Liberating the Law

The first time I came to Mozambique, I gave a series of public lectures at the university. I loved it. It was total adoration at first sight, and I wanted to come back. A year later, I'm back, and I'm teaching at the university, and I'm regarded with great esteem. For the first year, I'm teaching with translators. The second year, I'm teaching in Portuguese. I go from hero to minus not even zero – zero would have been better – and people are astonished, as if I'm totally useless; and slowly I recover some esteem. It was at times quite painful for me, and sometimes the negativity would be about South Africa. ‘Why are you people so slow? Ten years after our armed struggle, we've got victory’, they’d say, and ‘The problem with South Africa is...’ and they would tell us why we're not winning in South Africa. It could be quite hurtful. But generally, I'm exalted, I'm thrilled, I'm excited. I'm learning so much. I'm seeing beautiful art; I'm hearing wonderful poetry. I'm meeting engaged people from all over the world. Overwhelmingly, it's very positive.

And one of my pleasant activities would be Saturday afternoons playing bridge with what I call the remnants of the old colonial bourgeoisie: young white people, children of Portuguese colonists, who'd come to work in Mozambique, they had now grown up in Mozambique - it was the only country they really knew. Portugal was the country of their parents. One I remember was a professor at the university, the other was a heart surgeon, the other a general surgeon, the fourth, I think, was an engineer. Indres Naidoo would play bridge, Joe Slovo occasionally would join them, and bridge was fun. There were two strict rules: you didn't discuss politics, and you didn't discuss work. It meant you could gossip; you could talk about food you'd had, about romances and bridge and cards and cards and cards, but it was giving you head space ... a little bit of relief from the intensity of work, the intensity of politics. One day, I'm dealing the cards, and we're bidding. The one surgeon says, ‘Albie, what do you think about the closing down of the law school?’ I said, ‘What?’ He said, 'Didn't you hear? It was on the radio. Samora Machel has closed the faculty of law.' What? That's where I'd come to teach, working on family law and international law. And that was the first I heard that he closed it down. It turned out he was very disappointed with the people who were coming out of the faculty. We thought we were all revolutionary and progressive in our outlook and manner and style and so on. But it seems as soon as some of them graduated, they went to their briefcase. They went to pomposity. They picked up the idea of the 'important lawyer' which was so hostile to the comradeship that been established in the armed struggle, people like Samora Machel, four years of schooling, self-taught, brilliant mind, doing things together and very anti-hierarchy other than the hierarchy of political structure and organisation necessary for running things. But otherwise, total equality of voice and here now are these pompous people leapfrogging the whole university experience. He just closed it down. It turned out much easier to close a law school than to open it. And when, years later, it was reopened, it was more conservative. It was more oriented towards intentionally, producing exactly the kind of people that Samora couldn't stand.

So, what's going to happen to me now? I've learned the language. I'm embedded in society. I want to live there. I'm reporting to Mozambicans on South Africa. I'm reporting to South Africa about Mozambique. Not military stuff, but politics. So, they offer me a job at the Ministry of Justice, and I'm very happy to go there. The Ministry of Justice is now helping to create a new justice system for a newly independent country, working from the grassroots upwards. And the main emphasis was on the creation of what were called 'tribunais populares', popular tribunals in the communities. Popular meant of the people, not of the state. It was immensely impressive. I would go to what we call the township in South Africa – the reed city. You have the cement city – high blocks up on the hillside near to the Polana hotel, older buildings from early colonial times afterwards, made of bricks and stone and so on – and then the reed city – self-constructed by the people with thatched roofs and just reeds to create the compartments. The tribunais populares would mainly be held in the reed cities. The people would choose their own judges, and they would have five judges. Normally, two would be women, which was revolutionary. They were chosen not because they were learned in the law, but because the people trusted them as neighbourhood persons with fairness, intelligence, wisdom, working together; and the procedures developed there were very much based on traditional dispute resolution, where you call the parties together, they give their complaints, you listen to both sides, you call witnesses, people from the community can all join in, and it's done in a very collective way. It's seen as a problem not just of A and his wife, or C and a husband. It's a problem of the neighbourhood, of the community. They must all contribute to the solution in a very fair way that's drawing on tradition.

What was new was the rules that applied. And the rules didn't come from whether you were Shangaan or Nyanja, or belong to this tribe or the other, or whether you were Catholic or Christian or secular, the rules came from the principles of the Constitution, and the rules were seen as socialism. In practice, that meant sharing. It meant equality. It was very important for women, because it gave them equal status to men. There was no hierarchy. There was no sense of patriarchy governing and ruling. And the fact that there'd be at least one woman – usually a strong woman – on the court, was important, and women could speak out. That was very vital. Most of the work dealt with family disputes and small-scale crime; theft of a goat, stealing some money, things of that kind. If it would be serious homicide, that would go to the other courts at a higher level. In my work in the Ministry of Justice I would sit in on the disputes and be hugely impressed.

