P220 – Mobilizing the Law: Bargaining, Belonging and Legal Consciousness in Africa
8 July, 16:00 – 17:30

Andreetta Sophie / University of Liege
Verheul Susanne / University of Oxford


In their introduction to Law and Disorder in the Postcolony, Jean and John Comaroff (2006) underline the central and at times unprecedented role law plays in postcolonial African societies. Taking the Comaroffs’ assertion that both individuals and collective entities increasingly mobilize the law as a starting point, this panel explores the form and function legal mobilizations take. Engaging with the notion of legal consciousness as “the way people understand and use the law” (Merry, 1990), we recognize that when using the legal system or invoking the language of law, individuals or groups often express more than strictly legal concerns. Going to court, for instance, can be about obtaining leverage, about getting a bargaining chip to negotiate business, family or political relationships. Legal appeals can also be a way of negotiating citizenship, or of engaging with political imaginations of the state and its institutions.
If the law and legal language are frequently invoked as expressions of or tools to achieve something extra-legal, then this raises a series of questions we seek to explore in this panel : How is law understood? How do actors involved in revolts or resistance movements relate to the law? Do African citizens interpret or conceive of law as a repertoire for collective action, and if so, what understandings of law are mobilized and for which ends? What are the implications of such mobilizations?

Mobiliser le droit : négocier, appartenir et conscience du droit en Afrique
Dans leur introduction à l’ouvrage Law and Disorder in the Postcolony, Jean et John Comaroff (2006) soulignent le rôle central du droit dans les sociétés africaines. Avec ce constat comme point de départ, notre panel a pour but d’explorer la forme et les fonctions possibles des mobilisations du droit en Afrique. A travers la manière dont les individus et les groupes « comprennent et utilisent le droit » (Merry, 1990), nous souhaitons montrer que lorsque les citoyens ordinaires et les groupes saisissent les tribunaux ou qu’ils mobilisent le langage du droit, il s’agit souvent d’atteindre un objectif au-delà du répertoire juridique. Saisir le tribunal peut faire office de stratégie de négociation dans le cadre de relations professionnelles, familiales ou politiques. La rhétorique du droit peut être un moyen d’affirmer sa citoyenneté et de débattre de son contenu, de remettre en question l’imaginaire de l’Etat ou le fonctionnement de ses institutions.

Si la loi et le langage juridique sont souvent utilisés comme outils pour atteindre des objectifs bien plus larges qu’une décision du juge, nous tenterons de répondre aux questions suivantes : comment le droit est-il compris et interprété en Afrique aujourd’hui? Quel rapport au droit les acteurs impliqués dans les mouvements de résistance entretiennent-ils ? Les citoyens africains interprètent ou conçoivent-ils le droit comme un répertoire d’action collective ? Quelles sont les interprétations du droit mobilisées et dans quel but ?

Paper 1

Ubink Janine / University of California, Irvine

Mobilizing the law for the government or for the people? The case of Malawi’s Local Courts Act 2011

In 2011, Malawi promulgated the Local Courts Act, which legislates for the creation of Local Courts with jurisdiction over civil cases at customary law and minor statutory offences. The Local Courts were intended to remedy the profound lack of access to justice caused by the abolition of Malawi’s Traditional Courts. Fears of political abuse of the Local Courts prompted heavy opposition to the Act. These fears were largely due to the fact that the Act was introduced during the regime of the increasingly autocratic President Mutharika, and to comparisons with the Traditional Courts who were severely abused by dictator Banda during his reign to suppress political opposition, a vivid memory influencing the legal consciousness of Malawians. The Traditional Courts invoked custom and tradition whenever formal law did not serve them, which poses the salient question whether customary courts are more vulnerable to executive interference than state courts due to certain characteristics of customary law, viz. its unwritten, negotiable and relational character and flexible procedures. This paper aims to understand the hopes for and the resistance against Malawi’s Local Courts Act, and to assess the likelihood of the Local Courts coming into being and their potential impact on the provisioning of justice if they do. Can they be mobilized by the government of the day to suppress political opposition? Or will they be veritable instruments for ordinary Malawians to mobilize the law?

