On Feb. 11, 1990, my grandfather came to Ilorin from Koro for a visit to his grandchildren. He had to go to my father’s office first, so that my dad could bring him home as there was no one at home when he arrived in Ilorin. My grandfather was quite insistent on being brought home as quickly as possible. He wanted to put on the radio and listen to the news. Something people of my grandfather’s age thought they would never see in their lifetime was happening. This was the day Nelson Mandela was set free after 27 years in prison. For those of us who grew up in the 1980s and 1990s, apartheid was something both far away and very near.We had watched live coverage of the Paul Simon’s 1987 concert in Zimbabwe, we had watched so many films about apartheid, we sang anti-apartheid songs, we saw news reports of shootings in Soweto, and made constant donations to the ANC. All these were woven into the tapestry of our lives. After the election in South Africa in 1994, when Mandela became president, preoccupations with apartheid withered away.

Years later as a Law undergraduate I wrote my dissertation on the continuing relevance of the crime of apartheid. I was and continue to be concerned that the lessons of history seem to have little impact of the rights and laws that we advocate for. We almost always fail to note the continuities in law and society that suggest that oppressive systems do not die, they only become reborn. To understand why I say this, an understanding of the nature and structure of apartheid is required.

What is apartheid?

Apartheid, is defined as the policy and system of laws implemented and enforced by the white minority governments of South Africa from 1948 to 1990; and by extension, any legally sanctioned system of segregation. This definition can be found in Article 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid. The most intellectually interesting and relevant thing about apartheid, was the system of laws that kept it in place. These laws predate 1948. The first such legislation denounced by the African National Congress was the Natives Land Act 1913 of which Solomon Plaatje wrote ‘awakening on Friday morning, June 20th 1913, the South African Native found himself a pariah in the land of his birth.’ These were laws that were deliberated upon by seemingly rational people who sat on commissions like the Sauer Commission which states in its report: ‘The policy of apartheid has grown out of the experience of the established white population of the country, and is based on the Christian principle of right and justice… The National Party realizes the danger of the flood of Africans to the cities and undertaken to protect the white character of our cities.’

The apartheid government attempted to divide the internationally recognized State of South Africa into a number of sub-states. Some 87% of the land was reserved for White people and people officially classified as Indians. About 13% of the land was divided into ten fragmented “Homelands” or “Bantustans” for Black people (who represented 80% of the population). The South African Army would intervene to remove homeland governments that implemented policies not to the government’s liking. The purported autonomy and independence granted those homelands were therefore merely an illusion.

To keep this illusion in place at least 317 Acts specific to racial segregation were passed by the apartheid government. They served to legitimise the idea of separation predicated on presumptions of inferiority. The Prohibition of Mixed Marriages Act 1949, prohibited marriage between races. The Population Registration Act 1950 led to the creation of a national register in which every person’s race was recorded. The Group Areas Act 1950 extended the provisions of the Natives Land Act 1913. It forced physical separation between races by creating different residential areas for different races. The Separate Representation of Voters Act 1951, together with its 1956 amendment led to the removal of people who were classified as non-white from the common roll onto a separate roll. The Acts required that Black people elected White representatives only. The Natives (Abolition of Passes and Coordination of Documents) Act 1952, was commonly known as the Pass Laws. This ironically named Act mandated Black people to carry identification with them at all times. In summary, the race-based laws, governed where one could live, who one could marry, where your children could go to sleep, where one could be, who one could vote for… all your hopes and dreams were determined by which [very unscientifically demarcated] race you happened to be born into.

Legal ≠ Lawful ≠ Justifiable ≠ Just ≠ Right

The overt brutality of the apartheid government ensured that eventually, there was internal and external agitation against apartheid. [Though official international condemnation happened very, very, very slowly.] Nelson Mandela and Oliver Tambo were members of the ANC at the forefront of the anti-apartheid movement. In 1962, the security police captured Nelson Mandela. Oliver Tambo had been sent away from South Africa to seek international support for the anti-apartheid movement. The UN General Assembly passed the International Convention on the Suppression and Punishment of the Crime of Apartheid on the 30th of November 1973. African states and other post-colonial/third-world states were instrumental in international anti-apartheid agitation. In 1976, 33 African and other countries boycott the Montreal Olympics in protest of New Zealand’s rugby tour of South Africa. Individual citizens across the world began to boycott companies and products associated with the apartheid government. Eventually the economic strength of apartheid was broken, by the ‘powerless.’ In 1990 Nelson Mandela was released. At 12.19pm, on 10 May 1994, Nelson Mandela was sworn in as the first Black President of South Africa.

There are number of reasons why the foregoing history is still relevant. Apartheid was sustained by laws. Laws can be wrong, unjust discriminatory, it is never sufficient to say ‘well, this is legal.’ We need to question the justness of laws, as we need to question the justness of humanity. Secondly, apartheid may have had a different name, but the idea that artificially created difference is a marker of inferiority has never left the landscape of humanity. Thirdly, we must always remember that inaction by world governments will result in the destruction of humanity, we saw this in Rwanda and Bosnia and we see it in Syria and the Mediterranean. We see this in environmental destruction and global poverty. We have a responsibility to step up, because governments will not till we do. We should also remember that the powerless are only so, if they think they are. It was the powerless that ended apartheid, not the powerful. The current state of South Africa gives us cause for caution. Laws may be repealed, and new laws may be passed but this is insufficient for real change. If the fibre of humanity is decayed, legal reform is cosmetic. Change must go beneath the surface. Change must be sustained.

