Locating the gift of justice in community courts

Juan Obbario at JWTC

“The gift is everywhere. The important element is justice and not gift”

(Juan Obbario, July 16^th 2011)

In 1975 Mozambique saw the end of Portuguese colonial rule. Two years later, a civil war began and ended in the early 1990s. Post 1975 the country has seen a socialist regime. Most interesting for this piece is how both the civil law system and customary law characterize Mozambique’s legal system up to today. In rural areas the power of chiefs remains widespread. In urban areas the opposite is not necessarily in effect. It can be said that the distinction between rural and urban is abstract and mainly an administrative distinction, as these two areas are continuous. The recognition of custom and community is widespread and permeates in every realm of contemporary Mozambique. Defining community is similarly tricky as this notion is broad. So, what can be said of the space of a “community court”? Can we say such a space is really a court, when there are no ‘real judges’ present? Subsequently, how can justice be obtained in such a space, where (legal and social) boundaries are elusive?

Juan Obarrio’s ethnographic work in community courts in Northern Mozambique’s Nampula province is a refreshing attempt at bringing the law closer to home, so to speak. His fascination with the community courts dating from the socialist period raises a number of questions and debates on the practice of law, sociality and attaining justice. In his 2010 article published in Anthropological Theory[i] Obbario introduces the reader to a civil dispute, taking place in 1976 between two men over a woman. The dispute, which required the intervention of the local FRELIMO Secretary, became somewhat resolved “through a payment in kind”, an exchange of everyday necessities. In his understanding, the Secretary located conflict resolution within “local customs and sensibilities”, requiring an exchange of equivalences, which were rather arbitrarily determined. Referring to other similar civil disputes, such as a divorce matter between a couple (and family) and a case of adultery, Obarrio terms this exchange and resolve of offense interplay “the gift of justice”.

Where is justice, one may ask? And what does it mean for justice to be ‘measured’ in vegetables, grains and oils (as in the dispute referred to earlier)? And who benefits from this exchange? These questions remain unanswered in Obarrio’s explorations. However, Obarrio engaged us with the more theoretical underpinning of gift giving and gift-taking, and the implications of the gift in relation to justice, and matters of life. Using yet another concept, Obarrio introduced the “ban” in relation to matters of life and law. He used the ban as a concept that links the ordinary and the exception. The ban is seen as “double-bind” because it excludes and includes. He argued that the way law works in Mozambique is not as logic, but as ban. The law captures life, but there are also instances where life captures the law. This is all animated in the space of the people’s / community courts, institutions that turn life to “juridical matter: the object of competing jurisdictions and traditions.” We are still left in the dark about the gift as a concept. Is the gift also a dual category or dual concept as a practice of justice?

Let us return to the community court, an interesting space that amalgamates state law and customary law. The latter has the underpinnings of familial and ‘kinship’ rules and structures. This is seen in the constant recall and introduction of the maternal uncle as a form of moral authority, but also a figure whose presence is called upon to resolve a domestic dispute. The ‘judge’ is merely present as a mediator/ facilitator between families, as most disputes involve families, even where there were only two people presenting a dispute. The role of the uncle, though uninterrogated by Obarrio carries a significant responsibility and power. We are told that there is a “crucial relation of mutual obligation between a person and his or her maternal uncle”. It’s not only the uncle that matters, but that relatives too can influence decisions on their kin’s lives.

Instead of understanding the role and meaning of the maternal uncle figure in Mozambique sociability, Obarrio sees the “court as an uncle”, where law and familial structure fuse together. I am intrigued by this reference of the court, and the uncle’s equivalence to the court. Is this a way of seeing an extension of family relations or is it the extension of state’s law efforts? It is surprising that power structures (patriarchal and other) are not under scrutiny here, that the power of the state in matters civil is not problematized. Can the uncle, and thus the court, be objective? What is the role of the court then when it is ‘an uncle’?

We have to appreciate the manner in which Obbario’s explorations highlight the relationship between law and everyday life. Community courts make publicly visible what has remained predominantly in the private and intimate realm. Within the courts, intimate life (family and kinship) becomes publicized. Whether this becomes the “intimacy of the state” as Obarrio argues, is not so simple.

We are still unclear how different people experience justice, or whether any of the people in the courts attain justice. Similarly, this started out by stating that the rural and urban distinction in Mozambique is rather loose. We may wonder whether the experiences of justice in these two localities would be the same, and whether the notion of gift carries similar significance.

Zethu Matebeni, Wits University

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[i] Obarrio, Juan. 2010. Beyond equivalence. The gift of justice in Mozambique (1976, 2004). Anthropological Theory, 10(1): 1-8.

On The Politics of Disaster

Adi Ophir at 2011 JWTC

“My final prayer: O my body, always make me a man who questions!”

Frantz Fanon, Black Skin, White Masks

In his talk, Adi Ophir asked us to consider the importance of scale and framing in identifying, assessing and responding to disaster as extraordinary. His challenge to rethink the easy division of human and natural acts poignantly bridged our guided bus tour of Johannesburg, Ann Stoler’s rumination on ruinations and Achille Mbembe’s reflection on ‘The Ordinary, the Event and the Accident’. As we passed beneath the shadows of many of the repurposed physical structures of the fallen Apartheid order, street signs and addresses reminded of the centrality of memory, truth and reconciliation to Post-Apartheid South Africa—as well as Apartheid’s ongoing role in structuring the ordinary order of things. This insistence on retaining the memory of what was once ordinary in what is now ordinary deliberately invokes a strange sense of historical scales of time and space. In the city of Johannesburg, and South Africa more broadly, we find sometimes strange and uncomfortable, yet hopeful meetings of times, spaces and people never as separate as some would like to think.

