On Jan. 8, 2022, the Mail & Guardian (whose masthead asserts that it is “Africa’s Best Read” newspaper) published an opinion column by Lindiwe Sisulu titled “Whose Law Is It Anyway?” that has sparked a deep conversation in South Africa.
I learned of it from my friend Allan Boesak during one of our weekly conversations about faith and justice. After I read Sisulu’s piece, I shared it with other justice-minded public theologians in the Samuel DeWitt Proctor Conference with this statement: “This is a must read!”
Sisulu’s parents, Walter and Albertina Sisulu, were leading figures with Nelson Mandela in the African National Congress movement that resisted the racist apartheid regime of South Africa. Their daughter’s opinion column shows she inherited her parents’ zeal for justice.
A dose of truth
“Whose Law Is It Anyway?” bristles with truth about economic reparation, a subject the beneficiaries of colonization always try to avoid. Consider the following excerpt:
Let’s not fool ourselves and one another: the primary motivation for the evils of colonialism was and still is economic. It is organized crime; the robbery of other people’s land and resources; the exploitation and despiteful use of their labor. It is also about the reduction of these people to mass consumers and exclusion from the ownership of the factors of production and wealth creation.
But it seems today we have legitimized wrongdoing under the umbrella of the rule of law. Many years down the line Africans manage poverty while others manage wealth. When we talk about transformation, it is just a buzzword? When we talk about reconciliation, what we don’t hear is economic reconciliation.
Sisulu is unapologetically critical of colonized-thinking Black judges, other politicians and business leaders for their collective failure to demand economic reparation for centuries of legalized land theft and wage theft in South Africa.
Because she is a member of the ANC’s executive committee, has been a member of the South African Parliament since 1994, and currently serves as minister of tourism for South Africa, her objections to the failure by Black judges, other politicians and business leaders to demand economic reparation have drawn criticism from some in South Africa, including some supporters of the current political administration. However, her critique of the so-called “reconciliation process” is praised by other people in South Africa who realize that the 1994 Constitution that purported to end apartheid was woefully flawed.
The problem with ‘rule of law’
Her critique of the well-worn phrase “rule of law” is correct. Like Martin Luther King Jr. did in his Letter from Birmingham Jail written to white religious leaders who criticized King and the Southern Christian Leadership Conference for its role in supporting nonviolent civil disobedience to Jim Crow laws, Sisulu correctly declares that there is a difference between legality and justice.
Slavery was practiced, supported and defended under “the rule of law.”
Robbery of land and labor of indigenous people was upheld under “the rule of law.”
“Sisulu correctly declares that there is a difference between legality and justice.”
Women were denied the right to vote under “the rule of law.”
Minister Sisulu and other people who insist that descendants of indigenous and enslaved people whose land and labor were stolen by colonizers deserve economic reparation are vilified as opponents of “the rule of law” by white defenders of manifest destiny, self-proclaimed religious conservatives and colonized-minded Black and indigenous leaders.
They are vilified because colonizers and their lackeys always have referred to “the rule of law” to avoid demands for economic reparations as part of the overall claim for racial justice. However, Minister Sisulu’s views are in line with those of Martin Luther King Jr., Malcolm X, Cornel West, Tavis Smiley, Nicole Hannah-Jones, Kimberle Crenshaw, the Black Lives Matter movement, the Poor People’s Campaign, Palestinians, and other Black and indigenous people around the world who have demanded economic reparations for legalized robbery, fraud and other oppression.
In denial of racism’s influence on legal system
I am a Black judge and pastor who was born, reared and educated in the American South during the final years of the Jim Crow era. I have lived most of my life in the American South since that time. The American South is where I obtained my law degree, my law license, practiced law, was licensed and ordained as a minister in the religion of Jesus, and where my wife and I raised our sons. My personal and professional experience and knowledge of history lead me to agree with what Minister Sisulu has observed about “the rule of law.”
