TSHEPO MADLINGOZI

(Dr. Madlingozi has submitted this review to herri by way of a response to Keith Matthee’s review of The Land is Ours which was published in herri 2)

Tembeka Ngcukaitobi’s The Land is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism is a timely and valuable contribution to current debates about the origins, cultural bases and ideological influences of the  Constitution of the Republic of South Africa, 1996, as well as to discussions about the role of law in the ‘radical transformation’ or ‘decolonisation’ of society. This multi-genre and interdisciplinary book can also be read as an intervention into perennial contestations about ‘the soul’ of the African National Congress (ANC). Ngcukaitobi tells the story of South Africa’s first black lawyers with great care and detail to advance his main thesis. Ngcukaitobi’s two-fold thesis is that legal tactics and strategies were at the heart of the struggle against colonialism and that the Constitution is a product of that struggle. Ngcukaitobi reaches into the archives in his attempt to achieve two implicit goals. He employs history to first mount a passionate defense of the Constitution and constitutionalism; and, second, to remind the ruling party that constitutionalism was and ought to be at the core of the state. Ngcukaitobi narrates with the intention of showing that these internationally trained lawyers combined indigenous notions of justice, classroom instructions on constitutionalism and social and political exchanges on Pan-Africanism to help draft a series of constitutional and human-rights documents that were anti-colonial in nature.

It is not novel to posit that the normative principles and/or the spirit of these ANC and ANC co-sponsored documents (The African Bill of Rights, 1923; The African Claims, 1943; and the Freedom Charter, 1955) found their way into and influenced the Constitution. The most contentious aspects of The Land is Ours are Ngcukaitobi’s suggestions, first, that these ANC-aligned elites pursued an anti-colonial agenda; second, that colonial laws were sometimes effective weapons against white supremacy and colonisation; and third, that the Constitution is a decolonising instrument because it is a product of an anti-colonial struggle. Ngcukaitobi’s project, then, is not so much a reassessment of the role of lawyers and legal strategies in the struggle against colonialism. Rather, this project is a revisionist history of the impacts of Western modernity and colonisation, the early ANC and the genesis of ‘transformative constitutionalism’. This review adopts a decolonial approach to question two central motifs of this book that the first group of black lawyers were engaged in an anti-colonial project; and (2) that the roots of the current constitutionalism are autochthonous.

Flowing from the aforementioned two-fold thesis, Ngcukaitobi submits that the contemporary struggle to overcome the intractable legacies of colonialism and apartheid and, indeed, ‘The unfinished struggle for land can only take place through a framework of law.’^{[1]T.Ngcukaitobi The Land is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (2018) 1}  

Ngcukaitobi grounds his defence of the Constitution and constitutionalism on three interrelated arguments. First, he rejects charges that the Constitution is an expression of the legal and epistemological paradigm of historical oppressors. As the sub-title of the book intimates, the animating idea behind Ngcukaitobi’s project is the notion that the Constitution and the constitutional dispensation it inaugurates are not Eurocentric phenomena. Ngcukaitobi suggests that the constitution is home grown and autochthonous, both in the sense that the Constitution finds its true origins in the constitutional visions of the ANC and ANC-aligned lawyers and that the Bill of Rights is a culmination and an expression of black struggle. Second, flowing from this premise Ngcukaitobi implies that the Constitution is an anti-colonial instrument. In this regard, Ngcukaitobi seeks to demonstrate that the roots of the ‘final’ Constitution are revolutionary because Pan-Africanist and anti-colonial lawyers planted and shaped them. Therefore third, Ngcukaitobi aligns himself with scholars, non-governmental and state officials who propagate the idea that the Constitution is unimpeachable – the ‘best  in the world’ or ‘a model for the world’.^{[2] Ibid.}

This book follows the political and intellectual ideas, as well as the legal tactics and strategies of six black lawyers to demonstrate that these activist lawyers stretched the limits of the colonial legal system to promote and uphold principles of legality, fair administrative action and equality. Ngcukaitobi’s contention that black lawyers were the midwives of constitutionalism is directed at two camps.

The first of which Ngcukaitobi speaks to is that camp of white legal historians who erase the role played by the first cohort of black lawyers and the early ANC when telling the history of South Africa’s constitutionalism. Thus Ngcukaitobi writes that the book aims ‘to restore the historical record’ by examining the ‘forgotten origins of constitutionalism’.^{[3]Ibid 38, 273.} By showing how Henry Sylvester Williams, Alfred Mangena, Richard Msimang, Pixley ka Isaka Seme, Ngcubu Poswayo and George Montsioa deployed a mixture of politics and law to launch test cases, Ngcukaitobi also seeks to disrupt the dominant narrative about the evolution of strategic litigation in South Africa.

