![]()
PART I![]()
CHAPTER ONE
Mozambique: Before the Law
In 2004, in Mozambique’s capital, a juridical reform of the state with future, uncertain results was unfolding. In the rural northern provinces, men and women were being called daily before the law and judged by the local apparatus of justice according to an articulation of official state norms and a newfound “tradition.” Daily, community courts, chiefs, churches, mosques, and party cells engaged in a struggle over jurisdiction. This dissemination of norms—and the attempt to conjugate them under the aegis of rational planning—questions the nature of the law’s command in the postcolony. A space is opened up for an inquiry into the specific perspective that African forms of governance offer on the uncanny blending of rationality and disorder underlying the bureaucracies that deploy the force of law. Both localities, southern capital city and northern rural district, were entangled within a double bind, a back-and-forth movement influenced by foreign actors and forces.
Mozambique presented a sociopolitical landscape that showed deep disjunctions between regions in terms of political allegiance, economic development, infrastructures, and cultural formation, which interrupted the actual enactment of the law. The absolutely compromised legitimacy of jurisdiction illustrates the predicament of sovereignty in the postcolony, as the reemergence of “custom” and its entanglements with the law produce a multiplicity of political vectors. This proliferation does not weaken state sovereignty, appearing rather as a technology of governance within local spaces of contention about the meaning of national citizenship.
The spatial and temporal discontinuities between different areas of the country separate the spaces of the inception of the law and the spaces of its alleged enforcement. The disjunctures are both territorial and historical. Trends from the past appeared to return, slightly transformed. The arbitrary logic of colonial power still seems to permeate aspects of the force of law that structured postcolonial politics1—for instance, in the key role that locality and custom have been granted in the new legal programs.
This juridico-political reorganization of sociality produced definitive impacts in the realm of citizenship. The legal reform of the post-Socialist state generated an individual citizen torn between the call of unfathomable laws and the apparent absurdity of recurrent political alterations, constantly mixing various disparate systems of norms. “Tradition” appeared to be a bedrock of certainty both for agents of governance and for members of the local communities placed under their uncertain jurisdiction. Unexpectedly, given the country’s recent political history, “custom” was once again reformatting local senses of citizenship and national belonging.
The nature of the law’s sovereignty was undergoing profound transformations marked by the demise of political regimes and the end of a devastating internal armed struggle. The post-Socialist and the neoliberal juridico-political regimes seemed to blur under the auspices of transnational forms of capital and power that present features analogous to those of the previous colonial regime. In this context, former Socialist elites were intricately linked to foreign donor agencies in a continuous “state of structural adjustment.”
At the same time facets of the previous one-party regime persisted. The “civil society” sought by transnational donors appeared to be but a cluster of institutions cut off from the state apparatus itself. Sovereignty was dispersed, as the commands generated by the central state were distorted at the moment of their implementation in the localities, according to the needs and designs of elites or local imaginations of power.
These seemingly neocolonial modalities of power operate through entanglements of private and public political sovereignties and economic agencies. The law occupies center stage in these processes in the form of a juridical reform propelled by transnational financial capital and a nascent global juridical infrastructure, which links in new ways international law and global courts with the normative spaces of locality. The discourses on law and development are, as in late colonial times, the principal tools for transforming political sovereignty and economic extraction, as a new iteration of primitive accumulation.
Those processes involved a new reconfiguration of the juridical foundation of sovereignty. This implied a broad economic and political reshaping of a nation-state through the law, mandated by a global discourse on governance, in which the rule of law and the law of value—economic and political liberalization—go hand in hand in the salvaging progression that allegedly leads every particular to a universal democratic stage.
And yet, this hypostasis of the law2 contradicts its own foundations and petitions of principle. As the following chapters demonstrate, abstract juridical distinctions between state and society, private and public, or foreign and national become blurred when confronted with actual political conditions on the ground.
This was the juridico-political landscape in the mid-2000s when Mozambique, immersed in a democratic transition, was situated before the law and the legal status of sovereignty as the prerogative of the state was increasingly denied by new forms of global governance and conditionality represented by donor agencies, corporations, and nongovernmental organizations (NGOs). The formula “before the law” entails two related senses, one spatial and the other temporal. Both meanings are crucial to an interpretation of postcolonial politics in terms of legacies from colonial and precolonial social formations expressed in current domains of law and custom.
First, “before” in a spatial sense depicts a situation of being summoned to a court of law, be it international, national, penal, civil, or even customary. Second, “before” in a temporal sense can imply systems of normativity that were in place prior to the sovereignty of the rule of law. It alludes to the status of social order and norm previous to any written codification. In the context of contemporary African politics, this can be associated with the reappraisal of “custom” and precolonial norms and the way in which “traditional culture” blends with legal forms and is presented as a panacea for a current institutional impasse or a transition from the disorder of armed conflict to the prescribed accountability of modern democratic regimes.3 Both meanings, spatial and temporal, crisscross within the contemporary Mozambican context, as transnational agencies and capital attempt to refashion the state through the social engineering of locality, by means of programs to reconstitute life through an articulation with the law.
