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THE STATE AND ‘TRADITIONAL AUTHORITIES’ IN ANGOLA: MAPPING ISSUES Armando Marques Guedes Many contemporary African States have been diagnosed as suffering a crisis of legitimacy1 Such understanding is not unconnected to the often turbulent processes of State-building in which they are engaged Much about the contemporary crises is rooted in the notorious uneasiness which these only recently reconfigured and often fragile States commonly show when they try to yet again adapt – and to so once more at an unhealthily high speed – now to a world rapidly engaged in the changes accompanying the processes of transformation we call globalization But there are other, more historical, reasons, for a debit in legitimacy which we can easily detect: some of it is also undoubtedly anchored to normal growing pains, a banal, if transient, state of affairs aggravated by a vulnerability to the veritable economic tours de force of the generation of African leaders who succeeded the charismatic Founding Founders of the immediate post-colonial period Further reasons are also well worth underlining Many of them are decipherable on a purely synchronic plane It seems clear that many of the current African legitimacy crises that we can easily detect should also be linked to the presence of “hard” juridical and jurisdictional pluralisms, thick multiplicities which tend to overlap with sociological, or institutional, ones, and which make governance a hazardous business indeed, particularly when the State entities are rendered weak by the dense interactions of changing external and internal conjunctures I am grateful for the comments formulated during both my presentation of the ideas here put forward by scores of those who attended our seminar co-organized with the van Vollenhoven Institute (a prestigious section of the Leiden Law School) at the notable African Studies Centre, and the various readings my text (which I circulated) later received Apart from the rich discussion I held with the other five participants in the Leiden meeting, I want to thank, in particular, Stephen Ellis, Jan Michiel Otto and Albert Farre for their wonderful inputs, Outside the context of the seminar, this paper was carefully read by Rui Pinto Duarte, David Henley and Maria Johanna Schouten; I want to thank them also for their often detailed and always perceptive commentaries on a piece of work the responsibility for which remains, of course, entirely my own True, intermingled manifold pluralisms can be found elsewhere, and it therefore would be unwarranted to see this as a specifically African issue But in Africa they quite definitely find expression in multiple domains, they have an institutional dimension, and rather often any formats of normative harmonization appear to be all but impossible In a wide-lens comparative birds’ eye view, pluralism, in particular in sub-Saharan Africa, is not only quantitatively, but in a sense also qualitatively, more intense than almost anywhere else2 Now, it may well be that matters of apparent incongruence are just that, simple questions of appearance and thus perhaps easy to somehow solve However, this seems fairly improbable, if only by mere induction: quite a few of the studies carried out in the last two decades – if not, indeed, most them – alert us to the presence of an endless number of obstacles which hinder attempts to achieve any kind of compatibility (and thus much less any level of effective integration) between State and customary law in contemporary African political communities The lightest of glances at a century of different modalities of colonial experiments and practices tends to confirm the impression that if there is a solution somewhere, it actually has never been found So, indeed, there does seem to be a problem here In what follows I shall argue that there are indeed good and rather solid reasons for more robust doubts based on matters of simple congruence Angola is the example that I will touch upon in the present paper, but many others could be found in which I believe this to be the case A higher level of image-resolution, to spin a metaphor, brings out clearly core reasons for such a conviction: it is certainly by no means difficult to glimpse the many advances and retreats on the operation of the systemic grids which over the years have exerted strong pressures on the arduous and not very successful processes of recognition of local sources of law in Africa One of the most iconic of these fluxes and refluxes has surely been that embodied in the to-ing and fro-ing of the domains of subsidiary jurisdiction connecting budding African States with the so-called “traditional authorities” As a matter of For a much more developed discussion of these points and associated doubts about the very possibility of formulating generalizations about “Africa”, see my Armando Marques Guedes (2004) monograph, particularly its first section fact, the scope formally given to “traditional authorities” seems to me to be one of the most significant and interesting fluctuations of all those we can analyse And this not only because of the plethora of juridical and political implications such movements generate, but also since such forms of emblematic “devolution” constitute one of the foremost ingredients at the level of the effective spread of a political constructive awareness of the intricacies of legal and institutional pluralism in Africa They also delineate one of the arenas in which formal and informal external pressures (both from the international State system and form the donor and NGO communities) make themselves more directly felt More than most, if not all, African countries, Angola was deeply scarred by the Cold War and the associated civil throes it engendered It is also thickly plural, in all senses of the term, and this pluralism has been very affected by its trajectory in the last hundred and fifty years or so As we shall see, in cases like the ones at hand the two trends often converge and strongly reinforce one another I shall dwell in a few recent Angolan case-stories which I chose for their relevance when trying to lay out some of the main issues which relate to what Jeffrey Herbst famously characterised as “the complicated dance between States and chiefs” My intention is by no means to exhaust the matter; I want merely to throw some light into what I consider to be insufficiently lit corners Doing so will then allow me – or so I hope – to recast issues in a wider framework and to equate eventual solutions Even if normative finalities are dropped, such a strategy allows for obvious gain At the very least, the cartographic effort will make it possible for us to draw limits to the possible forms of congruity and harmonization