I remember one year we flew up to Pemba, that's right up in the north, and took a bus quite deep into the bush, and then we got onto a Jeep and drove over a very bouncy track to arrive at this village. No electricity, no radio, no telephone, only people coming occasionally, and only one literate person, the school master, and he's training kids. This school master would keep a record of the proceedings in the local popular tribunal, and I would read. I came up with a very sad phrase: the universality of matrimonial misery. It was a time when Prince Charles and Princess Diana were having problems. The whole world knew about their problems, and here I'm finding the same problems in this village that you could only reach by plane, by truck, by Jeep; and it's usually an abusive man, philandering with other women, violence, not providing support in different ways; and you would have to look after the interests of the children, and share of the property.

Because these their homes were self-constructed, sometimes if it was a zinc home it literally meant that if there were twenty sheets, ten would go to the husband, and ten to the wife. You literally split the home into two. And then the children would normally stay with the mother, and the father would be ordered to provide grain and produce monthly – they didn’t have cash. So, it was impressive for me to see justice now being meted out in a way that was important for the people in the community. I was recording it and writing about it, and we were asked to prepare research on future family law in Mozambique. We had every kind of family there. Families married according to Muslim rights and traditions, especially along the coast and in Niassa; families married in the church or the cathedrals according to Christian rights; then families in the south living in patriarchal communities, where cattle would be given or something in lieu of cattle, and the woman would go to the husband's family, and her family would receive the cattle in exchange. It was called ‘lobolo’. Frelimo was denouncing ‘lobolo’ as a form of price for the woman in the patrilineal families in the South. In the Center and the North, there were matrilineal families where the man would go to live with the woman, and it meant her parents now had a much stronger position. She wasn't trapped in the same way.

We felt the basic law should be the same for everybody. If the relationship is sufficiently strong, they've constituted a union. If they married in the civil office in Maputo, fine. If they married in the Catholic Church, fine. If they married according to Muslim Rights, fine. If there was some exchange, fine, that's their choice, and that would be the customary law or the religious faith law that they could apply or not apply. But if you come to the state, the interest would be in protecting the integrity of the family, protecting the weaker members of the family, and protecting the rights of the children. We did research and we found that's what people wanted all over the country. I found that very valuable for my own thinking about future South Africa. Not that we followed exactly that position.

How to get this information out? We didn't have law journals, we didn't have paper – we had one newspaper that was all the paper of the country, and paper used for posters, sometimes beautifully designed. But we got funding, I think it was from a Norwegian development agency, to bring out a publication called Justiça Populare – Popular Justice. I don't say 'people's justice'. In some parts of the world, people's justice became very cruel. It justified executing traitors to the people, and it could be without due process of law, without a defence, without proper trials. But popular justice, community justice, in the Mozambican sense, worked in a very empathetic way, very participatory, very wise. It drew on important elements of traditional African law – we call it Ubuntu in South Africa today – interdependence, collective responsibility, everybody helping their neighbours, developing your own personality through recognising and supporting the personalities of others; all of that was writ large, it was strong, and we would publish it in different ways.

In Justiça Popular we tried to make it look attractive, less like a boring, dull legal journal, and make it a popular form of popular justice. And then the idea was to get some of these stories together in a book. Gita Honwana Welch – who was the Director General of the Ministry of Justice, and under whom I worked as Director of Research – and I were to bring out the book. She said, ‘Albie, it's really your book.’ I said, ‘Gita, you created the ambience, the setting. You provided such an important voice yourself, and it's appropriate that your name appears’, and she contributed some aspects herself, very directly.

I remember at the time I wrote that the big issue was: Would Mozambique remain a people's republic with a socialist orientation, or would it end up following what was called the capitalist road, opening up everything to the market, developing a multi-party system of government, but making de facto private property the center of economic life? And I remember writing at the end, saying, 'This is the future that Mozambique faces,' hoping that they would choose to remain on the socialist road. But in fact, after the bitter, terrible, horrible civil war, a capitulation of the aspects that at times could be authoritarian and very harsh, but overwhelmingly were pro people, pro poor, pro enriching the lives of people on the ground, rather than top leaders; those aspects got lost. So eventually, long after I've left Mozambique, The People's Republic of Mozambique becomes the Republic of Mozambique. The People's aspect is lost. I think the gun is taken out of the flag. The anthem is changed to a certain extent, and it's a multi-party democracy. And today we're hearing that Frelimo is clinging to power, even although they've lost popular support. I can't comment on that. I don't know enough, but it's a source of great sadness that with the achievement of multi-party democracy, which I support, and I learnt to support in Mozambique, came degrees of corruption. They were there before, but now much more entrenched, much more powerful, and a 'grab me' kind of ethic became much more pronounced than it had been before.

So, the book Liberating the Law. Creating Popular Justice in Mozambique was published, at a time when I think I was already in hospital, by Zed Press, a radical publishing house in London. It captures a lot of the thinking of those times, and I think it's an important register of what was going on, and how things were organised. But it's become a sort of museum piece, because I don't think they went on to draw on the aspects of popular justice, that we were really working the community courts in the poorer areas of the towns, in the rural areas, drawing on rich African interpersonal connectivity.