State of the Art
This analysis of the Mozambican case study engages current debates on the anthropology of the state from the specific viewpoint of literature on the state and citizenship in the African postcolonial condition. The Mozambican state has undergone dramatic transformations in the span of a few decades. Between the late 1970s and the early 2000s this nation-state went from late colonialism to Socialism, then from civil war to liberal democracy, and also experienced deep changes in its juridical and economic regimes. Earlier on, in the nineteenth century, the territory that today is known as Mozambique—the end result of a diplomatic-military ultimatum given by Great Britain to Portugal—had been allocated to several distinct concessionary companies before becoming a proper colonial territory in the mid-1940s. These historical nuances allow a case like Mozambique to illuminate conundrums that belong to the general theory of the state.
The historical passage from a territory ruled by different concessionary corporations to a colony and, later on, from a People’s republic to a liberal democratic state calls into question the juridico-political unity of a nation-state. What legal frameworks legitimize its identification as the same nation-state? Does the foundation on a constitution or the recognition by international law suffice to establish the historical continuity of the state apparatus?
The chapters that follow explore, from the perspective of law and justice, key questions about the sovereignty of the state form in contemporary Africa. What is the nature of a state whose budget is mainly composed of foreign aid? What is the relation between executive and legislative powers when legislation is proposed and funded by donor agencies and drafted by foreign consultants? What is the territorial authority of a state whose jurisdictional power is contested at the level of the locality? What is its scope if crucial state functions—regarding customs, taxes, or territorial security and control—are delegated to private corporations? What are its boundaries if local traditional chiefs perform duties as officially recognized “assistants” of the local state and if supposedly nonexistent, former local units are still recognized by local populations as legitimate government?
In the last couple of decades, exploring similar questions, an extremely rich bibliography in legal and political anthropology has criticized, dereified, and deconstructed the concept of the state, putting in question the certainty of its center and the magic of its margins. Two main lines of inquiry can be identified within that broad corpus, which have influenced the approach presented here. One line focuses on regulation and governmentality; the other focuses on imagination and magicality. Let us observe how these analytic trends illuminate the study of the African state and the specific Mozambican case.
The first trend sheds light on the nature of the state as a field of multiple units, agencies, and modalities of regulation and focuses on practices of contract and control. The emphasis is placed on “governmentality” as an ideologized practice of power, which works through the production of “effects,” creating and enhancing the state’s alleged limits, hierarchy, or territoriality. These studies analyze the state’s self-fashioning vis-à-vis its other, as well as surveillance and control of “nonstate” sectors, whether market, civil society, political society, or various communities.4
With regard to Africa, studies employing this approach focus on the structure of postcolonial governmentality from the point of view of citizenship. This type of analysis is centered on normative categories regarding juridical institutions and the structure of the state apparatus. It takes the presence of a unified state apparatus for granted, placing locality within a restricted “cultural” space separated from the sphere of the political. This trend studies postcolonial African state formations in terms of legacies from colonial regimes, emphasizing in particular the place of the customary as a crucial locus of colonial governance that still determines the form of contemporary citizenship.
This trend focuses on the question of the bifurcated structure that the postcolonial African state inherited from colonial regimes. This decentralized form pivots on the distinctions between the central state and the local state, on the one hand, and between urban citizens and rural subjects, on the other. The emphasis is on the relation between citizenship and its opposite, subjecthood, and on the central place of the customary in transitions from colonial to postcolonial rule. A methodological distinction between culture and law leads to a differentiation between cultural rights and official legal rights.
The perspective that I take shows how customary norms and official law actually function as parallel realms of normativity, with state law also being a localized, performed construct. Hence, I avoid the dialectical binary between citizenship and subjecthood. On the one hand, the following chapters study the question of subjectification (and subjectivity) as a means to observe critical nuances in the citizen/subject distinction. On the other, they demonstrate that what is being demanded, contested, and granted at present is a form of citizenship that blends aspects of customary norms and legal rights, here defined as “customary citizenship.”
The second trend in much of contemporary legal and political anthropology studies social imaginaries of the political and ways in which the state is perceived in everyday, localized contexts. It focuses on practices of collective memory and imagination, studying symbol and ritual to emphasize the performativity at stake in the establishment of the state’s legitimacy. These studies engage the idea of the state as a multiple assemblage of institutions, or a field of forces, within a conception of the political as a strategic formation of confronting vectors. These studies examine state sovereignty while criticizing the alleged territorial and institutional unity of a single state apparatus.