Most Americans are in denial about white supremacy, racism and their pervasive influence on the legal system, society, economics, notions of government, religion and understanding of culture. Michael Eric Dyson described this denial tendency and its effect on racial equity in his introduction to Black Mutiny: The Revolt on the Schooner Amistad, by William Owens, as follows:
It is not overstating the case to suggest that, when it comes to race, we are living in the United States of Amnesia. America cannot solve its race problem because it cannot afford to remember what it has been through, or more accurately, what it has made its Black citizens endure: the horrible, cowardly, vicious legacy of racial domination stoked by religious belief and judicial mandate. The willed forgetfulness of our racial past continues to trap us. … It appears easier for most whites, and for many Blacks, to reenact a pantomime of social civility through comfortable gestures of racial reconciliation than it is to tell each other the truth of the colossal breach of humane behavior and democratic practice that slavery represented.
Derrick Bell, one of the first legal scholars associated with Critical Race Theory, was equally honest in his contribution to the Introduction to Black Mutiny.
The distinctions between slavery, segregation and current era of quasi-opportunity are real, but the paradoxes built on white dominance and Black subordination are recognizable in each era. Those Blacks and whites who challenge the racial status quo are seldom hailed as heroes in their own time. Their words and actions are too threatening to what is to allow either those they oppose or those they would help to comprehend when those bold individuals proclaim what might be.
In all times, the law is the handmaiden of those in power. Only in extraordinary circumstances will courts and legislatures break with this traditional role and reach out to the dispossessed, usually in ways that benefit those without power in small ways and in the short run. In large ways and in the long run, the seemingly remedial actions of law stabilize and legitimate even when, as is often the case, the powerful are most active in their opposition to these modest reforms.
Michael Eric Dyson’s observation about the “willed forgetfulness of our racial past” that enables most white people and many Black people” to “reenact a pantomime of social civility through comfortable gestures of racial reconciliation,” and Derrick Bell’s observation that “Blacks and whites who challenge the racial status quo are seldom hailed as heroes in their own time,” are as true now as when they were made in 1997.
That explains why right-wing politicians, religious figures, journalists, neo-fundamental capitalist colonizers and imperialists, and white supremacists are trying to stop teaching, learning, writing and discourse about the history of racial injustice, including Critical Race Theory, in colleges, universities and otherwise.
On another level, “willed forgetfulness” and outright hostility to truthful observations about the economic debt owed to descendants of indigenous and formerly enslaved Africans are at the heart of recent attacks on historically Black colleges and universities throughout the United States, including bomb threats made to three such institutions in Arkansas where I live.
Black people in the United States and indigenous people in South Africa and elsewhere always have known that the long pattern of domestic terrorism against our communities, places of learning and worship, our burial places and our historical sites is a basic aspect of white supremacy and domination. The Jan. 6 insurrection on the U.S. Capitol showed the world the ugly truth about white hypocrisy concerning “the rule of law” that Black people, including those who study, teach and work in HCBUs, have known for generations.
Agents of pacification
At the same time, the descendants of indigenous and formerly enslaved Africans who asserted our inherent rights of dignity, equality and freedom from oppression always have recognized how white colonizers and their descendants used Black lackeys as agents of pacification. In the early years of the last century, Booker T. Washington served that purpose. At the end of the last century and currently, judges such as Justice Clarence Thomas and religious figures such as Tony Evans serve that purpose.
“No provision was made in the U.S. Constitution — or in any other law — to repay the formerly enslaved persons or any of their descendants for 246 years of forced labor carried out under ‘the rule of law.'”
In the aftermath of the U.S. Civil War that ended in 1865, three amendments were added to the U.S. Constitution. The 13th Amendment was ratified in 1866 and outlawed slavery and involuntary servitude, except as punishment for criminal conduct. In 1868, the 14th Amendment was added. It guarantees equal protection of the law and prohibits deprivation of life, liberty or property without due process of law. In 1870, the 15th Amendment was added which guaranteed the right to vote for all persons born in the United States, an apparent effort to extend voting rights to formerly enslaved men (no women were granted voting rights until the 19th Amendment was ratified in 1920).