Second, Ngcukaitobi’s project is a retort aimed at black radical and African nationalist charges that post-1994 constitutionalism is overwhelmingly aimed at guaranteeing the affective, cultural and material belongingness of historical oppressors, and that the Constitution is a ‘white thing’ in the sense of being Eurocentric and an alien deity. If the originators of South Africa’s constitutionalism are anti-colonialists, and if the Constitution emerged out of black radical thought, then these charges are not only misguided and fallacious, they are counter-revolutionary. This is to say that, at a more profound level, The Land is Ours could be apprehended as a counter-argument against calls for the decolonisation of the South African legal system, the Constitution, and indeed the extant polity.

1. A critical interlocutor and exemplar for decolonisation-theory scholars.

Decolonisation approaches to constitutionalism and the Constitution gained momentum and mainstream visibility in South Africa after the student protests of 2015 and 2016.

Decolonisation approaches endeavour to go beyond both liberal analyses and traditional schools of critical thought. Liberal critiques of the Constitution and constitutionalism tend to adopt either institutional or immanent perspectives. Institutional analyses fault courts for adopting legalistic and formalistic adjudicative practices that perpetuate a conservative legal culture. This set of liberal analyses asserts that the full realisation of the promises of ‘transformative constitutionalism’ is impeded by a conservative legal culture. Another set of liberal critics puts a spotlight on lackadaisical state conduct, poor implementation of court decisions and the governing elite’s supposed betrayal of otherwise flawless constitutional ideals. Immanent critiques suggest that some of the wording of the Constitution hampers ‘transformative interpretation’ such as a core-content reading or an immediate application interpretation of certain socio-economic-rights clauses. These liberal critics, however, resist calls for wide-scale amendments of the Constitution. Rather, these scholars hold that the Constitution is a ‘living  document’ and, as such, judicial and social actors should and will shape the Constitution to enable it to respond to pressing social needs. Immanent and institutional critics are united in their deification of the Constitution.  

Critical scholars neither deify the Constitution nor subscribe to the myth of judicial neutrality or the fallacy of the separation of law and politics –  a fallacy well explored in The Land is Ours. These critics point out that the Constitution has not dismantled power relations that cause and sustain racism, patriarchy, homophobia and economic subjugation. However, most critical analysts do not argue for a post-conquest constitution, or what could loosely be called constitutional abolishment.^{[4]On the fundamental differences between constitution/constitutional amendment and the quest for a  post-conquest constitution, see in general T Madlingozi   ‘The proposed amendment to the South African Constitution: finishing the unfinished business of decolonisation?’ (2018).} Wittingly or unwittingly, most scholars of traditional schools of critical thought seek to rescue the post-1994 constitutional project by demanding more gendered, queered, ‘pro-poor’ and raced readings and applications of the Constitution. The argument here is that such readings and applications would lead to the achievement of social justice for historically marginalised groups.^{[5]On how the discourse and praxis of social justice in an un-decolonised context perpetuate colonisation, see T  Madlingozi  ‘Social  justice in a  time of neo-apartheid constitutionalism: critiquing the anti-black economy of recognition, incorporation and distribution’ (2017) 28 Stellenbosch  Law Review 123.} Therefore, rather than demanding radical constitutional transformation, most critical scholars call for better and greater ‘transformative constitutionalism’.

The decolonisation approach to the Constitution and constitutionalism is a disparate movement united by two broad pillars. The first is the contention that 1994 did not herald the era of decolonisation. The argument here is that white domination transmuted into white hegemony while the majority of black people continue to be pariahs of South Africa. In contrast to liberal and mainstream critical scholars, decolonisation scholars do not regard truncated democracy, structural segregation, institutionalised discrimination as well as the various manifestations of social injustice as crises threatening the post-colonial order. Rather, decolonisation scholars apprehend these crises as symptoms of a dispensation that some regard as on-going conquest while others designate it as neo-colonialism or neo-apartheid. The second fundamental pillar of the decolonisation movement is the thesis that on-going conquest or neo-colonialism is constituted by, and constitutes, post-1994 constitutionalism. Flowing from these two pivotal pillars, decolonisation scholars call for a post-conquest constitution. The argument here is that only a post-conquest constitution will deal decisively with what, from a constitutional perspective, I regard as the three main legacies of settler colonialism and colonisation, namely: (1) the colonial state form and, conversely, the eternal subjugation of indigenous sovereignties; (2) the entrenchment of a world of apartness and the deliberate failure to resolve the National Question; and (3) the continuing subordination of African lifeworlds and their epistemologies and jurisprudences.^{[6]On the essentialia or the three pillars of a post-conquest constitution, see T Madlingozi   (2016)  ‘Settler  colonialism and  post-conquest constitutionness:  the  decolonising constitution vision of African nationalists of Azania/South Africa’.}

My contribution to the decolonisation turn to constitutional history has been to adopt a critical historical analysis to show that ongoing conquest or neo-apartheid is an outcome of a colonist-preservation strategy known as ‘evolutionary constitution’. In the context where conquest and settler invasion did not lead to the extermination of ‘natives’, the ultimate telos of this strategy is to transmute settler domination into settler hegemony and in that way secure the Gramscian consent of historically conquered people.

