JUAN OBARRIO | JOHNS HOPKINS UNIVERSITY
If the Holocaust can be considered as the universal equivalent to compare all processes of post-genocide / post-conflict, collective memory, and transitional justice, then the regional example that towers above the aforementioned processes in sub-Saharan Africa is the South African Truth and Reconciliation Commission, its mandate, its procedures, and its report. Across the border, in Mozambique, a related yet paradoxically different process has taken place in the last 15 years after the connected modes of democratic transition and transitional justice accomplished most of their turns and returns.
Besides national union, what is lacking today in Mozambique is—as some local organic intellectuals put it—“a process of reconciliation between the people and the state.”1 Emerging from a bloody civil war and eighteen years of an Afro-socialist experiment, the Mozambican state began a deep process of legal and administrative reform in the late 1990s. This extensive post-war legal reform, which to a large extent was engineered and funded by foreign donors, is aimed at developing the internationally mandated goals of decentralization, democratization, and rule of law. In this process, an ambiguous legal recognition crucial to the politics of state decentralization has been accorded by the state to the realm of the “customary” and its authorities. Through policies such as the recognition of chiefs and the legal redefinition of “custom” in terms of “community,” the state implicitly engages with the past and its legacies of violence. Indeed, this legal engineering emerges as a revision of a most conflictive political history and functions as a politics of memory whereby the state attempts, through new legislation and forms of legal inscription, to rewrite colonial and post-colonial history, harnessing it to the project of a democratic future. In the absence of large state-sponsored theaters of truth and reconciliation, this juridico-political process and its quotidian disseminated effects can be seen as an attempt to develop an implicit policy of national understanding. This process also represents a politics of mourning. Yet this veritable process of what could be defined as “reconciliation without truth,” begs the question of an impossible mourning. If mourning takes place within the frame of certain time limits and with the certainty of the presence of the (dead) body, then can some African nations such as Mozambique, as well as many Latin American nations also engaged in unending mourning, be defined as pathological, “melancholic states”?
The “return of the customary” has been a central feature in many post-war conditions in Africa, especially in the field of transitional justice.2 Within this context, Mozambique presents some highly salient and original features. Even though a large number of chiefs provided crucial support to FRELIMO’s anti-colonial guerrilla war (Henrikson 1983), the socialist regime led by FRELIMO (Liberation Front of Mozambique) after independence in 1975 dismantled the system of “customary” authorities and laws, repressing all “traditional” ritual and magico-religious practices. Numerous scholars and political leaders, both inside and outside Mozambique, have underscored FRELIMO’s fierce repression of “customary” authority, law, and ritual as one of the main causes for the explosion of the civil war (Geffray 1990). Almost three decades later, different works of memory and different juridico-political practices of commemoration, are overlapping “on the ground.” The power of chiefs as juridico-political authorities is still widespread in the rural areas; initiation rites shape subjectivities and legal institutions created by the party-state regime combine aspects of a socialist ethos with supposedly antithetic “customary” norms.
The state-sponsored legal reform also aims at recognizing roughly 80% of the country’s “customary” courts, which are informal instances of various sorts (mosques, Zionist churches, associations of healers, neighbors and elders’ councils, and chieftains). The rationale of this reform regarding processes of informal conflict resolution is enacted through encounters between “traditional,” and western imaginaries of power, as well as between law and sacredness. Both “customary” authority, on the one hand, and diverse traditional spiritual practices, on the other are also deeply embedded in the legacies of colonialism and Socialism. The colonial regime shaped the realm of the “customary” and repressed the spirit cults, while the postcolonial government, labeling them as “obscurantism,” attempted to do away with both in favor of an enlightened “rational modernization.” Moreover, as RENAMO (Mozambican National Resistance) mobilized numerous chiefs across the country against the government, these chiefs restructured some expressions of “customary” rule and also reinstated traditional practices such as diverse spirit cults. The civil “war of spirits”—as it was defined by certain anthropologists (Wilson 1992)—thus further extends the connections between violence, spirit forms of healing, and “customary” rule. In today’s democratic context, shared by the two former camps in the war, the state’s recognition of the legitimacy of these practices is an implicit way of dealing with a most disturbing past and constitutes the background of the current process of peace building.
