Saturday, March 30, 2013

How did South African troops wind up fighting and dying in the Central African Republic?

This past Sunday, March 24, 2013, the President of the Central African Republic, François Bozizé,  was deposed by the rebels of "Seleka" (a name meaning simply "Alliance"). It’s difficult, from a distance, to see much reason to regret Bozizé's departure; the NY Times describes the country under his "rule" as essentially ungoverned, with the nation's mineral wealth largely untapped and its people caught in dire poverty. Nor is his departure in any strong sense a blow to democratic principles; the ejected President took power via a coup of his own back in 2003, and then won what the Times calls "questionable votes." But it's also not clear how admirable the rebels are, though they clearly had good reason to be dissatisfied with Bozizé. Their leader, Michel Djotodia, himself a former civil servant, immediately suspended the constitution for the three years, according to another NY Times report. 

Whether the change of power will in any way address the country's important problems remains to be seen. What we do know is that the latest coup was far from bloodless. The Washington Post reports that the former President has escaped to neighboring Cameroon and requested asylum in Benin, but meanwhile, according to another NY Times report, 78 bodies have been found in the streets of Bangui, the Central African Republic’s capital.

That total probably doesn’t include another 13 people who died in combat – 13 people who were soldiers in the South African National Defence Force. 27 more South African soldiers were injured, according to the South African Mail and Guardian. South Africa's secretary of defense, Sam Gulube, says that the South African troops fought bravely, trying to stem a rebel advance, though there are also suggestions that they were under-equipped and under-manned.

But the most important issue is, how did they get there in the first place? One way to rephrase that question is to ask why South African troops were trying to stem this rebellion at all. To that question there are some troubling possible answers. There are indications that South Africa’s ANC leaders turned their attention to the Central African Republic in part because of potential business deals that would have benefited ANC figures or even the ANC itself.

But perhaps the troops’ presence there had nothing to do with any politicians’ self-interest, and was simply an effort by South Africa, a “regional power,” to help calm troubled waters in another African state. (For reports indicating that the UN asked South Africa not to withdraw its troops early this year, even after a shortlived agreement between the government and the rebels had called for their withdrawal, see here and here.) But if the reasons for South African troops' presence were disinterested, they may still have been unwise. So we might ask, who decided that sending troops to the Central African Republic was a wise policy? (There are, after all, a lot of troubled waters in Africa to be calmed.)

The answer to this last question is: the President, joined perhaps by his Cabinet. South Africa’s constitution – so vigilant and liberal on many issues – is by no means strict in its regulation of the President’s power to deploy troops abroad. This is a subject I've written about, most fully in a chapter of the treatise Constitutional Law of South Africa. (The chapter isn't freely available online, but for an earlier version, see here.) In fact, the President needs no specific Parliamentary approval whatsoever to "authorize the employment of the defence force ... in fulfillment of an international obligation." (South African Constitution, section 201(2)(c).) 

South African troops have been in the Central African Republic for years, but President Zuma extended the agreement with the Central African Republic that was the basis for their presence in December 2012, and South Africa then sent an additional 200 troops in January 2013, despite the already-deteriorating security situation. While that reinforcement evidently was reported to Parliament early this year, and provoked some controversy at the time, no news story I’ve seen has indicated that Parliament ever did approve this intervention. 

South Africa does not yet have, as far as I know, any equivalent to the US War Powers Resolution, which at least requires Congressional approval of US troops’ entry "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances" if the troops remain on the scene for more than approximately 60 days. But it’s not clear that such a statute would have meaningfully restricted the South African President’s power either, since it’s possible to debate elaborately when hostilities are in fact "clearly indicated by the circumstances." 

It’s also possible, it appears, for South African missions – like American ones – to “creep,” since the troops in the Central African Republic were sent there to "build capacity" of local forces but wound up attempting to repel a rebel assault. The Mail and Guardian, reporting on the mission's history, quotes an observer in South Africa who notes that "Just last week Bozizé had a meeting with President Zuma here in South Africa ... There's some suggestion he was here to plead for help to defend his government in the face of an imminent attack."

Military power is very hard to regulate through a constitution, as ample U.S. experience makes clear. It is sad to see this point again confirmed in South African experience as well.  And it's difficult not to see the deaths of these South African soldiers as singularly pointless. 

Wednesday, March 27, 2013

Downton Abbey and life's interference with art

Caution: spoiler alerts here for Downton Abbey fans who haven't yet watched all of Season 3!