An evolutionary scheme of re-constituting the settler-created polity lays a framework for the gradual integration (at least in theory) of some of the historically conquered peoples into the extant polity. It is this integration, and thus transformation, that legitimises and masks conquest and colonisation.

The first task in putting the settler minority’s long-term strategy into motion is the creation of an elite stratum of conquered people.

The colonised elites imbibe the civilising ideology and its teleological notions of progress, improvement, respectability and eventual assimilation into ‘civilised society’.

Colonial states’ inevitable betrayal of these promises radicalises these elites and prompts them to demand accelerated and greater evolutionary (not revolutionary) (re)constitution. An evolutionary scheme of constitutional rearrangement maintains the main edifice of the settler-created polity such that the majority of the historically colonised remain pariahs of the “transformed” polity.^{[7]See T.Madlingozi ‘Mayibuye  iAfrika? Disjunctive inclusions and black strivings for constitution and belonging in “South Africa”’ (2018)  (unpublished doctoral dissertation) Birkbeck, University of London.} In sum, evolutionary constitutionalists use symbols, procedures and discourses of the system that created them to demand the transformation (not decolonisation) of the settler-created system. An important tool that discontented ‘native elites’ appropriate is constitutionalism.

The decolonisation scholarship is an inchoate one that is still working through gaps, contradictions and lack of methodological exactitude. Three main issues are relevant for the purposes of this review. First, some decolonisation-theory scholars tend to over-rely on theories and concepts that emerged in contexts vastly different from South Africa. Second, the failure by some decolonisation scholars to undertake critical-historical research leads to many ahistorical analyses and conclusions. For example, some scholars take analysis from other parts of the historically colonised world and end up making inaccurate analyses and conclusions about the pivotal relationships between, and the roles played by, colonists, missionaries and anthropologists in the colonisation of ‘South Africa’. Third, a sizeable percentage of decolonisation scholars focus on compromises made by ANC leaders during the negotiations leading to the ‘new  South Africa’. In this regard, some of these critics over-emphasise structural factors, thus denying the agency of ANC actors, or they exaggerate the agency of these actors to propagate the ‘sell-out’ narrative.

Ngcukaitobi undertakes an impressive amount of archival research to trace and unpack the genealogy of conquest and colonisation, the ebbs and flows of resistance strategies, the impact of black transnational thought on nascent African nationalism, the role of law and the judiciary in the consolidation of conquest, and key moments leading up to the current dispensation. Due to strictures of space, this review will only focus on two motifs that run throughout the text. The first motif that threads Ngcukaitobi’s thesis is that his five protagonists (I exclude the pioneering Trinidad-born Williams) appropriated Western religion, Eurocentric education and colonial laws to forge an anti-colonial and decolonising political and constitutional vision. The second pillar is the contention that South Africa’s constitutionalism and the idea of the Bill of Rights ‘germinate from South African soil’.^{[8]Ngcukaitobi (note 1 above) 1–2.}

2. The ambivalence of the New Africans: the land is (some of) ours (some-time)

The first motif (the narrative of revolutionary appropriation and upending) is the lifeblood of ANC historiography and myth-making. The story here is that  late nineteenth century and early twentieth-century ‘Westernised’ elites refused their station as mimic persons who were to be a buffer between colonists and the horde  of ‘savages’. Rather, these converts inverted the colonialist project with the view of imploding the very thing that created them. Therefore, instead of becoming meek lackeys of colonialism, they ‘disrupted the consensus of the colonial state’^{[9]Ibid 27.} The claim here is that education became a vehicle of resistance in the context where military resistance was unavailable. Ngcukaitobi begins this narrative of Western education and the law of colonisers as weapons of resistance with the Eighth War of Dispossession (1850–1853). This war has the distinction of being the longest of the nine wars of dispossession and the longest sustained military resistance against colonialism in Africa. The inspiration behind the amaXhosa uprising was Mlanjeni, a ‘prophet’ who vowed to empower amaXhosa to repel European encroachment and subjugation.