Some of these works focus on the idea of the state as a mask or a fetish, emphasizing the “magicality” of state formations and an unstable constitutive link between violence and rationality. They illustrate how the legality and legitimacy of the state are reinforced by means of imagination and performance. This anthropology equates the concrete substance of the state with the materiality of memory, signs, and images.5
In relation to this perspective, a trend in the study of the African state focuses on imaginaries of power and ritualization of state sovereignty. It observes postcolonial governance as textured cultural forms ingrained in formations of state power, studying them in terms of the “grotesque,” the “banality of power,” and “conviviality between rulers and governed.” This trend, focused on governmentality and the specific “historicity of the state in Africa”6 provides a useful framework to study disparate state agencies immersed within a field of strategic forces. Centrally, this trend proposes the key notion of the “rhizome state,” which describes the African state apparatus as entwined with a subterranean array of clientelistic social networks. This trend also presents the notion of African governmentality as a “politics of the belly,” a form of governance that combines imaginaries of consumption and bodily function with private profiting from public office and the occult action of invisible forces.
The notion of the state as a mask or fetish can be operationalized in the African context as a condition in which the state apparatus appears as the central locus of political power, while it occludes a political field formed by a multiplicity of local actors and vectors (e.g., the customary). This condition is readily observed in the locality, as the ultimate laboratory of governance and definitive test of sovereignty. The African state partly founds its legitimacy, vis-à-vis local population and international community, on its recognition of the customary and tradition. Governance, in this postcolonial context of slippery meanings and elusive imaginations, means that the state fetish in its turn fetishizes the customary as true tradition. The state reproduces through official discourse and legislation the implicit magicality present in the realm of customary ritual and norm. This articulation of the modern state apparatus with the customary reinforces the sense of a mask covering the fetishization of an apparatus as sole centralized locus of power.
Some conceptions proposed by this trend pave the way for a recuperation of the original sense of the category of the state as a status or condition, which the following chapters study as the state of structural adjustment operating today in Africa.
The Spirit of the Laws
The question of the spirit of the laws bridges the motifs of the two aforementioned trends in analysis of the state: the magicality implied by the spirit and the institutionality embedded in the law. The spirit of the laws of current neoliberal reforms articulates the ritual imagination of the state and its practices of governance. Through the juridical reproduction of the customary (“community”) the state harnesses aspects of the alleged magicality of the “natural” state of tradition, its customs, and its rights.
Although the two lines of inquiry on the state pursue separate paths, this book offers a contribution by connecting aspects of their different approaches. The focus on governmentality and the focus on performance or magicality are suitable for studying local instances in which an imaginary of the customary—its discourse, ritual, authority—is deployed as part of a ritualization of the spectacle of state power through the quotidian work of institutions of justice. The book explores postcolonial governmentality as a discourse and “art of government” or performativity of power through localized strategies linking institutional apparatuses. It does this through a study of questions of law and justice, which provide a specific angle on the theatricality of state sovereignty and the legitimization of its sovereignty, allegedly grounded on the juridical. The emphasis on an ethnography of locality and of the context of the minor state to study questions pertaining to the nation-state and citizenship is motivated by the fact that it is precisely at the level of the local that the sovereignty of the modernist spirit of the law and its jurisdiction are contested through the encounter with other spirits, other norms, and other voices.
Some aspects of the two lines of inquiry overlap. Both allow for a perspective on the state as a loose set of agencies and pave the way for a conception of the state as a relation.7 The approach pursued in this book focuses on the jurisdiction of legal agencies and their blending of violence and reason as the fundamental relation that defines the state apparatus. The import of this approach lies in the fact that whereas classical liberal theory locates the foundation of sovereignty in the juridical realm, the force of law constitutes the key entry point for a critical study of the principles and pitfalls of the liberal democratic state.
From the perspective of the local, and as a distillate from those theoretical debates, my ethnographic research led to revisiting the primordial meaning of the concept of the state in its etymological origin as status. This concept referred to the situation of the prince’s estate and power, as the condition in which a sovereign finds himself. The category evolved, moving from force to law, from conveying a person’s state to representing the state as a (legal) person or individual subject. The historically original notion of the state as a temporal condition and the instability of its political identity throughout remarkable historical transformations show the central role of questions of temporality within juridico-political postcolonial formations, which must supplement the usual spatial analysis of a state’s territoriality.
The ethnographic study of the Mozambican state as a semipublic/semiprivatized sovereign institution did not lead to a conceptualization of the state as an apparatus with bounded demarcations, be they clear territorial or institutional borders. The consistency and boundaries of the state apparatus—from the mingling with transnational and private entities at the “macro” level to the blurred borders vis-à-vis the customary at the “micro” level—revealed themselves as quite imprecise. The ethnography unveiled the state as a condition, as a state of things.
The two trends of analysis of the state hold opposite views on issues of state structure, governance, and historical developments of state and citizenry, and their different perspectives on the question of civil society in ...