between State and “traditional” legal and political normative systems in Angola Throughout, I try to retain a posture of what I consider to be a healthy equidistance in relation to the various choices faced by Angolan Jeffrey Herbst (2000: 174) A choreography well worth looking into As Herbst himself wrote one page before coming up with that wonderful image, “one of the most contentious issues in the politics of the continent has been the relationship between central authorities and local leaders” The bibliography on these matters is immense leaders, by never really going much beyond a delineation of what we may call the general topography of issues4 A rapid draft In political and juridical terms Angola is complex indeed It is not excessive to assert that its three guiding catch words are plurality, dissemination, and volatility “Autochthonous” groups exhibit, not only marked ethnolinguistic differences, but also very diverse levels of political integration In the Northern enclave of Cabinda there are numerous matrilineal “Kingdoms” with rather steep social hierarchies This, in any case, tends to be the pattern of most Northern Angola, even as, in its North-Eastern Provinces, mixed “native” Lunda and Tschokwe who came in from the East patent quite different socio-political patterns In the North-West live Bakongo groups who were for many centuries associated within the “Kongo Kingdom” All these groups traditionally live by farming In a line running East from the capital, Luanda, and down to the coastal city of Benguela, live the Kimbundu, farmers cum traders, with some subgroups devoted to a mixed fishing economy The Central band of the huge Angolan territory, mostly highlands called the Planalto Central, is inhabited by the Mbundu farmers, who locally tend to be organized into clans and lineages in a “classical” central African mode Their Southern fringes overlap with mainly pastoral semi-nomadic Ovimbundu speakers, divided into numerous entities with very fluid boundaries or limits, both socially and territorially Southernmost Angola has been traditionally inhabited by non-Bantu Hottentots, some of them pastoralists and a few Bushmen subsisting by hunting and gathering and trade with little political integration The opposite track, in fact, of that taken by Ineke van Kessel and Barbara Ooman (1999), in a wonderful paper about the structure and evolution of traditional chieftainship in modern South Africa, far more preoccupied with the trees than with the forest, with all the advantages and disadvantages which that analytical strategy actually implies I not believe further about the facts would change the gist of this analysis, although it would definitely give it more intricacy and a wider empirical base and thus a better resolution Kssel and Ooman are concerned with establishing history and genealogy; I am worried about eventual incompatibilities For a more detailed discussion of the applicability of these guiding ideas to contemporary Angolan realities, see my Armando Marques Guedes (2005), mainly its part beyond that of local camps Urbanization is rampant in Angola, and the war led to massive and rapid waves of rural exodus A sizeable population of mestiỗos live in the main cities and in a few of the rural areas too Some hundred thousand Portuguese (some of them farmers, many business men, and a large number technical support staff) still live in Angola Cubans and Soviets have largely left, but now numerous Chinese have begun moving in from mainland China, and many are apparently settling in the Planalto Central, the historical insurgent UNITA Mbundu haven, although, for most of the 70s and 80s, the far end of the South-Eastern province of Cuando-Cubango, where the mythical Jamba was located, served as its central headquarters With the unspeakably brutal war and the very profound changes it induced, fast processes of social and cultural hybridism have shuffled boundaries which were, anyway, never that clear My point – the narrative arch of this communication, if you will – is simple and straightforward I shall try to argue that State and “traditional laws” are much more easily rendered congruent in the long-term than in the short term, particularly in cases like that of Angola, in which to legal pluralism is added a layer of a thick institutional, or dense sociological, pluralism, generating a sort of high-intensity version of pluralism, which must be carefully cartographed if it is to be politically manageable What I mainly want to stress is that, in the last instance, it seems unavoidable the general arrangement must ultimately be one of a diachronic subalternity bestowed on “traditions”, very much along the lines which jurists and political and administrative officials have argued for a very long time, although they did so for State-centric and not implicit logicalformal reasons; by this I mean that the hierarchical ascendant of State law must be clearly asserted and lines must be drawn from the outset Other, very different, models are notionally possible, which for instance involve non-hierarchical multilayered normative accommodations, and arguably we can actually see many of them in action, for instance in Europe and Canada But they will not really work in Angola, given the radical incompatibilities faced Using case-stories as examples, I will try to show why I believe this is so In other words – and, as we shall see, although I not by any means discount the possibility that laborious processes of “political accommodation”, as N’Gunu Tiny qualifies them, may partially and temporarily mitigate tensions – I am convinced that an effective and stable harmonization can only flow from a lucid awareness of what is at stake, a well pondered management of political and juridical implications as to the mechanisms of practical articulation concerned, and then (and only then) from the cautious engineering of a progressive convergence of customary practices with State ones Good or bad, this general direction seems to me unavoidable and this if only from “classic democratic” considerations In pure formal terms, a convergence in the opposite direction – that is, having the Angolan State “go native” –, would achieve the same compatibility; but the result would not be a modern State, and most probably not even something in any actual sense recognizable as a State So it is essential for what we call – with some lack of clarity about what we precisely mean – State-building, an often loosely used term I will of course dwell further into this point6 My communication is divided into three main sections First, I shall try to lay out some information I believe essential as background data This will amount to no more than a very quick and light sketch of the joint progression of, on the one hand, the