In February 2018 I began writing a Master of Laws (LLM) dissertation under the topic, “The call to decolonise higher education: copyright law through an African lens”, and in February 2020 I submitted it for examination. In this brief exposition, I share some personal insights, reflections and musings that remained stuck in my heart throughout the dissertation-writing process, but could not make it into the dissertation itself, owing to their “personal” nature.
Indeed, Steve Biko was the last person to write what he likes because existing academic strictures remain heavily steeped in formalist colonial claptrap. It insists that the personal can never be objective, and thus fails to meet the proverbial “scientific standard”. Academic dissertations, and most academic writing, hardly allow one to tell their story – academia has a longstanding fetish for science, facts and the infamous “literature review”.
This exposition does not explain the essence and theorisation that underpins decoloniality as a study, because this has been done, satisfactorily, in the dissertation (as soon as examiners have satisfied themselves with it, I shall share it. For now, wait and pray with me). Rather, it is a personal story of how fucked-up or shitty the LLB degree is, and why the task to decolonise legal pedagogy is extremely important.
When I was younger my dream career was to become a high school English teacher. I was mostly inspired by my high school English teachers, Mr Gcobani Kalipha, Mrs Sarah Enchakathu, and Mrs Sonto Khumalo. These three were crucial in sparking my love for English literature, prose, poetry and everything in between. For them, the essence of English was not its history nor content, but instead its ability to awaken one’s imagination.
Mr Kalipha, as a Xhosa man, would teach us English by contrasting it with isiXhosa – sometimes with isiZulu folktales and related histories of Black people (these include stories about anti-colonial wars and the resistance of land occupation led by local Kings and Chiefs such as Ingwenyama uNyabela, Kgoshi Sekhukhune I and others).
Mrs Enchakathu, on the other hand, taught us that English poetry, just as with poetry in other languages, can be rescued from the hands of the poet, and be made personal to the reader. What makes poetry, poetry, is its timelessness – how you can read the same poem for twenty years, and be able to see/feel it differently every single time you read it.
Mrs Khumalo (in matric) taught us the etymological value of words – she would insist that the non-English origination of words gives them nuances that remain untapped in ordinary everyday usage of the language: “Yeh nina mantombazana, you must be a Bitch in your bedrooms”, I vividly remember her saying these words to explain to us the meaning of the word, “aloof” as it was used in the play, “The Crucible”. The play had used the word to describe the wife of John Proctor, Mrs Elizabeth “Goody” Proctor. The writers of the play had explained that John Proctor cheated on Goody Proctor, and had an affair with a younger, and more exciting “Abigail” because Goody Proctor was “aloof”. For the two months that followed, our English classes were a buzz, and exciting because we were encouraged to study words beyond their ordinary meaning.
Towards the end of my matric year, I applied to three different universities and my first choice as a qualification was Bachelor of Education. Everyone (friends and family included) exclaimed that I was setting the bar too low (by wanting to become a teacher) and that I should aim higher for myself. I do not blame them for saying this – the colonial and capitalist setting invariably has the consequence of making it seem that some types of work become less work and more glamourous in certain instances. Of course, this is not true, because work is work and is inherently oppressive to all working-class people. What is true is the “status” that comes with certain job titles. For instance, between being called “Dr” as a medical doctor in comparison to “Mr” as a high school teacher, makes for a fickle differentiation based on capitalist-sponsored motivational stoicism and farcical optics. Lo and behold, their peer pressure got to me, because in the second semester of 2012 I registered for what was my second choice; a Bachelor of Law degree (LLB) and completed it in 2016.
At my age of relative intellectual and academic maturity, I am able to reflect on the LLB degree and the impact it has had on me as well as many of my “jurist” peers. I am also able to remember how I was before my degree and what I turned out to become post-Gaudeamus Igitur. Before my degree, I loved fiction, prose and poetry – at some point, I used to write some of my own poetry. In 2012, all of this changed – I started reading purely non-fiction; from legislation to case law, academic articles, LLD dissertations, citations, to the histories of Hugo de Groot, Paulos Voet, Van der Keesel and others. Of course, this was an [unwritten] rule for law students: “Be concerned with two things only; (1) the law, and (2) the facts”.
Because of my involvement in student activism, and politics of the Radical Left, I also began heavily reading revolutionary literature (more non-fiction). This was the very literature that I had been familiar with since high school, but I now read it with more vigour and precision, because “the lawyer must know facts and the law”. This made me popular, and somewhat of a sage among my immediate comrades, not to mention fellow law students. But, what it did was kill my imagination – the ability to imagine things beyond their normal formulations. This is the reality of most (if not all) South African LLB graduates – they lack imagination.
Pay attention to how law students, graduates, academics and practising attorneys or advocates always have the habit of masquerading as the smartest people in the room. I can tell you without fear of error that such posturing is, unfortunately, that – automated posturing. South African trained lawyers are not-so-smart; they are robots. At the back of their minds they too know that they are not smart because their kneejerk reaction to every discussion or debate is “the Constitution says”, or even worse, “the court has dealt with this matter, and its findings are final.” It is not their fault as the LLB degree has stolen their imagination. They are unable to think outside of the law – to them, the law enjoys a God-like status and should be used to respond to all societal conundrums.
It is no surprise therefore that a senior black advocate, in relation to the on-going debates about expropriation of land without compensation, would be heard saying that “the constitution needs no amendment, and that instead, the courts should play a major role in determining compensation or no compensation”. Indeed, such “averments” lay bare the inability of South African lawyers to imagine justice outside of the court and beyond the Constitution – a fatal error contained in the LLB curriculum.
Recite Lesego Rampolokeng’s “Law is not Justice. You want law you go to court. You seek justice you take it to the streets” to South African law graduates, and see them squirm in agonizing discomfort. It is not of their own making – the LLB curriculum has given rise to such a reaction.
Decolonisation’s task is to reverse the legacy of epistemicide that prevails in the LLB curriculum. As a response to epistemicides and linguicides, it should be tasked with implementing the “13 Ds of Decolonisation”. It should be tasked with giving meaning to conceptual decolonisation by centring African thought and the epistemic traditions of the global South. What is most important, however, is that all of these should endeavour to re-teach, re-awaken and re-ignite a law student’s imagination. A decolonised lawyer is a lawyer with an imagination. Mayibuye!
*** Ntando Sindane is an emerging researcher and academic at Unisa’s department of mercantile law. He writes in his ideological capacity.
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