Mlanjeni’s war medicines and charms failed to halt a devastating defeat. It is appropriate to begin the narrative here because the defeat of amaXhosa and allied groups in the ‘War of Mlanjeni’ further consolidated embryonic beliefs in European invincibility. Before this defeat, most indigenous people regarded European incursion to be formidable but not indomitable – they had faith that their God, ancestors and indigenous tactics would help them resist conquest and total colonisation. The turning  point in the irruption of Western modernity, and perhaps the ‘birth of constitutionalism’, was the well-known cataclysmic events that occurred between 1856 and 1857. During this period, various amaXhosa groups ceased cultivating their crops, destroyed their corn and killed an estimated 400,000 of their own cattle. This ‘cattle-killing mania’ is often blamed on Nongqawuse, a young seer who claimed to have received a message from the ancestors that amaXhosa must purify their land. The purification of the land was to prepare for the day of the return of ancestors. The prophecy was that ancestors will bring with them new cattle, and on that day, a whirlwind would come and sweep settler invaders back to the sea. This prophecy did not materialise, and in just over eighteen months, approximately 40,000 amaXhosa died from starvation, famished men and women handed themselves to the Cape Colony as labourers, and their remaining lands were given to white settlers and African clients. As Ngcukaitobi shows, this event was a pivotal moment in the acceleration of Christian proselytisation and the proletarianisation of frontier people.

I submit that the most important ramification of this tragic devastation was that it strengthened the notion that indigenous weapons and ancestors were powerless to resist material, social and spiritual colonisation. Even more importantly, this ‘national suicide’ swayed the balance in favour of African leaders and other elites who, because of intra-Xhosa rivalry and strategic reasons, had chosen the route of aligning themselves with colonisers and had encouraged their sons and subjects to convert to Christianity and receive Western education.^{[10]Early converts were often members of scorned minorities who considered themselves oppressed by their own kingdoms and clans. These pariahs sought refuge in mission stations and converted to Christianity. For our purposes, it is important to note that some indigenous people derisively referred to these converts as amambuka (‘traitors’) or amakhafula (‘those spat out’).} Chief Ngqika and ‘prophet’ Ntsikana pioneered this response in the early nineteenth century. Chief Ndlambe and ‘prophet’ Makana (also known as Makhanda) represented a more militant response. These opponents of Ngqika and Ntsikana rejected colonisation, preached a form of black liberation theology and elaborated what could be regarded as black or African nationalism. Makana led amaXhosa and allied groups during the Fifth Frontier War (1818–1819). Makana’s medicine did not turn the ‘white man’s bullets’ into water, and colonisers imprisoned him on Robben Island. The point here is that we can detect two African responses to conquest and colonisation from the early nineteenth century: collaboration and submission to promises of trustee-ship and assimilation versus appropriating some tools of Western modernity while still fighting for independence and sovereignty.

It is perhaps more important to start the narrative in the early nineteenth century, because this antinomy of African responses helps us trace the genealogies of contemporary responses (liberal, critical and decolonisation) to post-1994 constitutionalism. More immediately, this historical antimony speaks directly to the first leg upon which Ngcukaitobi’s thesis rests. As we have seen, one of his two pivotal claims is that African elites appropriated the tools of empire to forge an anti-colonial discourse and praxis. Ngcukaitobi writes that his protagonists ‘resorted to law because a military option was not available to them’^{[11]Ngcukaitobi (note 1 above) 5 (original emphasis retained).} The subtext here is that these elites would have pursued an anti-colonial military struggle had it been available to them. However, the fact of the matter is that these converts were not interested in a military struggle and/or any other form of struggle that could result in the dissolution of the white system. The lineage of the group of African elites at the centre of The Land is Ours is the lineage of indigenous people who ‘chose’ the strategy of conversion and integration into the settler-created system. In this regard, Leon de Kock notes that even though Ntsikana had a small following during his lifetime, he planted a seed that produced ‘New African’ figures: ‘Christians trained by missionaries and fully “Westernised”’.^{[12] L  de Kock  ‘Sitting  for the civilizational test: the making(s) of a civil imaginary in colonial South Africa’  in L  de Kock,  L Bethlehem & S Laden (eds) South Africa in the Global Imaginary (1996) 117, 57.}

The New African Movement found philosophical basis in the writings of Tiyo Soga (1829–1871). Soga’s father was Ntsikana’s disciple, and Ntsikana took young Soga into a mission station and subsequently sent him to be educated at Lovedale Missionary Institution, the citadel of missionary education. Soga later studied in Scotland and returned to the Eastern Cape as the first black missionary in the territory that later became South Africa. Soga, the most educated Xhosa of his time, returned in 1857, the year of the ‘cattle-killing mania’. Soga’s education and vocation put him at a strategic position to point the way for his people. Soga proposed that Africans will only survive in this ‘new world’ if they embraced Western civilisation and Christianity. Soga’s story is germane to this review because his ambivalence towards Western modernity and the colonial state laid down a template for Ngcukaitobi’s protagonists.