articulation between central and local political-administrative structures in Angola and, on the other, the changing role there attributed to local political communities and their leaderships Alliterating Herbst, I call this joint progression a form of “synchronized dancing” The point I want to make and convey is that each of these two series is only fully understandable if and when it is placed in the context of the other; I want to show how Although I shall not here try to define “State-building”, as this would obviously exceed the limited scope of this paper So as to be sure that I am not misunderstood here, let me reformulate the point I made in the above paragraph from a slightly different angle: what I am in fact suggesting is that it is indeed possible to construe accommodation as both a constructivist and a constitutive mechanism, or process For this, it is ultimately enough to assume a less “classic” and perhaps a more “communitarian” view of things social, in the trail of Charles Taylor, Michael Walzer, Jeffrey Alexander, or Will Kymlicka, to drop but a few names I would definitely not be surprised if this is what, in the end, will actually take place on the ground, given that, at any rate, a communitarian perspective is held by most Angolan social actors Nevertheless, I will argue, these communitarian solutions shall really only work if State supremacy is guaranteed throughout And the results, even then, may be less than what we normally understand as being a State, and its workings certainly less than democratic the current practice of accommodation of “traditional authorities” is best deciphered as a convenient form of political gesturing, a risky populist one at that, and I add that it involves very real dangers which, unfortunately, are in Angola not always acknowledged In a second section, I then turn to four case-stories which give substance to my earlier point In particular, my interest here will rest on the drawing of limits Three of my examples are from the Planalto Central, the most densely populated area of the country, where Angola´s second city, Huambo, is located, and where most locals are Mbundu-speakers, the classical recruiting grounds for UNITA; not surprisingly, this is in many senses a problematic area as far as such matters are concerned My other example, the fourth and last, is taken from Cuando-Cubango, the biggest of the Angolan provinces, which occupies the entire South-Eastern slice of the country My third and final section is more interpretative As a result it is less verifiable, and therefore looser In that last section I indulge in what ultimately is nothing more than a bundle of speculative projections, even though they are (or so I like to believe) an exercise in educated guesswork Allow me to start with a few generalities and then progressively move down from those Some background, first Following two or three centuries during which European influences were thin on the ground, often harsh, fairly localized, surgical and variable, from 1884-1885 onwards (that is, after the Berlin Conference) all of Africa came under European colonial rule; the sole exception, of course was Liberia, which James Monroe had created in 1822 It is interesting to note that already at the time several legal systems operated simultaneously at the level of virtually all territorial and population units distributed in the Continent On the Magreb as in sub-Saharian Africa, legal pluralism, as we now call it, was the rule The formal attitude of the newcomer colonial administrations, which, like it or not, had to face this fact, was by no means unitary, or in any meaningful sense uniform It is quite true, as Edward Keene wrote some four years ago7, that the overall legal posture assumed by European States was somewhat uniform and it unfolded in contrast to the one that they held in their relations with one another: while in the latter case “tolerance” ruled, when interacting with Africa the rule was to push, and often to push hard, for “civilization” But the meanders of this European colonial propensity (and the lines along which they are usually interpreted) were varied and very sinuous indeed There is not much point in going into great detail here about such sinuosity and variety Suffice it to say that René David, the noted French legal comparatist, was probably right when he contrasted “l’attitude juridico-coloniale” of the British with that of the “Latins”, by which he meant the French, the Portuguese, the Spanish and the Belgians8 Although far too general, the contrast drawn out does hold some water According to R David, the latter “group” [and it is needless to assert quite a few distinctions should be operated here] tended to prefer to carry out their public administration under the aegis of the figure of “colonies” and, even when they defended Liberal ideals (as they often did), they usually adopted policies of assimilation, based on the double implicit that men were of equal value while, somewhat seamlessly, “European civilization” was deemed to be clearly superior to “African customs” The British, on the contrary, by norm favoured figures such as that of “protectorates”, and thus tended to prefer policies of “indirect rule” As is well known, this was fairly robustly theorised early in the early nineteenth century (in mainly realist political terms) by Edmund Burke, in relation to India, and it accepted the notion, at least as a general principle, that “native Africans” could, and indeed should, remain largely self-governed and should administer themselves in accordance with their own “customs” and following whatever “traditional forms” they decided to choose; albeit, of course, they were to so under British ultimate supervision and control Edward Keene (2002), mostly pp 60-120 René David (1984): 570-571 Whatever the merits of R David’s dichotomy, let me stress the obvious point – obvious, in any case, once one thinks of it for a second – that British and “Latins” quite naturally and very directly appear to have transposed to the colonial relationships they engaged in what amounted to simple variants of the decentralist and centralist conceptions and models they applied to their own local communities But this was, in practice, little more than a declaration of intentions It is fascinating to note that the French comparatist’s distinction – insofar, at any rate, as it referred to the real empirical relationships entertained between Europeans and Africans, or governors and governed if you will –, was little more than a formula9 In practice, the effective similarities, which were blatant in the concrete “administration” actually carried out by “Latins” and “British”, far outweighed differences Distinctions between publicist “Common Law” conceptualizations and the “RomanoGermanic” ones, in these as in so many other domains, showed themselves to amount to little more than mere differences in style The simplest of thought experiments renders this clear ad absurdum: it would be as unthinkable to imagine that the subjects of British colonial rule could hold their customs against Imperial laws in any really significant way, as it would be naïve to believe in a total and unquestioned hegemony of “Roman” Colonial Law vis-à-vis populations which were almost entirely alien to them In order to bring this contrast into a sharper focus, it is useful to view things in a more legal-historical fashion Indirect rule was, of course, a policy strategy mainly based on unrealized theorizations of Henry Sumner Maine and, insofar as the actual exercise of colonial governance was concerned, it was formatted by Lord Lugard10 It started in India and by the end of the 19 th This, of course, had inevitable consequences in the mechanisms and strategies for consolidation of the political and even cosmological status of those people who later were to be called, as we shall see, “local chiefs” For a rather detailed and somewhat contrastive cartography of the resultant differences in the modalities of constituting the “offices” of “chiefs”, see the paper on the Cameroon by Peter Geschiere (1993) P Geschiere compares the British and French examples It would be a fascinating exercise to carry out a similar study on the Portuguese colonial cases (Angola and Mozambique provide certainly quite different examples), which could then be compared to the post-colonial lateral equivalents 10 For a discussion of the above and other related points, it is useful to look at the classical study of T W Bennett (1981) on Zimbabwe, Martin Chanock (1985) and his timeless work on Malawi and Zambia, L Benton (2002), and the small but exquisite study written by Cristina Nogueira da Silva (2005) on the distinctiveness of Portuguese colonial doctrine Century it was transferred to Africa Independently of pragmatic political considerations, it rested largely on H S Maine’s liberal and very romanticised conviction that legal pluralism was to be carefully respected, since traditional native societies were stable, internally coherent, and fragile, and thus highly susceptible to irreversible destruction if the British colonial State interfered directly Portuguese colonial doctrines (I use the expression for commodity, since evidently they varied quite a lot, or perhaps rather, oscillated, throughout both the 19th and 20th Centuries) rested on quite different assumptions and dissimilar ideas In Portuguese colonies – namely, in Angola – Africans could, if they so wished, give up their normative universes and affiliations, as long as they did it for good and went for the legal and political system of the colonial government11 This was seen as the fulfilment of the Portuguese missão civilizadora It was believed (and the colonial Codes reflected that explicitly) that, slowly but surely, Africans would choose themselves to cross the civilizational divide that separated them from the native Portuguese – the progressive elimination of traditional usos e costumes was indeed deemed to be a natural, and somehow mechanical, consequence of European colonial efforts From an empirical point of view, the problematic political and administrative issues which led to such objective convergence only really started being raised after the Berlin Conference of 1884-1885 The international conditioning – for the purposes of recognition of colonization rights – of an effective territorial occupation and control by the would-be colonizer was decisive In Africa (and Africa was indeed the main focus of the Conference), this meant that it became useful and interesting12 to equate with one another matters which 11 Cristina Nogueira da Silva (2005) op cit.: 918-919 12 This “first wave” of studies was mainly carried out, in Africa, by British and French scholars Researchers like Isaac Shapiro and E E Evans-Pritchard were paramount We can probably see in Meyer Fortes and E E Evans-Pritchard collection of articles on “African Political Systems”, published in 1940, but naturally based on research work carried out by various workers in the 30s, the peak of this initial period In a perhaps partly Davidian pattern, Latin French and Portuguese researchers tended in this period to concern themselves mainly with the production of legal Manuals on Colonial Administration, rather than focus on local organization The first big Manuals, highly influential as far as colonial 10 Now follow me a bit further down my line of reasoning, as I plunge back into the core substance of my communication An overview of the four Case-stories I drew on in my last section allows us, so I believe, a sort of answer to the possible outcomes of all of this We would be wise to note that the motives and agendas of social actors, be they State of local ones, are one thing, but another are the bare politico-jural realities Wishful thinking, no matter how well intentioned, never goes very far Whatever actor’s motivations may be, and quite irrespective of the nationalist or ideological ambitions embedded in them, the truth is that, from the standpoint of democratic theory, the articulation of State and local normative systems – and this has long been known, but is all too often forgotten – faces hurdles of various types It is surely worth our while to point out the main fronts, as it were, raised by such ambitious attempts at a linear and unproblematic harmonization I am thinking here of different fronts, as I called them, of something similar to what A Gramsci famously called “trenches”: mainly conceptual lines of battle for an overall programmatic “hegemony” Varieties of incongruence: the limits of political legerdemain I want to get down to the very concrete here First and foremost among these trenches, I would definitely place the question of the very possibility itself of integration, or even a thinner level of articulation, between unelected and often autocratic entities with others, both elected by free suffragists who can depose them if and when (if not how) they should wish to so From this problematic front, others flow: such as, for instance, the “technical” difficulties on the delimitation of the competences of entities which not only not recognize a form limiting fundamental principles can be “harmonised” Albeit, in good truth, what is achieved by such diachronic operations is not really a harmonisation, it is rather a reduction of either “traditional law” to State law, or vice-versa And this inevitably involves twin processes of education and imposition, as theoreticians of nation-building have defended for many years In other words, and to use Gonỗalo Almeida Ribeiros