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Copyright © and Moral Rights for This Phd Thesis Are Retained by the Author And/Or Other Copyright Owners Brett, Peter (2015) The judicialisation of political order in Southern Africa. PhD Thesis. SOAS, University of London. http://eprints.soas.ac.uk/id/eprint/20390 Copyright © and Moral Rights for this PhD Thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This PhD Thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this PhD Thesis, full bibliographic details including the author, title, awarding institution and date of the PhD Thesis must be given e.g. AUTHOR (year of submission) "Full PhD Thesis title", name of the School or Department, PhD PhD Thesis, pagination. 1 THE JUDICIALISATION OF POLITICAL ORDER IN SOUTHERN AFRICA Peter Brett Thesis submitted for the degree of PhD Department of Politics and International Studies, SOAS, University of London 2 Declaration for SOAS PhD thesis I have read and understood regulation 17.9 of the Regulations for students of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed: __________________________________ Date: ____________________ 3 ʻThat seeming disorder which in essence is bourgeois order in the highest degreeʼ. Fyodor Dostoyevsky, Winter Notes on Summer Impressions. (Evanston: Northwestern University Press [1863] 1988, 37). ʻI have come to bring fire on the earth, and how I wish it were already kindled! [...] Do you think I came to bring peace on earth? No, I tell you, but division. From now on there will be five in one family divided against each other, three against two and two against threeʼ The Gospel According to Luke (NIV) 12:49, 51-2. 4 Abstract The last three decades have seen courts and constitutional bodies worldwide expand their activities beyond the application of individual rights provisions and basic procedural justice norms into what Ran Hirschl (2008, 98) calls ‘an elusive yet intuitive category of ‘existential’ national issues’. This study aims to describe, explain and assess the sub-Saharan African dimensions of this shift. Its focus is on the politics of three high-profile cases from the continent’s Southern region. The first, Campbell v Republic of Zimbabwe (2008), was brought by farmers opposing Fast-Track Land Reform in Zimbabwe. The second, Sesana v The Attorney General (2006), challenged Botswana’s decision to relocate the inhabitants of the Central Kalahari Game Reserve. The third, The Herero People’s Reparation Corporation v Deutsche Bank AG, et al. (2001), demanded reparations for colonial atrocity outside of bilateral relations frameworks. All three have had significant political consequences, and have provoked ‘backlash’ from regional governments. But none have shown any significant movement towards resolution. The first part of this study describes this phenomenon. The second provides an interpretive explanation for it. Drawing on the work of Donald Davidson and Mark Bevir, it highlights the emergence of new human rights beliefs in the 1970s. These can be explained by dilemmas emerging from a dual crisis of socialist utopias and modernist administrative orthodoxies. Foucauldian and constructivist theories can account neither for the emergence of these new beliefs, nor for the impossibility of deriving new behavioural norms from them to resolve political disputes. There are particular weaknesses in constructivist ‘norm spiral’ models of transnational mobilisation, knowledge-gathering, and international institutionalisation. This study’s third part argues that new rights beliefs have expanded into realms of fundamental political order. Drawing on the work of Bernard Williams it provides an evaluative argument for the moral priority of Hobbesian ‘first questions’. 5 Acknowledgements Four years is enough time to accumulate numerous debts, especially when venturing into new fields. Southern Africanists have proved very welcoming. Larissa Förster and Dag Henrichsen were exceptionally helpful, and Dr. Förster provided invaluable advice about interviewing in Namibia. Jennifer Hays and Sidsel Saugestad pointed me in the right direction for Botswana. Jocelyn Alexander and Blessings-Miles Tendi assisted greatly with the Zimbabwean context. Thanks to Sam Wilkins I was able to address Professor Alexander's seminar group at Oxford, and received excellent feedback, particularly from George Karekwaivanane and Phillan Zamchiya. In other disciplines, Siri Gloppen made detailed and very helpful comments on this study's political science aspects. Line Gissel, as