HomeOld_PostsTemporary consolidation of African living law under UDI

Temporary consolidation of African living law under UDI

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AFTER the military defeat of the First Chimurenga, the Rhodesian state had the opportunity for 60 years to neutralise the living law of the African people through any of three main strategies and techniques; incorporation or domestication, delegation and deference.
Of these three strategies, the Rhodesians only seriously attempted the second one, delegation, through the perfunctory recognition of so-called African Customary Law and the grudging recognition of so-called African traditional leaders.
But the colonial versions of African Customary Law and traditional leaders were so diminished and bastardised in relation to real African law as to constitute mere insults.
Since the reason for existence of colonial rule was the theft by conversion of African patrimony to be turned into capital assets for the British South Africa Company (BSAC) and into individual white property, there was no way in which African living law could have been domesticated or incorporated as written Rhodesian law.
The two were diametrically opposed.
Deference was even more scary for the settlers because it would mean allowing African living law to override or take precedence over Roman Dutch Law or English Common Law in the operations of the state.
These problems were there at the end of the First Chimurenga, but Ian Smith’s Unilateral Declaration of Independence (UDI) escalated them, intensified them, and ensured, in the long run, the ultimate defeat of both Rhodesian racism and South African apartheid as follows:
l UDI directly undermined white liberal influence over African nationalist elites because it dashed the notion of independence being granted in a briefcase by the imperial power.
It also closed the lobbying and peaceful negotiation route to independence.
l UDI made it clear to African elites that mimicking white culture and language would not enable them to qualify as white ladies and gentlemen. Integration into white society was impossible.
l UDI made Africans feel that white liberals and white imperialists did not take their own written laws seriously and would not enforce them against their settler-kith and kin.
This strengthened the perception and reality of African living law outside the colonial state, beyond imperial courts, outside the colonial church, beyond the colonial or African customary courts.
None of these could be appealed to in order to defend the African where it really mattered.
l At the same time, UDI made it doubly hard for white liberals and for the empire to defend the Rhodesian state through white liberal ideology and through the normal written law, thereby helping to confirm the view of African living law which had been there from the days of the so-called Pioneer Column.
Africans were a permanently wronged and dispossessed nation and that state would not end except through recognition and practice of the African law of the land and the people as vana vevhu.
l Because the Rhodesian state could no longer be defended openly in international forums after UDI, it gravitated toward apartheid South Africa, so that by 1973, UDI and apartheid were viewed as terrible twins to be fought and to be eliminated together.
l UDI demonstrated one of the paradoxes of living law: Eugene Ehrlich’s idea that ‘the centre of gravity of legal development lies not in legislation nor in juristic science, nor in judicial decisions, but in society itself’.
This is to say, especially after UDI, Rhodesian legislation was dictated by the escalating pace of African resistance (based on African understanding of African living law) against the reason for existence of Rhodesia.
In other words, the written laws of Rhodesia (which were meant to deny the existence let alone effectiveness of African living law) had to be written to counter the very same African living law.
This made written white statutes stop-gap reactions to unwritten African living law.
White colonial law under UDI law became clearly the verso or reverse of African living law, which meant that it was driven, motivated, by the fear of African living law.
The 1969 Land Tenure Act, for instance, was such a law.
It would not have been written except for the fact that the African living law on land had refused to die and was in fact mobilising almost the entire African population against white settler-land theft.
So the Land Tenure Act has to be read as the reverse or verso side of African living law of the land enshrined in vene vevhu and mwana wevhu; just as the idea of willing-buyer willing-seller enshrined in the Lancaster House Constitution in 1979 was itself motivated directly and solely by the fear of African living law enshrined in the description ‘mwana wevhu’.
One of the sources of this African law was the pungwe song performed at functions which were renamed maKisimiso (Christmas festivals) because they were held during Christmas holidays when students and workers met in the so-called Tribal Trust Lands.
A classic one went like this:
“Smithie, uchatidzosera
Smithie, uchatidzosera
Nyika yedu, iyo yeZimbabwe.
Kana unenharo, tinokumangara
Kuna Chaminuka, nokuna Lobengula.”
So in this song, the law and the judgement against settlerism and land theft belonged to the ancestors of the African, not to Roman Dutch Law or English Common Law.
Another song was performed as a message of condolences or a funeral dirge addressed to African indigenous leaders who had failed to uphold African law and were now part of its Rhodesian bastardisation called African Customary Law. The song in Chindau went as follows:
“Tichadii, madzimambo
Tichadii, madzimambo
Ndikwo kundotorerwe nyika
Ndikwo kundotorerwe nyika.
Refrain:
NgevaRungu
NgevaRungu
Ndikwo kundotorerwe nyika
Ndikwo kundotorerwe nyika.”
Before the armed phase of the Second Chimurenga started, the povo were already singing of impending war.
This call became more frequent immediately after UDI, as follows:
“Vatema vemuRhodesia muno
Vatema vemuRhodesia muno
Nyika yedu yatorwa ngevaRungu
Nyika yedu yatorwa ngevarungu
Refrian:
Ticharwe hondo
Ticharwe hondo
Nyika yevatema yatorwa ngevarungu
Nyika yevatema yatorwa ngevarungu.”
The Second Chimurenga song, ‘Kunenzira dzemasoja dzokuzvibata nadzo’ represents the culmination and application of this African living law.
In this sense, the liberated zones of the Second Chimurenga became more orderly sanctuaries for vene vevhu than Rhodesian space with its torture chambers, genocide and written state of emergency laws.
However, demobilisation after independence appears to have unfortunately included the neglect of the African living law which had expanded during the revolutionary period following UDI.
African living law re-asserted itself visibly again during the African land reclamation movement and land revolution of 1997 – 2010.

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