Ngcukaitobi notes that ‘Westernised’ elites had an ambivalent relationship with the colonial state and Western modernity.^{[13]Ngcukaitobi (note 1 above) 34.} The most felicitous line in The Land is Ours is arguably the following:

‘Perhaps this is the lesson of this book: the lesson of ambiguity.’ (Ibid.7))

This intriguing line closes off the introductory chapter. Ngcukaitobi writes this line almost in ellipsis; without further commentary. It feels as if the author added this sentence ex post facto. It seems what Ngcukaitobi means by this is that these lawyers appropriated and slyly deployed the language of colonialism – ‘the language of rights, freedoms and equality’ – to subvert colonialism. Ngcukaitobi should have done much more with this idea if, indeed, it is the most important lesson of the book. Celebration and affirmation of ambivalence and ambiguity form the bedrock of post-modernism-inflected postcolonial (contra-decolonial) theory scholarship most notably associated with Homi Bhabha.

3. Radical rhetoric, assimilationist desires and elite nationalism.

Crucially, Ngcukaitobi concludes that these converts were able to cultivate an anti-colonial consciousness because, ‘They retained a certain distance from their colonisers even as they adopted elements of their culture.’ (Ibid.272)) Ngcukaitobi’s contention here is that this posture of voluntary and determined estrangement is what enabled these elites to ‘stand up to the system’. As mentioned earlier, this argument is central to ANC historiography. Propagators of what we could call a theory of insurgent hybridity often put forward two pieces of evidence to substantiate this line of argument: (1) statements and pronouncements made by colonised elites showing support of certain aspects of indigenous culture, and (2) the alliance between some of these intellectuals and certain kings and chiefs.

It is true that some ‘New African’ figures made statements that could be read as evidence of the fact that they remained loyal to or respectful of African ways of being in the world. This is part of the reason why Ngcukaitobi maintains that these educated elites were never de-cultured.^[14]Ibid. Rather, they fused elements of the indigenous world and the colonisers’ world to become, ‘African and Christian’.^[15]Ibid. Therefore, contrary to the wishes and intentions of ‘civilisers’, educated elites did not become mimic persons. Their resolute distance-taking enabled them to become a menace to missionaries and colonists. This claim is, however, highly debatable. In the first place, the separation between the elite stratum of conquered people and colonisers was a result of the simple fact that assimilation and co-existence are impossible in the colonial context. This is the big lie at the heart of missionary and Enlightenment promises: conversion and becoming ‘civilised’ never results in integration into the polity of ‘civilised people’. In other words, distance from colonisers was mainly the outcome of the fact that Western modernity simultaneously summons and rejects the colonised subject. More to the point, Ngcukaitobi is unable to see that it is this ambivalence at the heart of colonialist praxis that induces the ambivalence of converts towards the colonial system. In other words, colonised elites do not set out to adopt a posture of radical ambivalence, let alone distance-taking. It is the ambivalence of the project that creates them that leads to psycho-social destabilisation, feelings of rejection and abandonment and the subsequent posture of enfeebling ambivalence on the part of colonised elites.

Rather than achieving the next best prize of being hybrid persons who belong to both worlds, these elites become liminal figures trapped in a no-man’s land. It is this liminal positionality that caused some ‘traditionalists’ to distrust converts and to derogatorily refer to them as amalulwane (bats) – two-sided creatures who claimed to be loyal to ancestors and ‘African ways’ when they were among non-converts but professed total loyalty to the British Empire and to Christianity when they were among colonists.^{[16]S Masondo ‘Indigenous conceptions of conversion among African Christians in South Africa’  (2015) 28 Journal for the Study of Religion 87, 95.}