So those of you who have seen the end of Season 3 know that at the very end of the episode, one of the main characters makes a sudden, permanent exit. (I'll leave the spoiling at this level.) I was appalled by this fresh assault of tragedy for the household. How could they do this to us loyal viewers?

My wife, who had been keeping silent about the shape of things to come at Downton after getting an unfortunate spoiler hint on Facebook, turned to the internet after the show to find out why this had happened. The answer, it turned out, was that the actor who played the character in question had decided to leave the show. Since he wouldn't be back, they had to find a way to take him out of the action permanently, and the alternatives (a distant voyage, for instance) might have been even more awkward.

Now that doesn't explain why this character went off the scene at the end of the last episode of the season, leaving everyone to put themselves back together emotionally without any support from the show. The reason for that, it turns out, is that British soap operas traditionally remove characters in the Christmas episode, which was what this one had been when it was first broadcast in the U.K. (Really, what can you say?)

But back to the show. The reason for the character leaving was that the actor -- an actual living human being -- wanted to take his career in a different direction. But I don't have any particular connection to that actor. I do feel very much engaged with the show. Yeats once asked how we can tell the dancer from the dance. Here it's clear what the difference between the actor and the play is, but as a viewer I'm annoyed that the actor got in the way of the art!

This is either a sign of the power of art and narrative, or an indication that I should get out and jog more.

Thursday, March 21, 2013

Discretion and the Baga

Elsewhere in his book Art of the Baga (did I mention that this book is very interesting?), Frederick Lamp discusses the question of how he can keep the confidences of his sources, who evidently shared with him some ritual secrets of the Baga, while still conveying enough of the essence of the matters under discussion so that readers can get a meaningful understanding of Baga culture.

Lamp faced a serious dilemma. Apparently some crucial information "has always been considered secret, the property of only the most highly ranked, initiated males" -- but "[s]ince initiations are no longer practiced on any level, the mechanisms for transmitting that knowledge are gone. The information is simply guarded by those who have it, and much of it will probably disappear with them at their death." (14) Is there a moral obligation for a scholar to preserve elements of human culture, even if the people whose culture it was would prefer for it to die with them?

Fortunately, Lamp "was able to enlist the aid of others in the community, including some elders (one aged around 107) who were not ritual officials. Through them I gained a satisfactory amount of information." (14) He also became part of discussions with the Baga themselves about these issues, and perhaps indeed they are the best people to answer the question of what part of their past culture should be preserved for history -- yet against tradition.

But meanwhile the next question was what Lamp should write. Ultimately, Lamp says, on certain ritual secrets he "decided to present only material that has already been disseminated outside the Baga community, in theses, sketches, and collection photographs, together with a minimum of what little elaboration has been offered to me by the elders themselves." He goes on to "beg the indulgence of any elders who may feel I have crossed the line." (58) This stance reflects a deep respect for the Baga elders' right to decide how much of their heritage will survive.

But there is one further note. Lamp writes that "I have withheld information that may jeopardize secrecy, and particularly details that outsiders may find abhorrent." (58) One can't read that sentence without wondering what details an outsider might find abhorrent. Here of course we, the outsider readers, do not know. But there are some intriguing hints. Lamp reprints a photograph he himself took in 1976 of a ritual event among the Temne (a group with some links to the Baga); he writes that "[t]he ritual was saturated with secrecy and I was very unwelcome, even though the part of it I saw was ostensibly public ... and I had official permission to attend.... The atmosphere was extremely tense, and dangerous to the uninitiated." (83) Later he quotes a Baga source saying that during an initiation, "the female sorcerers who would attempt, out of curiosity, to follow the operation of circumcision in the forest are physically liquidated from society by the Tshol" (94)  -- a "shrine figure" (87) with formidable powers. Perhaps there are more hints later in the book (which I've only read the first part of so far), but it does seem that part of what Lamp is not describing is the serious threat or reality of violence.

And, in a classic irony, if violence is indeed an underlying feature of Baga ritual, we have to recognize that this violence is bound up with the processes of creativity that also produced Baga art.