terminology here, violence and persuasion become paired ingredients of State action when, in the process of State-building, pluralism becomes non-banal Or, in my own terms, if our aim is that of building a State, the joining of hard and soft forms of power is inevitable when we are faced with a high intensity type of pluralism 40 of separation of powers similar to the one built into democratic charts, but ones which tend to not even operate more diffuse distinctions among domains like what we call the juridical, the political, the religious, or the familial To all this we can add a further layer: the potential incongruities which derive from delimitations and circumscriptions of “private” and “public” domains that we have long known to be very different among themselves, a gap which cannot but afflict many of the efforts spent in eventual attempts at any apportioning of structural attributes and functional competences between, say, what are called “traditional authorities” and what is seen as the Angolan State At a strictly political level, the risks incurred have long ago been taught to us by our own harsh historical experience37 I shall want to come back to this last point, but for the moment let me frame this in more jural terms, ones tied to the liberal-democratic ideals of Good Governance which the Angolan 2nd Republic purports to defend The assertion that traditional African political and juridical forms and figures have, as a rule, little in common with those essential for a Rechtstaat, certainly involves no generalization: no matter how sympathetic we may want to be, or how loosely we may define our categories, in “traditional” Africa neither the legitimacy of power-holders nor their acts are under the scope of an “Empire of the Law” 37 As Joel Migdal (2001: 128), wrote, alluding to a different context but with obvious pertinence, “in parts of colonial Africa […] the British attempted to extend the scope of the colonial state by incorporating tribal chiefs as paid officials Many chiefs, for their part, gladly accepted the salary and any other perquisites that they could garner but often ignored the directives from their superiors in the state hierarchy The demarcation between the state and other parts of society in such instances was difficult to locate and was in constant flux Chiefs were state officials but sometimes – indeed, many times – simply used their state office and its resources to strengthen their rule as chiefs” Migdal summed up what amounts to some of his considerations as to the implications of this in the next page: “in arena after arena […] social forces have reorganized to deal with the new reality of ambitious states Where those forces have created or found the spaces and methods to sustain, sometimes even augment, their own social and economic power outside the framework of the state’s moral order and its rules, the society comes to be characterized by dispersed domination Here, neither the state nor any other social force has established an overarching hegemony; domination by any one social force takes place within an arena or even across a limited number of arenas but does not encompass the society as a whole Social life is then marked by struggles or standoffs among social forces over questions ranging from personal and collective identity and the saliency of symbols to property rights and the right to use force People’s mattering maps remain remarkably diverse in such a society” No matter how much “accommodation” is carried out, can an overall political community be imagined in such settings? 41 Instead of Constitutions, local chieftains negotiate their political agendas within the frameworks of often very rich, but also comparatively undifferentiated, repertoires of moral precepts, dynamic and often very variable interpretations and reinterpretations of “customs”, proverbs and sayings, or adages Their authority (or rather, power) tends to be as vague and diffuse as it is wide It is usually, nonetheless, immense As a Liberal South-African publicist, T W Bennett38, recently wrote, “the inclusion of traditional rulers in a Constitution dedicated to democracy is a conspicuous anomaly”; and some of the more striking facets of this anomaly are easy to pin-point No matter what our final take on things may be, I would claim that looking at things from such a “classical” Illuminist perspective does bear interesting fruits For operational purposes, allow me to treat separately constitutional and legal questions of congruity I shall start with the first type, constitutional issues As far as “traditional authorities” are concerned, for instance, notice that, as a rule, the exercise of what we can call “legislative functions” is not dependent on periodic popular suffrage; rather, it results form hereditary rules From a fundamental normative perspective, an issue which can (and indeed, must) be raised, pertains to eventual contradictions (that is, radical incongruities) between such hereditary systems and Angolan anti-discriminatory Constitutional dispositions Another similar issue is that raised by our Case-story 2: can a woman, in the cadre of the “traditional” political formats the State recognizes and integrates into its fold, occupy a place of political leadership? She should, again for the sake of the Angolan official non-discriminatory political and juridical logic, yet may she really, according to “tribal” common rules and processes? And will any form of “accommodation” really work here? 38 T W Bennett 1998: 16 This quote was taken from a very interesting (but unfortunately short) study on the constitutionality of the current ongoing process of recognition of “traditional authorities” in Namibia and South Africa For a different reading, see for instance M O Hinz (1995), who defends the possibility of an integration of what he calls “the “traditional” and what he calls the “democratic” systems of legitimation, as long as, he claims, they are placed into a “non-hierarchical” relationship This is rendered possible, the claim is, by carefully defining the limits of what are “public” and what are “private” matters 42 Still at the level of what the State deems to be public executive powers, “traditional authorities” tend to have a fairly extensive and intensive control, quite often legitimized by some sort of a direct connection to the group’s ancestors, in the choice and in the distribution of land or its usage, in the allocation of residential rights in what we could with little distortion call property expropriations, in the mobilization of labour, or in the collection of “taxes” and “tributes” of various sorts All this normally takes place in what we cannot but be envisaged as a rarefied normative space: in effect, very few rules or norms tend to be invoked by “traditional authorities” for what we would call the regulation of their administrative functions Both at the bureaucratic normative level as at the constitutional or legal one, there is a clear deficit of checks and balances I may, of course, insist on a “constitutionally pluralist” solution, attaching to it a “duty of cooperation” and a “duty to inform” about different rules of recognition But will the result be a State? And will it be democratic?39 How far can democratic principles be accommodated before they become empty forms of rhetoric?40 39 “Accommodation”, in my view, works well in contexts like those of the contemporary European Union, or in the wider international realm, where State-building is not in the cards When it is, I think it wishful to see there a solution As N’Gunu Tiny very nicely shows, though, this is the attempt now being carried out in Angola 40 Allow me to frame this in a thicker theoretical register What I am claiming, it could be said, is that “constitutional democracy”, as Isaiah Berlin (1958) famously asserted, is indeed a model for “institutionalizing” conflict It implies conflict and struggle even if these are soften up by being carried out via, for instance, the unbridled exercise of “free expression” As is well known, it is precisely upon this that was rooted what Isaiah Berlin, also notably, called “negative liberty”: that which we all share as a simple result of constitutional (or other) restrictions on State power, and which he contrasted to the much more constructive “positive” one Obviously, however, the fact of recognizing that constitutionalism is a means of conflict institutionalization by no means allows the conclusion that we must have as its inevitable outcome a political community in which a Common Good (or whatever we may deem as it’s collective equivalent) is actually pursued Sometimes things work out this way, sometimes they not (for a wonderful theoretical discussion around these issues, see the recent Zeev Sternhell, 2006: mostly in pp 516-528, focusing mainly on ‘deconstructing’ what he sees as Berlin’s blatantly “reactionary” approach) And it is fairly easy to find a pattern here: radically incompatible exercises of “liberty” rarely create “public spaces” in which “social contracts”, or “compacts”, with any significant substantive content can be effectively worked out Unless, that is, a workable form of mutually accepted “constitutional pluralism” emerges; as has often been argued, the European Union may well be as example of this But then the result is not really a State, but rather a new format for political quasi-community, and one that is surely hardly compatible with what is patent in the various extant blueprints imagined for Angola 43 Very rapidly, let me now look briefly at more properly legal matters Note that I am still holding on to what a termed a “classic” perspective Just one or two examples will suffice The same kind of points I made in relation to constitutional issues, of course, can be raised, again as a thin generalization, in what concerns Angolan “traditional” judicial powers In the jurisdictional boundary determinations as in the plane of proceedings, and of course in what alludes to fines and other punishments, the operation of “traditional authorities” is hardly compatible with what is legally acceptable We can dig further down and also scratch more widely Can we really harmonize “traditional” notions of “property” with State ones? And if so, which ones, of the many evolving ones displayed in Angola? Or is an overall model applicable to all of them? And what about the right of life and death which many of the Angolan local leaders hold over their subjects? What does “accommodation” mean here? Such constitutional and legal issues are, evidently, not the only ones raised, and they may even not be the most serious ones, other than for jurists of strongly formalist convictions Real world political-pragmatic issues accrue to them I shall not get very deep into these, but I not want to miss the opportunity of take up again Joel Migdal’s insights here and pushing his comments a little bit further Allow me to start by stressing the strengthening of rules he wrote about Note that such reinforcement works both ways: while it certainly often gives “chiefs” an often needed supplement of force and legitimacy, it also allows the State to reach areas and peoples it otherwise often could not and to so with a local better level of acceptance – let me call that legitimacy too The fact is, indirect rule, no matter what its normative density, reinforces both sides But it also renders their boundaries more fluid, a point all too often insufficiently looked into with the required attention to detail and its implications The limits and risks of non-selective pluralist accommodation 44 Let me now return to matters of pluralist accommodation, this time from above, as it were, and allow me to continue to so in a diachronic mode Very sketchily only: it is certainly the case that mechanisms of indirect rule indeed allow for the State to reach otherwise unreachable corners of the land and people under its governance, and this is not irrelevant in a country like Angola in which, since 2002, the Government can now touch everyone, everywhere: which in fact means it has spread itself thin, and therefore really reaches no one anywhere but in its immediate physical vicinity or in extreme situations, if only for “logistical” reasons Indirect rule does increase State capabilities, also at the level of local recognition, in the Burkean, or Hartian, sense that it amplifies its legitimacy by enlargement, in a manner of speaking Likewise, mechanisms of indirect rule indeed also offer local chiefs a supplement both of force and of legitimacy, but giving them access to the use of greater clout and a recognition of sorts often does indeed rub off from de facto power But this is again too static and linear a view of things, I would contend Both State and local social actors have what are often fairly clear-cut agendas and constantly act on them, and we would be unwise to discount the mid and long-term implications of that As we saw, Cipriano Kaningi, the very friendly “King” of Sambo and a locally all powerful soma inene, was of late coopted as a full member of the Central Committee of the MPLA, the hegemonic political party in power in Luanda He was by no means the only one to have that chance This is, in fact, an interactive two-way road: from the perspective of the local chiefs or notables, what to the governmental leaders is envisaged as a conduit for the local exercise of power, even if indirectly, from their angle is often quite openly glimpsed as a sort of ladder into the heart of the State apparatus itself.; as a powerful means of deeply