As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The re-emergence of a virulent form of identity politics poses a serious threat to South Africa’s democracy and the freedom of its citizens. Wherever one turns there are people who insist that there is one authentic way to be African, Afrikaans, Zulu, Xhosa, gay or lesbian, white, black, heterosexual, Jewish, Christian, Muslim, or atheist and that if one does not conform to one of these essentialist stereotypes one is somehow inauthentic and fake, not worthy of being shown respect and of being taken seriously. Identity is thus used to try and silence critics, to enforce conformity and obedience within the group and to banish those who refuse to perform their “essential” identities from the policed group itself.
Growing up as a white Afrikaans boy in the threatening shadows of apartheid, I was often told that certain beliefs and actions and certain people were “volksvreemd” (alien to the “Afrikaner nation”). Beyers Naude, Bram Fischer and Frederick van Zyl Slabbert were volksvreemd. Listening to “Queen”, “The Rolling Stones” and “The Beatles” were volksvreemd – unless one played their songs backwards to identify the dangerous messages from the devil supposedly contained in them in order to confirm how volksvreemd these bands really were. Being an atheist or criticising National Party leaders like BJ Vorster and PW Botha were volksvreemd. Dancing on a Sunday and being a moffie were volksvreemd. Marrying an Engelse meisie or, god forbid, sleeping with somebody classified as “coloured” or “African” were beyond volksvreemd. And, of course, opposing apartheid and supporting the struggle against it was definitely volksvreemd.
Some people were devastated when branded as volksvreemd. (Others rather revelled in being excommunicated from the very “tribe” in charge of perfecting apartheid.) Volksvreemdes were often shunned by family and friends, ridiculed and shamed, told that they were not “true” Afrikaners (whatever that might be). Their views could therefore be ignored, laughed at or branded as “dangerous” or “inauthentic”. At best, they would be pitied for having lost their way. At worst, they would be banished.
The Afrikaner establishment thus attempted to police the thoughts and behaviour of white Afrikaans speakers to ensure that not too many of us would become critical of the government or ask too many questions about the injustices of the world we lived in and from which we benefited socially and economically. We were told that there was only one “right” way to think about our world and our place in it and one “right” way to live if we wanted to be viewed as authentic Afrikaners.
I was recently reminded of this oppressive past by several public statements. President Jacob Zuma was reported as saying that black people should not keep dogs as pets because it is “un-African”. Then Gillian Schutte, in a widely read open letter, called on “white people” to recognise that by jumping in on national debates “that do not concern them” they are usurping a platform for “authentic black voices”. And yesterday ANC spokesperson Jackson Mthembu attacked Lindiwe Mazibuko for criticising President Jacob Zuma who said that one’s business will multiply if one donated money to the ANC by stating that Mazibuko is “naive when it comes to African traditions” which she cannot relate to. “It is our tradition as Africans that if someone gives you something, in return you thank him/her and wish them prosperity and abundance,” Mthembu said in a statement.
What all these comments may have in common, it seems to me, is that they accept that there is a “right” way and a “wrong” way to be African and that those who are “real” Africans are worthy of respect and to be listened to while those who are not, can be ridiculed and dismissed as being un-African or need not be taken seriously. One either has an authentic black voice or one is inauthentically black (whatever that may mean). One is either a true African (who likes people more than dogs, embraces a certain traditional culture and rewards those who look after you) or one is un-African and therefore lacks credibility, authenticity and any authority to be taken seriously.
Some commentators even imply that the authentic, “truly African”, identity ought to be strictly policed and that those who do not conform (because they have become “too white”, because they twang when they speak English, because they sleep with members of their own sex, because they have become too critical of their elders or the leaders of the ANC) must be expelled from the group and branded as “coconuts” (sorry for having to use this offensive term), or race traitors.
Although I am referring to African identity, I could just as easily have used examples showing how the identities of women, gay men and lesbians, Afrikaners, or Jews are policed. A woman who does not like to cook for “her man”, or wears a miniskirt or is not monogamous is suddenly not a “real” woman. A gay man who knows nothing about Judy Garland or does not support same-sex marriage is suddenly told that he is in denial about his sexuality. An Israeli who criticises the occupation of Palestine becomes a self-hating Jew. An Afrikaner who supports the ANC once again becomes a volksvreemde verraaier.
By complaining about the oppressive and disciplining power of essentialised identities, I am not denying the fact that there are sometimes strategic benefits to be had from pretending to belong to a more or less stable and fixed identity group. Claiming to belong to a marginalised identity group helps us to resist oppression and marginalisation and to challenge the economic and social dominance of the privileged group, whose inferior opposite we have been defined as.
That is why, for strategic reasons, some of us resist homophobic oppression by invoking our identities as gay men and lesbians – even as we know that there are a million ways to love and desire members of the same sex. Some of us insist that it is important to address the effects of past and on-going racial discrimination by pretending that there is an easily identifiable group called “Africans”, and that this category can be used to implement effective and necessary redress policies – even as we know that there are a million ways in which such “Africans” can choose to live their lives.
Ironically racism thrives on the assumption that all people who are black (or all people who are white, for that matter) are exactly the same; that they have no individuality; and that people who belong to the despised race possess no personal attributes and characteristics not associable with their race. That is why the strategic use of identity categories will not be without its problems and dangers.
Given the fact that identities are always based on a “them” and “us” logic, and given that there is always a hierarchy of dichotomous identities (heterosexual vs. homosexual; black vs. white; male vs. female) which allows members of the dominant identity group (whites; heterosexuals, males) to exploit their cultural, social and economic dominance and to benefit from it, this kind of exploitation and oppression will only end if we manage to destabilise or even destroy the logic of (and the belief in) essentialist notions of identity categories such as race or sex or sexual orientation. The paradox is that we need racial (and other) identity categories to resist racial (and other forms of) oppression, even as we run the risk of thereby perpetuating the very system that we need to destabilise or even destroy.
The only way out, so it seems to me, is to challenge the notion that there is one authentic or true or inevitable way in which one is supposed to be African, to be gay and lesbian, to be white, to be a woman. One should note that the only thing one really always has in common with all other members of any of the identity groups that one might associate with is the shared experience of either the oppression and marginalisation caused by the prejudices of others or by the shared experience of benefiting from being seen as a member of a dominant identity group.
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