Monday, March 18, 2013

Sexuality and tradition among the Baga

Another note from Frederick Lamp’s fascinating Art of the Baga (1996):

Lamp describes “a spectacular and sensuous dance” performed by Baga men (73), that celebrates an important spirit named “a-Bol, the patron of the feminine moiety,” one division of Baga society. (70). This dance, which another scholar observed in the 1950s, was performed several times in 1987, perhaps as part of the renaissance of Baga traditional practices. All the dancers, Lamp reports, are dressed as women:

Each dancer is dressed in a particular female style: a printed-cloth wrapper around the waist, a scarf around the head, necklaces, bracelets, and conspicuous earrings tied to the ears. (73)  

What’s the dance like? Lamp writes that:

In the dances we saw in 1987, the men’s movements were homoerotic. First parading at a normal gait, the dancers would then take a position with legs splayed and knees bent, shuffling their feet with each beat, swiveling the hips …. (73)

He goes on:

Demonstrations of this dance in several [Baga] Sitemu villages were relatively sedate, but at the three-day ritual sacrifice the dancing was boisterous, continued for several hours, and included some spirit possession and also some sexually suggestive gestures and contact between the men.  (73)

Lamp suggests there may be multiple reasons for this ritual, but he proposes that one source may be that “the a-Bol ritual may be seen in the context of a ‘younger’ clan identified with the feminine principle, and sexual as sexuality is defined for the ‘younger’” – and, he writes, “No studies have investigated the extent of this phenomenon, but it seems clear that some homosexual behavior was expected among the youth.” (74)

This elaborate display of cross-dressing, with its complex roots, is interesting in and of itself. But it is also striking evidence – not that any was actually needed – that the claims sometimes made in Africa today that homosexuality is un-African are, of course, false. 

Sunday, March 17, 2013

On the fall and possible rise of the art of the African Baga

From a book I'm reading called "Art of the Baga: A Drama of Cultural Reinvention" by Frederick Lamp (1996): "during the colonial occupation by the French, the demand for African art objects in France nearly denuded the Baga cultural landscape of old masks and ritual sculpture." (Page 19) One can see why: Baga masks in particular are remarkable, as this African Art dealer's website illustrates. But to "denude" a cultural landscape -- what an accomplishment.

Yet there is a saving feature of this situation: in real life, there's always a day after, and in the Baga's day after there has evidently been something of a renaissance of traditional practices, in which, the author writes, "[s]ince 1985, my photo albums have exposed [Baga] carvers to works of art now in private and museum collections in other parts of the world."(Page 22.) So it's possible to hope that the Baga themselves will replenish their cultural landscape, and that they may at the same time find a way to deliver new art to admiring outsiders that will escape the demand for authenticity that seems to require stripping people of their own culture.

Tuesday, March 12, 2013

Remembering Arthur Chaskalson - Washington College of Law, American University, March 4, 2013

Last Monday, March 4, 2013 I had the privilege of speaking at American University's Washington College of Law at a memorial tribute to Arthur Chaskalson, "Chief Justice Arthur Chaskalson: Celebrating the Life of a Transformational Lawyer and Judge." The event was recorded on video, and can be seen at  I personally learned a lot from the moving talks that others gave that day. Here's an approximate version of what I said: 

Thanks to Dean Claudio Grossman and Professor Sean Flynn. It’s an honor to be here with others who remember Arthur.

Let me begin by mentioning that there will be a second memorial for Arthur this Friday afternoon in New York. There are so many people here in the US whom Arthur deeply affected, that even two memorials won’t be enough.

In 1986, when I was teaching at Columbia, Jack Greenberg, formerly the head of the NAACP Legal Defense Fund, began inviting anti-apartheid lawyers from South Africa to come over to Columbia, and I had the great good fortune to become the person who put together and co-taught a course with them on South African law, called “Legal Responses to Apartheid.”

The first time I taught, my co-teachers were Sydney and Felicia Kentridge, and Dikgang Moseneke. All three were remarkable. Sydney had done the Biko inquest, representing Steve Biko’s family, and would go on to lead the bar in London, Felicia had co-founded the Legal Resources Centre with Arthur, and Dikgang had emerged from imprisonment on Robben Island as a teenager to become an attorney, later an advocate, later among many other roles the Deputy Chief Justice of South Africa. So I had a wonderful introduction to South Africa law.

The second time I taught was with Arthur, who spent the academic year 1987-88 at Columbia. I had thought I understood South African law, but from Arthur I realized that to really understand it I would have to immerse myself in it. It was easy, and accurate, to say that South African law in the late 80s was horrifically unjust. But if that was all you could say, it was impossible to understand how Arthur and others were actually succeeding in working against apartheid within that very legal system. So I realized that I had a course of study ahead of me.

