the National Prosecuting Authority is struggling to pull together the evidence to bring strong prosecutions against the most powerful perpetrators of state capture corruption.

But there is no evidence that this is the situation. And, moreover, there are major downsides to be weighed in the balance.

The case against amnesty

First of all: deterrence.

The fact that amnesty has been granted in the past may encourage future corrupt actors to take the risk. The corollary is that the successful prosecution of corrupt officials is likely to discourage repetition.

Secondly, the arguments put forward by Madonsela would, in my view, provide grounds for mitigation in sentencing – not for amnesty. One example would be “small fish” cooperating with the investigative authority and providing evidence about the bigger fish. Another example would be if someone could show that they were bullied into bending procurement rules by a superior and more powerful individual in the system.

Another possible avenue – common practice in criminal justice systems around the world – is the use of a “plea bargain”. Here an accused person trades information in return for facing a less serious charge.

Amnesty would, in effect, deprive them of this opportunity and could thereby undermine the integrity of the whole criminal justice system.

The other major consideration is perception – both in the eyes of key stakeholders, such as the investment community and, secondly, the general public.

Investors are especially eager to see if South Africa has the capacity to hold to account those who contaminated the democratic state and so undermined fair competition by enabling a rent-seekers’ paradise. It is about the strength of the rule of law. Investors want to feel confident that this is one destination where the rule of law holds and where, because of state capture prosecutions, there is less risk of a repeat.

And surely, above all else, the public will feel cheated if perpetrators of state capture corruption, however “minor”, get away scot-free. This, more than anything, would encourage a lawless society, steeped in a culture of impunity rather than accountability.

A dangerous path to tread

Attempts to trade amnesty for information about state corruption have caused conflict as well as controversy in other countries. One notable example was in Tunisia in 2017.

But the biggest danger is that it simply sends the wrong message. This was aptly spelt out by esteemed South African artist William Kentridge reflecting on a previous attempt at taking the amnesty road in South Africa through the Truth and Reconciliation Commission process.

Admittedly, Madonsela has a different purpose in mind than the national reconciliation ambition of the Truth and Reconciliation Commission process. But, no, Advocate Madonsela, a blanket amnesty would send the wrong message at the worst possible time.The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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