penetrating the centre from within And it is used as such, not rarely in a very systematic fashion41 41 History teaches us that, as far as Africa goes, there is nothing really new about this It is true that, in many historical cases, the State imposed its own rules and will But, in a very strong sense, the relationship was built step by step, as a result of the vagaries of the living interactions of actively motivated parties in a local-centre or a local-local relationship For these and other related points, see Martin Chanock (1985), op cit., Mahmood Mamdani (1996), op cit., and L Benton (2002), op cit The classic collection on such issues was, of course (ed.) A Allot (1971).Of course legal pluralism, insofar as it involves state-centric 45 To see instances of this process of pro-active interplay in action, it is sufficient to look at many of the mechanics of African independence, its Third Wave of “democratic transitions”, or the oftentimes hostile takeover of State structures by Islamic notables, marabouts and others, in Senegambia What started as a politically expedient move of co-optation, carried out with a view of increasing the States’ power, many times ends up as the occupation of the State from the inside through the use, in precisely the reverse directions, of the power conduits created It is a use, in short, that often ends up hollowing the “classical” State from within It should, therefore, come as no surprise that so many of the more alert Angolan intellectuals 42 react rather vehemently to the new pragmatic (many would say opportunist) constitutional moves to integrate local leaders into the statebuilding process Clearly, as analysts we must not allow ourselves to be misled by implicit meanings When we hear an expression like “traditional authorities”, what immediately comes to mind tend to be images of local community leaders bathed in one of the forms of power Max Weber wrote about in such brilliant and influential terms: charismatic chieftains, in social groupings in which politics and religion intermingled freely, and where power and kinship networks largely mapped themselves onto each other When we allow such implicit meanings to sneak in surreptitiously, we overlook the fact that “traditional authorities” is not a term coined by Western Weberian social Western-type systems, was by no means simply a mechanism drawn with political intentionality by the powers that be in Africa, whether Portuguese, British, French, German, Italian, or Spanish Rather, it resulted from a “colonial encounter” in which Africans were not always (if ever) passive This historical hindsight is useful still now if we are to understand the Angolan elites post-colonial “re-colonization” of the country’s hinterland Hybridity, then as now, was the norm, “boundaries” unclear and often fuzzy, hierarchical relationships of legal and political subordination and super-ordination open and, normally, negotiated in very concrete “arenas” It is not difficult to chart it The local capacity for proactive agency played on jurisdictional ambiguities, not rarely mobilized the State systems, and if it sometimes insisted on separate and semi-autonomous statuses, in many other cases locals positively and quite forcefully chose to use colonial normativities simply because, in their view, to so was often contextually more convenient For a general overview of issues pertaining to pluralism see Joël Moret-Bailly (2002) 42 And there are quite a few, indeed: Maria da Conceiỗóo Neto (2002 and 2002a) and Fernando Pacheco (2002) are just two examples 46 scientists, but rather one engineered by African nationalist politicians43 The anxiety felt is not new, and is indeed quite understandable in such a large territory, with such demographic dissemination and given the marked group volatility induced by war and by modernization; and given the weak State implanted there In the Angolan case, much of this was surely evident in the mid-20th Century, in colonial times, namely in the bundle of moves engaged in so as to revoke the very famous (or infamous, if you will) Portuguese Estatuto Indigenato, although unfortunately not enough studies have been concerned with these points Here is not really the place to try to fill that gap, but allow me a brief lateral excursion The Estatuto Indigenato, which quite unequivocally consecrated a dualist society in the Portuguese colonies along Mamdanian lines, was revoked in 1961, by the Decreto-Lei 43893, dated 6th of September With its abolition, at least according to the black letter of the law, all inhabitants became equal “citizens”, under the same umbrella, as it were Of course, in practice little changed Perhaps more interesting for our purposes here, Angola was turned into a partial exception, by a further Decree published in the very same day (Decreto-Lei 43896, also of September 6) The text itself of this parallel Decree is interesting: it said that, in Angola, “it is not necessary to give form and expression to certain forms of local institutionalism, which may articulate themselves, 43 The formula is a brilliant piece of political propaganda The “traditional” does not refers to a passée, or atemporal, modality of quaint, or even benevolent, power exercise, but rather to a quite overt attempt at an historical legitimation of a desired present (and future) by means of an oblique allegation that the powers of the persons in question are not contaminated by colonialism, but are, rather, “pristine” Mutatis mutandis, the same could be said for the “authorities” The term functions by evoking echoes that we would be in the presence of a non-contested, and soft, format of power But it is really a clever double entendre: instead, its tonic is placed on indicating entities who act on behalf of State power Taken as a whole, the expression “traditional authorities” is anything but technical, in the sense of neutral It looks forward with an instrumental intent, not back with a messianic nostalgia We hear “charismatic leadership”; but the spelling is really rather that of “aseptic agent” It aims at an obedient acceptance of transformation, and it certainly is not meant to awaken combative reactions to change The phrase itself is indeed part and parcel of a mechanism of social control A mechanism that can easily be turned back on itself, as has often been the case in Africa What Angolan government leaders are doing, when using the expression, is not “recognition” or “accommodation” They are, instead, obliquely asserting the hierarchical ascendance of “modern” State central over “pre-State” forms of “local power”, to use their own constitutional terminology 47 advantageously, in the general scheme of administration, with a manifest respect for tradition and the habits of the populations”44 I think the tacit