However, no provision was made in the U.S. Constitution — or in any other law — to repay the formerly enslaved persons or any of their descendants for 246 years of forced labor carried out under “the rule of law.” The formerly enslaved population was given no land, no property, no money and nothing else as restitution for deprivations they had been forced to endure under the “rule of law.” The nation that enacted a Homestead Act in 1862 and settled white farmers on free frontier land taken from indigenous people gave no land to formerly enslaved Black people.
Abraham Lincoln’s role
The “rule of law” hypocrisy goes further.
On April 16, 1862, President Abraham Lincoln signed into law the District of Columbia Compensated Emancipation Act, a law that called for $1 million in reparations to be paid for emancipated Africans who had been enslaved in the District of Columbia — but the money was to go to the white people who enslaved them, worked them without pay and kept the proceeds from their work. I have found no proof that the emancipated Africans received a penny. The District of Columbia Emancipation Act also included up to $100,000 to resettle formerly enslaved persons — but the resettlement was to be in Haiti and Liberia, not in the United States.
Under “the rule of law,” millions of formerly enslaved people were left homeless, landless and penniless by the society that sanctioned their enslavement for 246 years. As if that plight were not sufficiently woeful, the people who enslaved them were restored to land on which the formerly enslaved had toiled and produced wealth.
The voting rights guaranteed to formerly enslaved Black men became worthless when state after state passed laws that mocked their emancipation. One day after the 13th Amendment was ratified — which prohibits slavery and involuntary servitude except as punishment for crime — South Carolina enacted a law that required Black “servants” to enter into labor contracts with white “masters,” to work from dawn to dusk and to maintain a “polite” demeanor. Violation of that law — by failing to enter into such a “contract” or by failure to maintain the required demeanor — subjected the “servants” to criminal sanctions that could result, upon conviction, in the loss of voting rights and return to involuntary servitude. The “rule of law” made a mockery of the 13th Amendment.
This history is a fraction of the harms, injuries and indignities inflicted upon formerly enslaved Black people according to “the rule of law” in the United States. Perversely, it is never mentioned when economists, politicians, lawyers, judges and religious leaders discuss wealth inequity in my country. Instead, white capitalists and their Black sycophants blatantly question the industry and innovativeness of people whose marginalized ancestors designed cities, revolutionized the arts, developed life-saving medical procedures and invented machines that transformed life in countless ways.
The shameless “rule of law” hypocrisy goes still further. Formerly enslaved Africans in the United States were defrauded of voting rights by various devices. I cherish to this day the 1963 receipt for poll taxes paid by my parents and recall the names and faces of Black people in my rural southwest Arkansas community who picked cotton to make enough money to pay the taxes so our elders could vote. Now, the descendants of those elders are openly disenfranchised by voter suppression schemes.
Red Summer of 1919
Three generations after the U.S. Civil War ended, a season of racial violence occurred in the United States that historians term the Red Summer of 1919. White mobs terrorized and murdered Black neighborhoods at will and without fear of prosecution. The Red Summer concluded in Arkansas, my home state, near the rural community of Elaine in southeast Arkansas, when hundreds of Black men, women and children were massacred by a white mob and federal troops (who traveled from Little Rock aboard a troop train accompanied by Gov. Charles Brough) over the course of several days beginning on Oct. 1, 1919.
No white person was arrested for or charged with committing any of the murders, planning the massacre or participating in it. Land, livestock and farm implements that belonged to the massacred people and their terrorized survivors were not restored to their descendants.
The Elaine Race Massacre of 1919 transformed a community of industrious, enterprising and upwardly mobile Black people who owned some of the most fertile land in Arkansas into some of most impoverished people in the United States. This happened in my home state under “the rule of law.”