well as an excellent audience at the ECPR Annual Conference in Bordeaux, sharpened its international relations components. The postgraduate seminar at the SOAS Law Department was very tolerant of a layman's blunderings. At a crucial early stage, finally, Burcu Ozcelik invited me to a very searching Staff and PhD Student Colloquium at POLIS, Cambridge. Despite all this academic generosity, however, it is my interviewees who deserve the most gratitude. Almost all gave up hours of precious time to discuss these issues with (if not explain them to) a perfect stranger. Some even made comments on an early draft. It would be wrong to single anyone out. Suffice to say that I cannot thank them enough. (The usual disclaimers apply more than ever.) Closer to home, I am grateful to SOAS for paying my fees and for a return ticket to South Africa. A number of people have made me welcome here. Phil Clark, especially - like Dave Harris before he took up his new post - has treated me like a friend and colleague, and made me feel like I belonged. Steve Hopgood has helped make the SOAS Politics Department an exciting place to study rights politics, and, again, has treated me like a valued colleague. A number of events he and Leslie Vinjamuri have helped to organise have greatly stimulated my thinking. I've been fortunate that Peter Katzenstein, Clifford Bob, Jack Snyder, Karen Alter and Christian Reus-Smit have all come to SOAS to discuss matters relevant to my research. More mundanely, but no less importantly, Bala, Felix, Verity, Jamil, Pritish, Adam, Poppy, Nino, Parimal, Amy, Jack, Jon, Calum, Charlie and (latterly) Alberto have kept me housed and in a good mood throughout. The final debts to be acknowledged are, however, the most serious. This PhD would not exist had it not been for the (genuinely) inspirational teaching and intellectual companionship of David D'Avray and Tom Young (who supervised it). Also, it could not have been written without Myriam, and everything that she has done for me, as well as my parents' love and constant support. 6 Table of contents Part I Chapter 1: Introduction 1. Prelude 16 2. Introduction 17 3. Fundamental political order 19 4. Conceptual clarification 21 5. Case selection 22 6. Method and materials 23 7. Structure 24 8. Summary 25 Chapter 2: Commercial agriculture and indigeneity in Zimbabwe 1. Introduction 28 2. Judicialisation 28 (a) The pre-independence context 28 (b) 1980-1990: informal negotiation 29 (c) 1990-1997: polarisation and the technocratic response 30 (d) 1997-2001: political crisis and domestic judicialisation 32 (e) New litigants and global judicialisation 36 3. ‘As one door closes, another one will open’: FTLR and international law 40 (a) Introduction 40 (b) ‘Weapons of the weak’ 41 (c) Backlash 41 (d) Other legal avenues 43 4. Impossible compliance 51 5. The MDC, the 2013 constitution and democratic solutions 54 6. ‘There’s no right or wrong answer’: liberals against human rights 58 7. Conclusion 60 7 Chapter 3: Rural order in Namibia: history, recognition, and traditional authority 1. Prelude 61 2. Introduction 61 3. The judicialisation of recognition 62 (a) From informal to bureaucratic arenas: the South West-African ‘homelands’ 62 (b) 1990-2000: Independent Namibia and limited judicialisation 63 (c) 2000-: The global judicialisation of struggles for recognition 67 4. Human rights are not rules: ‘compliance’ with new reparations norms 68 (a) Introduction 68 (b) Denying the validity of universal norms and ‘tactical concessions’ 69 (c) ‘You can’t just litigate these things away’: the norm spiral’s final stages 73 5. Conclusion 84 Chapter 4: Who is indigenous to Botswana? 1. Introduction 86 2. Terms 86 3. The pre-independence context 87 (a) Incorporation into Tswanadom 87 (b) Colonial assimilation 88 (c) Colonial modernist integration and the creation of the CKGR 88 4. Judicialisation 90 (a) 1966-1989: San development in bureaucratic arenas: modernist integration in Botswana 90 (b) 1989-1996: Indigenous rights and new judicialisation strategies in Botswana 94 (c) 1996-2002: Judicialisation in the CKGR or negotiated solutions neglected? 97 (d) 2002-6: Sesana and the judicialisation of mega-politics in Botswana 101 5. After Sesana: non-compliance as lack of socialisation 107 6. Conclusion: human rights promotion as cultural change 110 Part II Summary 115 8 Chapter 5: Theoretical introduction 1. Introduction 116 2. Order in contemporary rights critique 116 3. Taking rights theorists seriously
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