It seems counterintuitive to ask, ‘What, when and how is disaster extraordinary?’ for, as Ophir reminds, the extraordinary depends upon point-of-view, and disaster is always extraordinary for the victim. But to ask, ‘What, when and how is disaster?’, exposes disaster as both ordinary and extraordinary states of being structured by and dependent upon human action, as victims, actors and in-actors. To naively ascribe disaster to any nature (besides, perhaps, a deeply flawed human one) is to ignore the politics of framing and scale Ophir posits as so central to understandings of ordinary and extraordinary states of being. Further, to do so ignores the politics and human costs of the means and terms through which disaster is contained. For in converting extraordinary events into new configurations of ordinary states of being, human actors seek to best preserve certain distributions of ordinariness. Disaster, then, relies upon certain allocations of preventative and responsive resources as well as understandings of human worth.

Disaster represents a rupture in time and space that displaces the ordinary order of things, and is always partial, prejudiced and political in constitution and imagination. How, then, can we account for the distortions of spatial and temporal scale, framing and entanglement that are so foundational to the imagination, structuring, form and violences of ordinary life? Otherwise put, how, where and when does one begin to understand and critique the ways that human lives are imaginatively separated in time and space in order to privilege the ordinary comforts of some over the basic survival of others? ‘Disruption of everyday life,’ as Ophir puts it, remains disturbing to the victims and should create the same sense of disarray and rage even among those not affected. However, we all know too well that extraordinary events—unjust wars, genocides, apartheid to name just a few—are too often normalised and legalised. This is made possible in part, by ‘separating the victims’ point of view with that of the perpetrators and bystanders,’ Ophir explained.

The normalisation of disasters is a political matter. Depending on the political interests of those in power, certain events are deemed more important than others, i.e. extraordinary. 9/11 as Ophir suggested is one such event. The US has constantly insisted upon its extraordinariness and uniqueness for the past decade. This hyperbolic exaggeration justified the wars in Afghanistan and Iraq as well as unleashed an entire discourse (the infamous ‘war on terror’), the pseudo search of so called ‘weapons of mass destruction’ and many more destructive policies. The disaster and ‘disruption of everyday life’ lived by Afghans and Iraqis is not only undermined but perversely justified in the name of the victims of 9/11.

As those of us privileged enough to live, in different times and places, with the expectation of corporeal security as an ordinary state of being observe the explosions of rage broadcast (selectively and often difficultly) over the past days, months and years, the challenge is to better assess the costs of our ordinary comforts. Images from London, Tehran, Los Angeles, Cairo, Gaza, Soweto, Kingston and Paris, to name but a few, confirm that the ruptures we occasionally recognise as extraordinary disaster constantly surround us in our ordinary states. What is extraordinary, it seems, is the rarity and unevenness with which the constant distribution of extraordinary burden is recognised. As so many struggle to shrug off the shadows and ruinations of imperial violence, it is imperative that we recognise disaster’s thriving lifelines around us, casting its shadows from and upon the structures, institutions and modes of thought we ordinarily call home.

Ophir is certainly right in alerting us to the politicisation of disasters and the inequalities political ideology perpetuate. Nonetheless, extraordinariness and ordinariness are too often, as previously mentioned, facets of the same catastrophic events. Sections of Jacob Dlamini’s Native Nostalgia, writing on life in the township of Kathelong, illustrate this point brilliantly. ‘What does it mean to say that black life under apartheid was not all doom and gloom?’ Dlamini asks. ‘Only lazy thinkers would take’ such a question ‘to mean support for apartheid. Apartheid was without virtue’ (Dlamini, 15). Dlamini’s narrative troubles the neat boundaries between ordinariness and extraordinariness and underlines the messiness of both terms. How can one theorise about the ordinariness of an extraordinary event without underestimating its exceptional nature? How do we account for the mundaneness within the extraordinary?

‘Genocides too have their ordinary aspects,’ Ophir reminded us. That is, even under the most catastrophic, gruesome circumstances—Apartheid, genocides, war—people still manage to carve out some form of life. They hold on to and form anew their aspirations, values, and morals. They do the most ordinary things: laugh, live, cry, mourn etc. Such ordinary aspects of disasters are too often dismissed for a focus on the dramatic sensational features of disasters. This has several shortcomings, the first and most problematic one being the transformation of victims into hapless passive beings in need of saviours. Second is the parallel transformation of lived realities into uncomplicated meta-narratives bereft of the political, social and historical circumstances that, together, labor to constitute and enact these sharp strikes of disaster. Ophir’s discussion, as well as the theme of this year’s workshop, Ordinary States, States of Ordinariness, brought these challenges to the fore. The ordinary and the extraordinary are always intimately entangled. Hasty dichotomisation not only misses such crucial point but risk perpetuating what Chimamanda Ngozi Adichie calls the ‘danger of a single story,’ a single story which unfortunately almost always loses sight of and/or avoids larger historical, structural, political factors.

Natacha Nsabimana, PhD Student, Anthropology, Columbia University and

Andrew E. Dowe, PhD Student, Student, African American Studies, American Studies, Women’s, Gender & Sexuality Studies, Yale University