lesson we can extract from this is very edifying In practical and very pragmatic terms, and in a characteristic “para-Burkean legalese” marked by a curious negative indirection couched in positive overtones, the discrete 1961 Decree thus stipulated that local communities should manage their own interests according to traditional institutional mechanisms and procedures With the obvious intent of guaranteeing an effective measure of State control, rather than any sort of devolution, and perhaps in recognition of the high intensity of its pluralism, both juridical and sociological, and of the dissemination of the entities which composed it, Angola was taken as a special case where some dualism actually survived Interestingly – and as noted before – in late colonial Portuguese times this was coupled with the evolutionist proviso that “indígenas” could in every case opt for Portuguese State law, if they so preferred, but that once they did, the process became irreversible, as they were then reclassified as “assimilados” and thus “civilized” The main suggestion here seems to be that, albeit in a new guise, the process has of late been gaining a new, now postcolonial, lease on life in Angola The bifurcation is still there The revised administrative provisions, as Aslak Orre very clearly shows, distinguish the “urban” form “rural” areas of the hinterland, and the ones to be turned into “autarquias” from the “tradicional” ones, which will (when and if decentralisation actually takes place) be “devolved” Again, it is a dualism hidden by the obliquity and indirection of formal “recognition”, now under the “traditional” and “fraternal” clothing so characteristic of contemporary African models of “real national pluralism” Resetting things in perspective is always useful Let me be very clear A public simulacrum of “Africanization” has been taking place in Angola for a few years The death of Jonas Savimbi and the 44 Here is the quoted passage of the Decreto-Lei in the original Portuguese: “não era necessário dar forma e expressão a certas formas de institucionalismo local, que podem articular-se, com vantagem, no esquema geral da administraỗóo com respeito manifesto pela tradiỗóo e pelos hỏbitos das populaỗừes 48 end of the long civil war which followed the disappearance of military UNITA definitely accelerated the process During that time it has become entwined with Angolan State leaders’ projects of power and it has, at least superficially, acted fairly deeply on the workings of the Angolan State It somehow affected the scope of State powers, shook national policy making, and mostly recast the political elites reach into society “Africanization” if it did not redefine them, it at the very least deeply reconfigured, “Angolan” Statesociety relations, and in so doing it actually somehow changed the balance of power between the two It became the ideology of choice for State leaders in a weak postcolonial State that otherwise lacked any strong ideological tools and enjoyed only a very precarious hegemony over society In this limited sense, “Africanization” is thus indeed becoming a novel phase in the life span of the postcolonial Angolan State But it is only on the surface (or in its neighbourhood) that it is doing so In the end, the Angolan Africanization routine is not so much a fully-fledged reinvention of the State, but a tool fashioned to allow it to rise above the very real limitations it faces As such, it should not be overestimated The cultural directives of the ongoing gestures of “Africanization” are real, but their impact on Angolan State institutions, law, and policy making not really amount to creating the State ex novo Quite to the contrary, the Angolan State during this “Africanization” period is very much the same as before, only now it is masquerading behind a democratic and “authentically African” veneer As was the case in 1961, barring an always possible radical rupture (internal, external, or composite) it is difficult to see how the future will change that charade Local notables will probably simply be co-opted into the system which reinvented them in the first place By 49 and large, the postcolonial State in Angola will most certainly emerge from its contemporary bout of “Africanization” with its former institutional design, its habitual trappings of power, and its venerable view of the role of the State and its relation with society very much intact To be sure, in the long run, in spite of globalization and the centripetal push it signifies, it does seem implausible that some Africanizing pressures will not be felt in Angola But that will take place through a quite different process What we are at present witnessing, albeit in altered circumstances, is a replay, in fast-forward as it were, of late colonial strategies of response to concrete woes Once more, the risk – and it is certainly a serious one – is of triggering the simultaneous and surely unintended creation of both “citizens” and “subjects” For, again, the tacit finality is the progressive gestation of a uniform and homogeneously shared rule of recognition in a unified pan-“Angolan” public space Two tiers at two speeds: Statebuilding oblige Bibliography: (ed.) 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George Stocking Jr (1991), Colonial Situations Essays on the contextualization of ethnographic knowledge, University of Wisconsin, Madison 53 Brian Z Tamanaha (1993), “The folly of the “social scientific” concept of legal pluralism”, Journal of Law and Society 20 (2):192-217 Trutz von Trotha (1996), “From administrative to civil chieftaincy Some problems and prospects of African chieftaincy”, Journal of Legal Pluralism (37-38): 79-107 James Tully (2000), “The Struggles of Indigenous Peoples for and of Freedom”, in (ed.) Paul Patton, Duncan Ivison and Douglas Saunders, Political Theory and the Rights of Indigenous Peoples: 36-59, Cambridge University Press, Cambridge (2002), “The Unfreedom of Moderns in comparison to their ideas of Constitutionalism and Democracy”, Modern Law Review 65 (2): 204-228 Jacques Vanderlinden (1996), Anthropologie Juridique, Dalloz, Paris 54 ... my Armando Marques Guedes (200 5), mainly its part beyond that of local camps Urbanization is rampant in Angola, and the war led to massive and rapid waves of rural exodus A sizeable population... chieftaincy”, in which, in many places, chiefs are still in the process of being incorporated into the State apparatus For van Dijk and van Nieuwaal, there is indeed ? ?a new social and economic landscape... in Angola (economic and military) and the urban mainstream are huge, and they are increasing Moreover, such an panorama, particularly with the presence of a strong military, is hardly favourable
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