Arthur did one other thing for me that year, which was to invite me out to South Africa. I went in the summer of 1988 for three weeks, stayed at the Chaskalsons’ home in Johannesburg – though that time Lorraine Chaskalson was still back in New York in an academic program there – and met a group of lawyers who were engaged in the same work as Arthur: trying to find ways to achieve some measure of justice, or progress towards justice, in the courts of apartheid South Africa. It turned out that I’d found one of the main concerns of my adult life: the challenge to apartheid and the efforts to build a just nation in its wake.

So I’m personally very, very grateful to Arthur and to Lorraine, my friends, for having done so much to set me on this course and for the quarter-century of support and friendship they’ve given to my family and me. I can’t resist saying that if you look at the program for today’s gathering, you’ll see on the right side a picture of Arthur, sitting next to a handsome young man. That young man is my younger son David and he’s sitting, obviously completely thrilled, next to Arthur behind the bench of the Constitutional Court, during a tour of the Court that Arthur gave to Dave, Teresa, and me in 2009. Arthur looks like he’s having a good time too!

But I haven’t come primarily to talk about Arthur and me and mine. Instead, let me try to add to our memories and understanding of Arthur, and to help paint a picture of a man who combined aspects of John Adams, James Madison and John Marshall in a single life.

John Adams: So let me start with this: Arthur Chaskalson believed in the law. But how could one believe in the law in South Africa, when it was shot through with injustice? This is a question that all of us this morning have been asking. Ambassador Rasool’s image of anti-apartheid lawyers in South Africa as “dislocated from the law” was very illuminating; so was Stephen Clingman’s suggestion that Arthur respected the office of the judge, however dreadful the occupant of that office. Here’s my answer: I think that Arthur believed in what the law should be, and committed himself to doing everything he could so that the law could be that as well. So to pursue the path of the law, he understood that he needed to be faithful to that ideal law; but that in turn meant that he had to honor the potential for that law within the harsh and callous framework of South African law as it stood.

So to Arthur, a leader of the Bar, when he represented a group of anti-apartheid activists on trial for treason in Delmas in the 1980s, it was a profound step when he moved to recuse the judge in the case (as Stephen Clingman recounted). But it was also a serious matter when he and his co-counsel, including the extraordinary George Bizos, decided they would no longer take tea with the judge during breaks in the action – as a mark of their protest against that judge’s handling of the case.

So, similarly, it was Arthur, representing Dullah Omar – later Minister of Justice – in a challenge to Omar’s detention under the state of emergency in the mid-80s, who raised an argument about a possible interpretive limit on emergency power and apparently indicated in the trial court that he didn’t have too much confidence in the argument. Who ever heard of an American lawyer saying he lacked confidence in his own argument? But in the Appellate Division Arthur went on to say that he now had more confidence in this same argument – and who ever heard of that either? Arthur didn’t win that case (I wrote a book about the State of Emergency, part of whose point was to show that every important state of emergency case in the Appellate Division upheld the state’s powers).

But Arthur did win other cases, including a remarkable pass law case from the mid-1980s that his longtime colleague and friend Geoff Budlender described in his eulogy for Arthur at his funeral in South Africa. What’s most striking about Geoff’s account of that case, in which Arthur persuaded a by-no-means eager Appellate Division to read a portion of South Africa’s pass law in favor of black South Africans – when clearly that law was never meant to have benign effects for black people – is that the court could not resist the sheer intellectual force of Arthur’s argument, even though its import was completely counterintuitive. But logic alone is rarely enough. The judges of that court were persuaded, I am sure, in good part because they knew that what Arthur argued was what he believed.

But Arthur’s work was not a rarefied process of intellectual argument punctuated by tea. (Actually I believe that Arthur and his colleagues often did their late night case preparation with some whiskey.) The fact is that anyone opposed to apartheid in old South Africa was a target of the state’s unwelcome attentions. That first summer that I stayed at the Chaskalsons’ house, lawyers at the LRC office in Pretoria were on the trail of what they thought might be a burial ground where security forces had disposed of the bodies of people they had killed. They were consulting Arthur about what to do. Or rather, they were doing so except when, for perhaps 6 hours one weekend day, the phone service at the Chaskalson home went completely out. I assume that Arthur and Lorraine took for granted that their lives were constantly subject to surveillance, interference and the possibility of worse.