The domain of the “customary” was central to colonial governance in Africa, later becoming crucial in postcolonial reforms of the state and citizenship. The reappraisal of the legality of custom and chieftaincy constitutes a fundamental, if striking feature of the post-socialist transition from civil war towards a liberal democratic regime in Mozambique, and is central to an implicit politics of recognition and reconciliation. Yet this process is shot through with deep ambiguity, presenting entwined relations between justice, violence, and alterity, illustrating the way in which the violence immanent to the juridical—the force of law—at the same time enables and interrupts the process of legal recognition (Derrida 2002). For the sake of a pragmatic political calculation, the state implements a politics of recognition which re-produces the simulacrum of “traditional” juridico-political practices and authorities deeply involved in the history of colonial dominance. The limits to the recognition of difference3 are given not only by this fetishization of the past and its figures, but by a political history marked by violence, both colonial oppression and civil war. This history of enforcement of state law encompasses the role of the local “customary” chief as depository of colonial repression as well as the punishments enacted under “customary” laws, which at times collide with human rights and international law while reflecting a larger process of continuity between the arbitrary violence of both colonial and postcolonial regimes.
The “customary” as an oral domain of norms has always been a concept defined by the state in opposition to its written codes and legislation. This key issue also signals to the apparent arbitrariness of violence deployed under “customary” law, which is supposedly not regulated as in explicit, codified state legislation. Yet this field appears to be crucial for the state to perform its functions. Through the demarcation of this allegedly external realm by means of constant research and inscription, the colonial state actually delimited itself. After a postcolonial interregnum, this invocation of the “customary” for self-fashioning is reproduced today: in rural areas and urban centers, through ritual-political and religious ceremonies of recognition of the “customary,” or discourses such as the contents of legal reform, the state deploys an ambiguous politics of memory, harnessing a version of history and an imaginary of natural law and sacred violence linked to war that fuels the legitimacy of the state apparatus itself. Through the juridical re-construction of the realm of “customs,” the urban Afro-modern sphere actually shapes itself and, through a double movement, both differentiates and distances itself from the space of customs and tradition, while implicitly drawing its political legitimacy from the very existence of that realm.
Nevertheless, both spheres, the urban and the rural, are contiguous not only in spatio-temporal terms, but also in economic and political terms, and the interconnections between both are so profuse that the distinction really only exists at an abstract, administrative level. The traffic of continuities and links between both of them is too high to attempt to sustain the truth of what the state constructs as differentiated spaces and temporalities separated by a tangible border. Their differentiation, which goes back to colonial governmental policies, is a matter of discourse, or, more precisely, of legal discourse. However, this representation of difference is not merely an abstraction that (mis)represents the actual state of things, but rather it is itself a discursive practice that has direct and palpable effects on the real; through its expression in the juridical instruments, it reveals itself as both a technique of state power, and more generally, as a productive discourse that structures the political field itself. The case of the rural/urban administrative distinction, as the creation of the juridical concept of “community” shows, illustrates ways in which the letter of the Law—as a technology of power—inscribes difference onto the magma of the social while legitimizing the current political regime. This legal writing becomes the dangerous supplement of memory, the corporeal representation of the spirit of the law, with its charge of remembrances, of spectral, absent/present pasts projected onto the near future.