It would have been preferable for Ngcukaitobi to further theorise his claim that these elites were ‘African and Christian’. It seems what he means by this proposition is that these educated elites remained loyal to the ‘old world’ and in solidarity with ‘uneducated’ Africans, even as they became ‘Westernised’. To be sure, many (certainly not all) of these New Africans sometimes made pro-African pronouncements. However, this did not mean that these elites became anti-colonialists who aspired to see the fall of imperialism and colonialism and the concomitant restoration of the material, spiritual and social worlds of conquered peoples. Most of the colonised elites wished to be granted all rights due to British subjects. In addition to this integrationist posture, most of these Western-educated elites believed that ‘uneducated’ people suffered from a deficiency of cultural, moral and political maturity. At best, educated elites’ solidarity and responsibility towards the rest of Africans extended to the conviction that as ‘civilised  natives’ they would eventually bring enlightenment to their fellow ‘backward’ black people.^{[17]One of the interesting aspects of The Land is Ours is the transmission lines that Ngcukaitobi draws between leaders of the amakholwa, such as John Dube and Seme, and black leaders in the USA , such as Booker T Washington and WEB du Bois. However, it is often forgotten that although Washington and Du Bois were bitter political rivals, they both looked down upon ‘unuplifted’ black people and, crucially, that both Washington and Du Bois had assimilationist desires in the early twentieth century. Du Bois carried this influence to the Pan-African congresses he co-organised. Thus the Second Manifesto of the Pan African  Congress moved from the premise that black elites needed to uplift ‘backward and suppressed groups’. Seme, Du Bois and Alain Locke’s elitist Pan- Africanism should be contrasted with Marcus Garvey’s populist and mass-based Pan-Africanism.} As Seme often suggested, ‘civilised’ elites hoped that they could uplift ‘raw natives’ using European standards to enable the latter to eventually evolve into a standard befitting of responsible citizenship of a ‘civilised society’.^{[18]Ngcukaitobi (note 1 above) 1.} This is the most pertinent point related to evolutionary constitution (contra revolutionary reconstitution) and the current dispensation where the majority of Africans still suffer from material and affective non-belongingness to the ‘new South Africa’.  

In this regard, the amaRespectables (men and women who were enamoured with Victorian notions of respectability, progress and upliftment) were following in Soga’s footsteps. Soga is sometimes thought of as the father of African nationalism and Black Consciousness in South Africa. As already mentioned, Soga returned to the Eastern Cape as the first African missionary.

Even before he was sent to study in Scotland, Soga had always been on the side of colonists when conflict broke out between them and the indigenous peoples. However, starting from the 1860s, Soga began making explicitly race-conscious statements. For instance in 1865, Soga responded to a social Darwinist’s newspaper letter by articulating what is clearly a Black Consciousness and Pan-African position. Soga argued that the amaXhosa are part of a distinctive and robust African race, he recounted African civilisational achievements, and he expressed faith in the future renascence of African nations. However, this did not mean that Soga had developed an anti-colonial consciousness. As one biographer of Soga has shown,^{[19]D Williams  The Journal and Selected Writings of the Reverend  Tiyo Soga (1983) 2.} Soga remained loyal to the British Empire and continued to espouse the benefits of conquest, even as he gestured towards Black Consciousness and African nationalism. Furthermore, writing in 1864, Soga reflected on the successes he achieved in the aftermath of the ‘cattle-killing mania’ in the following terms: ‘The people who sat in darkness saw great light; and to them which sat in the region and shadow of death, light is sprung up!^{[20]Cited in G Duncan ‘Tiyo Soga (1829–1871) at the intersection of “universes in collision”’(2018) 74 HTS Theological Studies 1, 8 (original emphasis retained).}’ The crucial point here is that similar to today’s neo-colonial elites, colonised elites could articulate African nationalist, and even nativist  statements, while (1) still wishing to be part of the settler-created system, (2) looking down upon ‘raw natives’, and (3) arguing that ‘raw natives’ are not ready to exercise all rights due to ‘civilised men’.

To be sure, this was the case with Seme. Similar to other biographers of Seme, Ngcukaitobi looks to Seme’s enduring 1906 ‘Regeneration of Africa’ speech to make sense of his radicalism and what Ngcukaitobi regards as his ‘anti-colonial consciousness’.^{[21]Ngcukaitobi (note 1 above) 158.} However, Seme’s award-winning speech reprised Soga’s salvationist and elite-nationalism sentiments. Indeed, Seme concluded his decidedly Pan-African and undoubtedly radical speech with a conviction that internationally trained Africans would return to Africa to ‘drive darkness from the land’. Ngcukaitobi is, therefore, correct to assert that these ‘Westernised  elites’ saw themselves as the Du Boisian Talented Tenth.^{[22]Ibid 37.} In Ngcukaitobi’s telling, the Talented Tenth saw it as their duty to use their intellectual abilities and professions to achieve social and political emancipation for both themselves and for ‘uneducated’ elites.^{[23] Ibid 37, 272.} This optimistic view is, however, contradicted by these elites’ unequivocally elitist and self-serving political agenda. These elites’ radicalism was not for the liberation of everyone. Theirs was a struggle for the extension of political and civil rights to ‘civilised men’.

African elites who came of age after the final War of Dispossession of 1879 followed Soga’s example of making radical statements but not wishing to elaborate an anti-colonial vision in the sense of the restoration of subjugated sovereignties, return of land and valorisation of indigenous cultures. Following Soga, they also adopted colonial discourse to represent themselves in Western modernity and to claim rights due to them as ‘civilised people’. These elites took advantage of the assimilationist promises of colonial governments to apply to be exempted from being subjected to ‘customary law’. ‘Exempted natives’ wished to belong to colonial civil society, to be governed by the British legal order and to acquire rights flowing from that legal system. However, successive colonial governments frustrated this longing.