Nor was Arthur merely trying to reform apartheid. In the 80s it was sometimes possible, from across an ocean, to confuse legal struggle against apartheid with a failure to really get the point that apartheid had to end. Arthur had no such confusion. I am sure he had been completely clear on this point since his days on the Student Representative Council at Wits in the 50s, and since his work with Bram Fischer – the leader of the South African bar, and a Communist who spent his final years in prison, whose desk and law books (and, as Stephen Clingman said here, whose gown) Arthur received after his death. But I remember standing in the Chaskalsons’ garden with him one evening, looking out at Johannesburg and perhaps saying something about how strange a combination of achievement and injustice South Africa was, and Arthur replying that it all had to be destroyed – every bit of apartheid, I understood, root and branch.

Not that he sought violence – not at all. Every bit of his legal work was a witness, and an exemplar, of the possibility of peace. He was under no illusions about the quality of South African justice, but he helped preserve and to make believable the ideal of what it could be – and that in turn became a major resource for the new country whose Chief Justice he would become.

James Madison: As the world has often shown, it is sometimes in a sense easier to oppose injustice than to rule justly. South Africans who hated apartheid for its corrupt and racist evil did not necessarily know much about how to engage in the often-depressing process of democracy. Arthur threw himself into the work of creating that new democracy, and he did not shrink from hard choices in the process. He joined the ANC’s negotiating team – a step that meant he was now in the midst of South Africa’s political fray. The negotiations were miraculous, but they also featured hard and sometimes controversial bargaining. The first post-apartheid constitution, the Interim Constitution, which Arthur played a central role in negotiating, contained some notable concessions to white anxieties, including, if I recall correctly, provisions for a right to vote in local elections not only for residents but also for property owners. But that was part of the price of a negotiated transition; I am sure Arthur did not relish paying this price or others like it (most notably, the agreement on amnesty) but he understood that the path to be followed, the path of law and of truth, had to also be a path that led forward.

John Marshall: Then, of course, he became the first President of the Constitutional Court, and ultimately the Chief Justice of South Africa. The Constitutional Court, an assembly of demigods as Thomas Jefferson called our Constitutional Convention, set out to build a body of jurisprudence that was at the same time intellectually rigorous, grounded in fundamental legal aspirations, and committed to the humane transformation of South Africa. Arthur led that process, and shaped the internal community of a court that was notable for its care and for its frequent unanimity. And he stepped aside early as Chief Justice, characteristically, to make it possible for an African judge, Pius Langa, to assume the leadership of South Africa’s judiciary.

Then Arthur retired – as inaccurate a term as one could imagine. He continued to play a powerful part in South African life, with what may have been his last public speech a sharp critique of proposed legislation that threatened the independence of the legal profession and the courts.  Along the way, as President of the International Commission of Jurists, he led a critical examination of US anti-terrorism policies. It isn’t surprising that this man of the law confronted a senior Department of Defense official about Guantanamo, and challenged his arguments on the ground – the undeniable ground – that there cannot in today’s world be anyone who is somehow entirely outside of the law. Can I just say that in this respect Arthur also resembled Thomas Jefferson, in being part of a worldwide community aspiring to freedom?

He was a great man. He was also a very humble man. I once was joking at dinner about the phrase “a crashing bore,” and some unfortunate person who I felt had embodied this, and it became quite clear that Arthur worried that he might be such a person too. He was not, not at all. He was warm and kind and hospitable and engaged with the world of ideas and culture and a devoted parent and grandparent – all with his wife Lorraine, who was and is all those things as well. I loved talking law with him, but I remember at least as clearly discussions about how much to wash the dishes before putting them in the dishwasher and about the wellbeing of the cats who lived in the Chaskalsons’ backyard.  

You can catch a glimpse of Arthur in one more story. In 1995, I believe, Arthur and Lorraine were carjacked at the entrance to their home. This was an era of extremely frightening and violent crime, in which, as Jon Klaaren, a professor there, once explained to me, the micro-politics of every encounter shaped how the event would play out. Arthur and Lorraine of course did not resist the robbery, but Arthur did explain to the robbers that the papers in the back of his car were from the Constitutional Court’s case on the certification of the draft South African constitution, and asked them to leave those papers behind – which I believe they did. Can there ever have been a micro-political moment quite like that, with the President of the Constitutional Court politely persuading armed robbers not to interfere with the development of the country’s constitutional law?

I don’t know just why it is that some oppressive countries give birth to exceptionally talented and humane people. Why did Tsarist Russia produce Tolstoy and Dostoyevsky? Whatever the reason, South Africa has been such a country, the land of many people I’ve already mentioned, of Alan Paton, Nadine Gordimer and Nelson Mandela – and Arthur Chaskalson, who will be dearly missed.