Two political conditions are thus unfolding concurrently in Mozambique: a broad official politics of recognition and a supposedly deep social process of reconciliation. It is an analogy based on the visual politics of a state that can identify and rejoin all the previously dispersed fragments of the nation: a visual economy of memory.4But this analogical politics contains a fundamental paradox whereby a postcolonial liberal democracy that enforces a modernist legislation, representing it as both progressive and oriented towards the future, embraces the immanent, violent legacies of colonialism entrenched within the allegedly past-oriented modalities of “customary” law. This embrace reveals how both regimes are analogous in their blending of precedents and expectations, as well as of force and law. The current juridical reform grants citizenship rights to a broad, ethnically diverse population, promoting a subtle articulation of future-oriented constitutionalism with past-oriented “custom” that has a difficult colonial and postcolonial history inscribed within it. Yet it also constitutes a problematic dialectics between bylaws with potential for emancipation and fierce, authoritarian statutes from the past.
Juan Obarrio received his PhD in anthropology from Columbia University. He is currently assistant professor in the Department of Anthropology at Johns Hopkins. He has completed a book manuscript which develops an historical ethnography of the postcolonial state in Mozambique through an examination of post-war legal reform in Mozambique and its entanglements of justice and violence. He has published articles in Cultural Anthropology, Anthropological Theory, Social Text, Cultural Studies Review, and collected volumes. His current project “The Gift of Justice,” combines anthropological theories of the gift and philosophical conceptions of justice, in order to study circulation and reciprocity as frames for an investigation issue of political community in relation to the state, labor, land, and development.
1 Mozambican historian Joao Paulo Borges Coelho described the situation in these terms during an interview in Maputo in 2003.
2 See Juan Obarrio, “Traditional Justice as Rule of Law in Africa: An Anthropological Perspective” in Peacebuilding and the Rule of Law in Africa: Just Peace? C.L. Sriram, O. Martin-Ortega, J. Herman (eds.) (London: Routledge, 2010.) See also Boaventura de Sousa Santos, Joao Carlos Trindade and Paula Meneses (eds) Law and Justice in a Multicultural Society: The Case of Mozambique (Dakar, CODESRIA: 2006)
3 On the Hegelian trope of recognition applied to the role of a dialectics between state and minorities see Jurgen Habermas, “Struggles for Recognition in the Democratic Constitutional State” and Charles Taylor, “The Politics of Recognition” in Multiculturalism: Examining the Politics of Recognition, edited by Amy Gutmann. (Princeton University Press. 2004). For a parallel Australian example—if quite different from the African cases—on contemporary state, settler capitalism and the “customary” in which the ‘native’ has to performatively inhabit the ‘custom’ designed by the state, see Elizabeth Povinelli, The Cunning of Recognition. Indigenous Alterities and the making of Australian Multiculturalism (Durham, Duke Univ. Press, 2002). For South Africa see Jean and John Comaroff, “Criminal justice, cultural justice: The limits of liberalism and the pragmatics of difference in the new South Africa,” American Ethnologist, vol 31, n2 2004; Barbara Oomen, Chiefs in South Africa: Law, Power and Culture in the Post-Apartheid Era (New York, Palgrave, Macmillan, 2005); Clifton Crais, “Custom and the Politics of Sovereignty in South Africa”. Journal of Social History 39.3 (2006), For a thorough view on the “limits of recognition” in the context of “multicultural” legal pluralism in Mozambique, see Boaventura de Sousa Santos, “The Heterogenous State and Legal Pluralism in Mozambique” Law and Society Review, March 2006.
4 See Deborah Poole, Vision, Race and Modernity. A Visual Economy of the Andean Image. (Princeton University Press, 1997)
Derrida, Jacques. 2002. “Force of Law: The Mystical Foundation of Authority.” In Acts of Religion, ed. G. Anidjar, 230-98. New York: Routledge.
Geffray, Christian. 1990. La cause des armes au Mozambique: Anthropologie d’une guerre civile. Paris: Karthala.
Henrikson, Thomas. 1983. Revolution and Counter-revolution: Mozambique’s War of Independence, 1964-1974. Westport, Connecticut: Greenwood Press.
Wilson, Ken B. 1992. Cults of Violence and Counter-Violence in Mozambique. Journal of Southern African Studies 18: 527–82.