To this day, the descendants of the massacred, plundered and terrorized people have not received restitution or reparation. It speaks volumes about the moral and cultural competence of “rule of law” cheerleaders when a travesty of this magnitude has not been addressed by white lawyers, judges, legal scholars, legislators, prosecutors, governors, religious leaders, columnists or other influential leaders from Arkansas (including former U.S. President Bill Clinton and former U.S. presidential candidate Hillary Clinton).
It’s hard to see progress
That is why Minister Sisulu’s opinion column resonated with me. In the same way the 1994 South African Constitution did not provide for reparations or restitution for woes suffered by Black South Africans because of apartheid, the U.S. Constitution, which deliberately gave a bonus representation to slaveholding states equal to three-fifths of the number of their disenfranchised enslaved Africans, never has contained a provision for reparations or restitution to descendants of enslaved Africans.
Instead, descendants of enslaved Africans are accused of being “unqualified” affirmative action contenders for public office and private enterprise. Notice how President Joe Biden’s pledge to nominate a Black woman to fill the pending vacancy on the U.S. Supreme Court caused by the upcoming retirement of Justice Stephen Breyer is criticized by people who are beneficiaries of centuries of white male privilege concerning judicial service.
A generation ago, Randall Robinson wrote about what the United States owes Africans and African Americans for the damage Black people suffered and continue to suffer because of centuries of slavery, segregation and discrimination perpetrated under “the rule of law.” After quoting the long-settled legal principle that a party wronged by unjust acts is entitled to recompense so the wrongdoer is not unjustly enriched, Robinson wrote:
Only in the case of Black people have the claims, the claimants, the crime, the law, the precedents, the awful contemporary social consequences all been roundly ignored. The thinking must be that the case that cannot be substantively answered is best not acknowledged at all. Hence, the United States government and white society generally have opted to deal with this debt by forgetting that it is owed. The crime — 246 years of an enterprise murderous both of a people and their culture — is so unprecedentedly massive that it would require some form of collective insanity not to see it and its living victims.
But still many, if not most, whites cannot or will not see it (a behavior that is accommodated by all too many uncomplaining Blacks). … America accepts responsibility for little that goes wrong in the world, least of all the contemporary plight of Black Americans. And until America can be made to do so, it is hard to see how we can progress significantly in our race relations.
Thank God for these voices
I thank God for Randall Robinson, Derrick Bell, Michael Eric Dyson, Nicole Hannah Jones, Kimberle Crenshaw, Cornel West, Tavis Smiley and others who refuse to allow the massive debt owed Africans and African Americans to be disregarded and disallowed by the “willed forgetfulness” and “collective insanity” rationalized by reliance on “the rule of law.”
“Without reparations for racial injustice, there is no reason to talk about racial reconciliation, let alone imagine that it is likely to happen.”
I thank God that Lindiwe Sisulu refuses to allow reliance on “the rule of law” to silence the rightful claim of South Africans to the reparation owed for the land, labor and other wealth stolen from them for centuries.
And I thank God for Martin Luther King Jr., Malcolm X, James Cone, Jeremiah Wright Jr., Allan Boesak and other prophetic religious and secular leaders who proclaim a festering inconvenient truth.
Without reparations for racial injustice, there is no reason to talk about racial reconciliation, let alone imagine that it is likely to happen. Reconciliation talk only serves the status quo interests of people who now benefit from centuries of white supremacy, domination and land theft, labor theft and state sanctioned thuggery, and who shamelessly assert the right to continue doing so.
The “rule of law” is a white supremacist sham. Victims of the colossal crimes committed with impunity in South Africa, the U.S. and elsewhere thanks to that sham should reject “reconciliation” appeals manufactured to enable, protect and continue that criminality in perpetuity.
We should demand reparatory justice. Shame on us if we won’t and don’t.
Wendell Griffen is an Arkansas circuit judge and pastor of New Millennium Church in Little Rock, Ark.
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