Paper 2

Brett Peter / SOAS, London

“As one door closes, another opens”: rights and resistance in the new terrain of international law

Over the last two decades the debate about human rights in Africa has shifted away from their universalism, and towards their uses. Scholars have analysed rights as open-ended means through which Africans resist state repression, cultural oppression, and (on occasion) economic discipline. Often these studies come with a Foucaultian twist. They unmask the ultimate complicity of such mobilisations with new forms of power geared towards producing new ‘human’ subjectivities. Africa, however, now occupies a peculiar position in the ‘new terrain of international law’ (Alter 2014). Despite low enforcement capacities, international courts and legal regimes have dramatically expanded their formal jurisdiction over the ‘internal’ affairs of states. Such courts and regimes, this paper argues, have opened-up at least formal possibilities for litigants to resist not only repressive and oppressive practices, but also basic national political orders. They have thus helped created a ‘new right – that of private individuals to effectively intervene in the sphere of international policy and strategy’ (Foucault et. al [1981] 2000, 475). These rather abstract claims will be illustrated by means of an extraordinary litigation campaign initiated by expropriated Zimbabwean commercial farmers over the course of the last decade; a campaign making use of international commercial, criminal, and human rights law, and exploiting numerous courts’ assertions of universal and supranational jurisdiction.

Paper 3

Gould Jeremy / University of Jyväskylä

Legal mobilizations at the conjunction of law and politics. A Zambian case study

Law has political effects and politics takes shape within the confines of a legal domain. This axiom is straightforward, and yet the relationship between law and politics is anything but simple. The complexities of the law/politics interface become eminently clear in cases where political actors seek to mobilize statutory provisions to leverage political advantage. As politicians confront and collaborate with legal actors, the boundary between legality and politics is blurred. Within such spaces of political legality, mobilization through law can become indistinguishable from mobilization for political gain.
This paper provides a theorized account of juridical events linked to the mop-up of political fallout emanating from Zambia’s 2011 parliamentary elections. Grounded in long-term legal ethnography within the legal domain in Lusaka, the analysis focusses on the constitution and effects of the spaces of political legality mobilized in such routine contestations.

Paper 4

Bunke Tim / University of Konstanz

The Conundrum of Coercion – The Non-Mobilization of Law in Zambia

Taking instances in which the law was not mobilized, this paper describes the understanding of law in Zambia. I argue that Zambian law enforcement agents attempt to locate legally defined crimes in the perspective of the involved parties’ collectivity. Thus, the mobilization of formal laws highly depends on the conceived affiliations and belonging of victim and/or perpetrator of a crime.
During fieldwork on the introduction of a human trafficking legislation in Zambia, allegations about forced labour among Chinese expatriates in Zambia were widely circulating. Taking this as example, I will discuss how and why law enforcement agents were remarkably reluctant to apply Zambian and start an investigation into it. Rather, they attempted to adopt the normative framework of the involved actors’ collective. Their main point of interest was on how coercion would be defined in the ‘home’ collective of the involved parties to thereby determine forced labour. By doing so the instrumentalist understanding of law becomes apparent as law enforcement agents used the law as a sort of template tool. But, while they did have the template, I argue, they failed to fill it with content and thereby were unable to prosecute cases or forced labour in the Chinese community.
This legal non-mobilization, which is based on a failed genealogical re-construction to a collectivity, sheds light on the how the legal consciousness in Zambia is rooted in the belonging of an individual.

Paper 5

Budniok Jan / University of Hamburg

Mobilizing law, seeing law and conceptualizing law: understanding conflicting perspectives on law in Ghanaian courts

“Justice has to be seen to be done”, one famous saying goes. But what do we see, when we look at courts, judges and “the law” in Ghana? Do different people – such as judges, court clerks, law users – see the same when they look at “law as process”? If not, why – and more importantly: what might be the implications for understanding, using – and studying the law? To address diverse perspectives on bargaining and legal consciousness in Ghanaian courts, I will address these questions from a perspective of legal anthropology and the anthropology of work. Based on my research on the work of judges and Ghanaian courts, my paper analyses the perception of law and courts in Ghana. It first provides an ethnographic description of day-to-day work in courts; second, I discuss the judges’ ideals and models of “working the law”, and the image of law, process and their own work they try to present to others to deal with contradictory understandings of law in their court rooms: the judges’ own model of law and legal process is contrary to the law users’ understanding of social order and imaginations of the law in particular. The law users’ attempts of mobilizing law according “the way people understand and use the law” as a bureaucratic practice, their understanding of the scope for bargaining in court, leads to a clash between legal and extra-legal interpretations.

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