Most importantly the study of history is always relevant. Ralph Waldo Emerson, said, ‘The use of history is to give value to the present hour and its duties.’ There are many historical and contemporary situations reminiscent of apartheid.

The Indigenous American: From before the American Civil War (1861-1865), indigenous Americans were assigned to different areas known as ‘Indian Territory’. The India Intercourse Act 1834 prohibited Whites from entering into ‘Indian Territory’. The Dawes Severalty Act 1887 divided tribal lands into small plots, which were then distributed to individual members of the tribe. 47 million acres went to Native Americans. 90 million acres of the best plots of land were sold to Whites. Laws and separation predicated on difference.

The African-American: After a long history of enslavement, in 1870 the Fifteenth Amendment was passed which gave Black people the right to vote. However, this right was subject to literacy tests, poll taxes and property qualifications, which allowed blacks to be disfranchised. The US Supreme Court in Williams v Mississippi (1898) held that literacy tests were constitutional. Louisiana adopted the Grandfather Clause which allowed anyone to vote only if the fathers and grandfathers had voted before 1867, a time when no Black people had been allowed to vote. The Supreme Court in the case of Plessy v Ferguson, held that segregation was not a violation of a citizens’ rights. Laws and discrimination predicated on difference.

Despite changes in law, there continue to be racial disparities in the US adversely affecting people of colour. In areas of health, wealth, employment, education and particularly within the criminal justice system, earlier disparities have only shifted slightly. Read more.

[NOTE August 2020: The last four years has seen the greatest incursions into the voting rights of African Americans. This against a backdrop on unending police brutality against Black people.]

Israel and Palestine: In April 2002 Israel declared that the West Bank and Gaza Strip would be cut into eight main areas, outside of which Palestinians could not live without a permit. Settlement expansion went on unabated: more than 2500 houses and 52 settlement outposts were constructed between September 2000 and January 2003. The construction of the wall between Israel and the West Bank, expected to be at least 360 km long, has established a unilaterally Israeli border that encroaches on the 1967 boundaries and cuts Palestinian areas off from each other. Laws and separation predicated on difference.

Palestine continues to suffer the effects of occupation.

South Asia’s Untouchables: At the very bottom of this social strata are the ‘untouchables’ or ‘Dalits’. The caste system is very rigid. A member of one caste may not move to another caste, higher or lower. It is totally impossible. People designated as untouchables are discriminated against, denied access to land, forced to work in slave-like conditions and abused, even killed at the hands of the police and of people designated into higher-caste groups that enjoy the state’s protection. Apart from India, the caste system is also well-grounded in Nepal, Sri Lanka, Bangladesh, Pakistan and Japan. In 1950, untouchability was abolished under India’s constitution. However, these laws are openly disobeyed. It is culture-based discrimination not law-driven. Laws, indifference to laws, discrimination and separation predicated on difference.

Global Apartheid: This ‘is an international system of minority rule that promotes inequalities, disparities and differential access to basic human rights, wealth and power.’ The inequalities of the present, build on a foundation of the old inequalities like slavery and colonialism. Global apartheid entrenches great disparities in wealth, living conditions, life expectancy and access to government institutions with effective power.

According to Salih Booker and William Minter, (writing in The Nation – 2001) this disparity relies on the false assumption:

“… that it is ‘natural’ for different population groups to have different expectations of life. In apartheid South Africa, that was the rationale for differentiating everything according to race, from materials for housing to standards of education and healthcare. Globally, it is now the rationalization used to defend the differential between Europe and Africa in funding for everything from peace keeping to humanitarian assistance ($ 1.23 a day for European refugees 11 cents a day for African refugees.”

Jason Hickel asks and notes:

‘Why is it that the barons of international development judge the lives of people in the global South by $1.90 per day, when everyone agrees – including the World Bank itself – that this standard is far too low for a human being in the global North? For comparison, the poverty line in the US is $15 per day. There is a clear double standard here, and it does not take much to recognise that it is racist. There is one standard for the (majority white) people of the North, and another standard for the (majority Black and brown) people of the South. It is a colonial logic that remains with us today, and goes unchallenged year after year.‘

The gradations of privilege according to group correlates tightly to the possibility of crossing barriers from the “homelands”, to the more privileged, geographical areas. Like South Africa apartheid’s influx control, the immigration barriers of self-styled ‘developed countries’ do not succeed in stopping the flow of people despite raising the costs of enforcement. But requires necropolitical policing.

In his book, Unraveling Global Apartheid, Titus Alexander says ‘the G7 countries have 12 percent of the world’s population, but they use over 70 percent of its resources in cash terms and dominate all major decision-making bodies.’ Again this maps closely to the apartheid situation where wealth was extracted by a minority of the population. So if there was a global agitation against South African apartheid, why not also against all the other manifestations of apartheid-ness?

Conclusion

Apartheid is sometimes considered to be one of the world’s greatest evils. However, we need to remember it, so that we do not relieve its horrors. We need to remember its lessons. We need to continue to fight apartheid wherever it appears. Our job is not done. Sometimes the smallest things makes the biggest changes. Legal does not always mean right. The passage of a law does not mean the inherent rights/protections are just; the repeal of an unjust law is not a magic wand to remove years of injustice. It is the people that bring about change. Change must begin at the grassroots and go back to the grassroots. Ultimately, power belongs to the people. It is the people who ensure that injustice does not persist. But for now, we stand side by side with history’s name-changing ghosts, their injustices still haunting us. Still. But. We move.

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