Towards the late nineteenth century, these property owners and middle-class professionals formed various vigilance and political associations to defend their ‘national rights’. These vigilance associations are the progenitors of constitutionalism only in the sense that they were formed to guard against the erosion of the rights African elites had under the limited franchise system and the rights to purchase land that they had under the quite dissimilar dispensations prevailing in the Natal and Cape colonies. Therefore, defence of ‘national rights’ here meant the defence of rights that they believed were due to them in colonial societies: right to purchase land, freehold land tenure, right to vote and other civil rights. The unyielding demand from ‘Westernised’ elites was for ‘rights equal to those of all civilised men’. Being a product of the ‘civilising mission’ and Cape liberalism, these colonised elites’ constitutionalism did not extend to universal suffrage and equality to all. Thus, in their testimonies to various native affairs commissions, these elites regularly insisted that a distinction  be drawn between themselves (‘civilised men’) and the rest of the native masses (‘raw natives’). These badumedi/amakholwa (‘believers’ in the Word of God and in the potency of the written word) believed that their identity and their recognition as such should result in bestowal of citizenship rights as British subjects. At the very least, the expectation and the main demand of amaRespectables were that they ought to be treated differently vis-‘a-vis the rest of the (‘uncivilised’) African masses. However, the ‘discovery’ of minerals towards the end of the nineteenth century and concomitant demands for cheap African labour led to more restrictions on the rights of African farmers, peasants and property owners. The ability of chiefs and kings to buy land for communal settlement was also threatened by this latest round of land dispossession. This partly explains the alliance that formed between New Africans and chiefs and kings at the turn of the century. This explains why monarchs were invited to the inaugural meeting of the first truly national political movement of Africans in 1912.

Seme was the ‘moving spirit’ behind the formation of the South African Native National Congress (SANNC).^{[24]B Ngqulunga The Man Who Founded the ANC: A Biography of Pixley ka Isaka Seme (2017).} Seme moved for the formation of a national movement after previous organisations, and the deputation tactic failed to halt the establishment of the Union of South Africa as a ‘white man’s country’. The unification of South Africa posed further threat to the rights of African landowners, African middle-class professionals and ‘traditional’ leaders. The SANNC, which later became the ANC, was formed in 1912. Ngcukaitobi seems not to be sure what to make of the early ANC. On the one hand, he concedes that Seme’s conception of equality was restricted to a ‘civilised few’.^{[25]Ngcukaitobi (note 1 above) 190.} On the other hand, he reads Seme’s letter of motivation for the establishment of a national movement for Africans as a humanist declaration rooted in non-discrimination and inclusiveness.^{[26]Ngcukaitobi (note 1 above) 175.} Moreover, Ngcukaitobi argues that the organising principle of the SANNC was anti-colonial.^{[27]Ngcukaitobi (note 1 above) 155} However, can it really be said that a political organisation is anti-colonial and humanistic, and a genuine propagator of constitutionalism, when it reserves equality only for a ‘civilised few’; when it pledges loyalty to the Empire; and when its clarion call was not so much ‘the land is ours’ than a demand for the right to live anywhere in the country, to purchase land or to acquire ‘sufficient land’?

As previously mentioned, Ngcukaitobi argues that  the  SANNC’s was originally conceived as an anti-colonial movement. However, he notes the constitution of the SANNC outlined one of its aims as being to educate ‘Bantu people on their rights, duties and obligations to the state’.^{[28]Ngcukaitobi (note 1 above) 144.} Msimang, the third protagonist of The Land is Ours, drafted this constitution. Reverend John Dube, an ‘exempted native’ who grew up on a mission station and studied in the United States, was elected president-general. In his inaugural conference address, Dube urged Africans to use this new platform in order to proceed ‘into the higher places of civilisation and Christianity – not backward into the slump of darkness nor backwards to the abyss of the antiquated tribal  system’.^{[29]Cited in S Marks The Ambiguities of Dependence: Class, Nationalism, and the State in Twentieth-Century South Africa (1986) 53.} Dube also proposed that the SANNC should retain a ‘deep and dutiful respect for the rulers whom God has placed over us’.^{[30]Cited in Ngqulunga (note 31 above) 60.} In light of the afore-going, it is difficult to understand Ngcukaitobi’s claims that colonised elites such as Seme had an ‘anti-colonial consciousness’ and that the organising principle of the SANNC was ‘anti-colonial’.

4. Constitutionalism from whom, for whom, for what?

I now turn to the second motif of The Land is Ours, namely, that these elites formulated anti-colonial constitutional documents, the spirit of which was eventually carried into the Constitution. This theme is important to Ngcukaitobi’s thesis that the idea of a bill of rights and, by implication, post-1994 constitutionalism originate in the writings, cases and political campaigns of African intellectuals and lawyers. In this regard, Ngcukaitobi writes that, ‘It is not possible to draw a straight line between the writings of early African intellectuals and the present Constitution.’^{[31]Ngcukaitobi (note 1 above) 5.}

An altogether different question is whether constitutionalism originates from South African soil and specifically from the ideas of African intellectuals in the late nineteenth century and early twentieth century. Ngcukaitobi conveys his position in the sub-title of the book. The answer to this question is, however, also complex. First, mid-nineteenth century African intellectuals’ ideas about constitutionalism can be traced to 1853, when the Cape Colony’s government became representative. A crucial part of this new constitutional arrangement was the system of qualified but non-racial franchise. As can be gleaned from African-focused newspapers in the second half of the eighteenth century, amakholwa began making constitutional arguments and claims based on this spirit of Cape liberalism. Secondly, colonised elites’ ideas about liberalism and constitutionalism were augmented and sharpened by constitutional ideas that came with Africans who studied in the United States and in Britain towards the turn of the century. African law students who studied internationally returned to South Africa empowered by constitutional theories formulated by European jurists such as Montesquieu and AV Dicey. ^{[32]Ngcukaitobi (note 1 above) 156–158.} Ngcukaitobi’s narrative shows that these returning students, most notably Seme and  Mangena, influenced the early ANC’s language of rights, unbiased judiciary and legality. Given all these influences, is it correct to suggest that South Africa’s constitutionalism emanates from ideas formulated by African intellectuals and lawyers?

A final question is whether the ANC’s three human-rights documents were anti-colonial. On Empire Day 1923, the ANC adopted a ‘declaration or statement or Bill of Rights’. The bill called for equality, property rights, the right to unrestricted ownership of land, right to vote and the universal application of Cecil Rhodes’ framework of ‘equal rights to all civilised men south of the Zambesi’. Ngcukaitobi mentions this bill to answer charges that the current Bill of Rights is animated by a ‘Eurocentric mindset’. His answer is that the ‘idea of a Bill of Rights had its origins in South Africa’.^{[33] Ibid 1.} This answer does not discharge the allegation that the Bill of Rights is animated by a European mind-set. I have spent a long time charting the intellectual history of early colonised elites precisely to dispute the notion that these intellectuals did not have a ‘Eurocentric mind-set’. Furthermore, the nature of the rights outlined in that 1923 Bill of Rights could be said to have a European pedigree. A missing piece of the puzzle in ANC historiography is a discussion of what influenced the ANC’s thinking in coming up with a bill of rights in 1923. Ngcukaitobi’s submission that, ‘The idea of a Bill of Rights had its origins in South Africa [emanating] from a group of black intellectuals and legal practitioners at the beginning of the twentieth century’^{[34]Ibid 1–2.} is only sustainable if these internationally trained lawyers did not have any outside influences.

Ngcukaitobi points to the ANC’s 1943 African Claims as, ‘South Africa’s first Bill of Rights’.^{[35] Ibid 267.} However, as he notes, this document arose directly from the Atlantic Charter. Finally, Ngcukaitobi asserts that this document is an ‘anti-colonial statement’ and that, ‘The idea of the Bill of Rights was a negation of colonial violence.’^{[36]Ibid 7, 2.} This assertion has merit. Although this document did not call for the return of land and the restoration of subjugated indigenous sovereignties, it contained an extensive list of claims and rights that, if accepted by the Smuts government and implemented, would have led to liberal order. Liberal order and not postcolonial order, because the drafters of African Claims explained that, given the fact that white settler minorities were ‘politically entrenched’, they were not asking for self-determination. Rather, they were asking for full citizenship rights and participation within the structures of the settler-created state.

5. Conclusion

The lives of the men that Ngcukaitobi writes about were remarkable, almost epic. Most of them left South Africa at a young age, lived and studied in other countries, contributed to the birth of early Pan-Africanist thought and came back to fight for rights that they believed were due to them. Their fight involved rewriting Western modernity to ensure that they have a place in it and setting up trans-ethnic political organisations, newspapers and business organisations; and they sought to combine law and politics to launch test cases. As I have tried to show in this review, these elites were not passive recipients of the colonial order. Early black lawyers’ political ideas and legal strategies contributed to the (re)constitution of Western modernity and the colonial order. Most importantly, these ambiguous men played a decisive role in the spreading of principles of Western constitutionalism as originally formulated by European theorists.

Scholars and students of settler colonialism, legal history and legal philosophy, the liberation struggle and Pan-Africanism should consider The Land is Ours essential reading.