African Migration, Human Rights and Literature

Fareda Banda

• Editorial: Hart Publishing
• Año: 2020
• ISBN:
  9781509938353
• Edición: 1
• Categoría: Derecho
• Categoría: Teoría y práctica del derecho

This innovative book looks at the topic of migration through the prism of law and literature. The author uses a rich mix of novels, short stories, literary realism, human rights and comparative literature to explore the experiences of African migrants and asylum seekers. The book is divided into two. Part one is conceptual and focuses on art activism and the myriad ways in which people have sought to 'write justice.' Using Mazrui's diasporas of slavery and colonialism, it then considers histories of migration across the centuries before honing in on the recent anti-migration policies of western states. Achiume is used to show how these histories of imposition and exploitation create a bond which bestows on Africans a "status as co-sovereigns of the First World through citizenship." The many fictional examples of the schemes used to gain entry are set against the formal legal processes. Attention is paid to life post-arrival which for asylum seekers may include periods in detention. The impact of the increased hostility of receiving states is examined in light of their human rights obligations. Consideration is paid to how Africans navigate their post-migration lives which includes reconciling themselves to status fracture-taking on jobs for which they are over-qualified, while simultaneously dealing with the resentment borne of status threat on the part of the citizenry. Part two moves from the general to consider the intersections of gender and status focusing on women, LGBTI individuals and children. Focusing on their human rights and the fictional literature, chapter four looks at women who have been trafficked as well as domestic workers and hotel maids while chapter five is on LGBTI people whose legal and literary stories are only now being told. The final substantive chapter considers the experiences of children who may arrive as unaccompanied minors. Using a mixture of poetry and first person accounts, the chapter examines the post-arrival lives of children, some of whom may be citizens but who are continually made to feel like outsiders. The conclusion follows, starting with two stories about walls by Hadero and Lanchester which are used to illustrate the themes discussed in the book. Few African lawyers write about literature and few books and articles in Western law and literature look at books by or about Africans, so a book that engages with both is long overdue. This book provides fascinating reading for academics, students of law, literature, gender and migration studies, and indeed the general public.

PART I

Plotting Our Journey

1

Artivism, Literature, Law and Justice

Fictional literature and the law both involve story telling: one to entertain the reader, the latter to persuade. To be successful, both require the narration to engage the audience – whether that be reader or court. Both must take the reader on a metaphorical journey.¹ Writers and lawyers are specialist advocates for their clients. A good story sets up characters that we care about, and presents them with a dilemma that finds resolution or provides release at the end. Lawyers are legal ghost writers. They translate the client’s story into legally recognisable grounds.² For judges, the job involves choosing between two competing and contradictory narratives, sometimes of the events leading the protagonists to the court, sometimes about the interpretation that should (legally) be given to the problem posed. Judges construct their judgments with a keen eye to persuasion and justification of their reading of events.³ Indeed, many judgments have an elegiac quality in their rendition of a narrative of ‘Justice’.⁴ Others go so far as to ground decisions in poetry and literature.⁵ Richard Posner contends that the two disciplines, law and literature are interlinked.⁶

This chapter explores the many ways that human rights advocacy has been undertaken by various actors including novelists, poets, artists, musicians and even politicians. Some have coined the term ‘artivism’ which is a merger of art and activism.⁷ This can take many forms. Adriaan Van Klinken cites Molefi Asante’s definition of an artivist as one who: ‘uses her artistic talent to fight and struggle against injustice and oppression – by any medium necessary’ and ‘merges commitment to freedom and justice with the pen, the lens, the brush, the voice, the body, and the imagination.’⁸

Many of the books and short stories cited in this book point to authors and poets ‘writing justice’ to challenge human rights violations.⁹ As noted in the Introduction, in politically repressive states the violation of human rights is told through allegorical novels.¹⁰ I engage other forms of writing and representation, including autobiography and the use of music, photography and art. Each form speaks to different narrative constructions informed by the intended audience of the creator – an autobiographical account is radically different from reportage; how an asylum seeker frames their claim to a decision-maker may be different to how they would express themselves in a letter to a friend.

I also interrogate what it is lawyers mean when they speak of justice. Is justice merely an aphorism for ‘just us’ as Charles Mills contends in The Racial Contract?¹¹ Thinking about ‘writing justice’ also involves the rendering visible of people whose contributions have been lost in the mists of time or who have deliberately been written out of existence. Worthy of mention is the pioneering work of the polymath Sol Plaatje, author, teacher, translator of Shakespeare and founder member of the organisation that later became the South African National Congress.¹² More recent is Tembeka Ngcukaitobi’s The Land is Ours, tracing the lives of extraordinary black South African men who, the author argues, preceded the Mandelas and Tambos as the pre-eminent lawyers representing black South Africans and challenging unjust laws. He contends that the much lauded South African Constitution relies for its ethos and vision on the work of these early lawyers. Ngcukaitobi goes beyond law to show how music and literature played a part in uplifting morale and also creating transnational solidarity movements including between Black Americans experiencing their own discrimination and South Africans.¹³ The fact that it took Ngcukaitobi, a young, black South African lawyer to excavate the contributions of these men and women, speaks to the truth of the old saying, ‘until the lion learns to write, the hunter will always be the victor.’

It is as well to acknowledge the complexities involved in constructing narratives of justice from the outset. On a related issue of human rights law, Alex de Waal utilises a self-reflexive piece to consider the methodology used in the advocacy efforts of human rights organisations and specifically his own part in the narratives of oppression created by them. In it he shows how well-intentioned people may get things wrong, and identifies the mistakes made by major human rights organisations (and de Waal himself) when trying to ‘right justice by writing about injustice.’¹⁴ Contrasting the approaches of two human rights organisations (Amnesty International and Human Rights Watch), he identifies the use of the human-interest story as a driver in advocacy work by the latter. He also shows how the narrative is crafted with a specific end in sight: ‘If journalism is the first draft of history, the human rights report is the draft of the prosecutor’s indictment.’¹⁵

The problem with this story-telling, as he later acknowledges, is that the narrative created is often one that replicates what Makau Mutua calls the ‘Savages and Saviors’ scenario. In de Waal’s account: ‘In the West, we like morality plays with clearly identified heroes and villains, in which we can play the role of savior. The best tellers of these fairy tales are celebrity activists, the evangelists of the human rights business.’¹⁶ De Waal is also honest about how narratives can be moulded by omission and silence. This can be as a result of state censorship or a carefully thought out strategy by the narrator. Recalling his subsequent silence on Rwanda after he left the organisation that he had co-founded and in which he had worked extensively on Rwanda in 1994 and beyond, he notes:

Silence can be a deliberate decision. It comes in many forms, including telling partial truths or postponing speaking out, anticipating a more propitious moment. Human rights advocates ration their courage and indignation. As Stanley Cohen observes in his classic investigation of denial, it is not possible to be outraged about every single rights violation; the advocate needs to choose. And that choice often reflects an effort to craft a narrative that will gain attention.¹⁷

I.Justice in Law and Literature

While the idea of justice is often explored through a legal and philosophical lens, literature also opens up enormous possibilities for its elucidation.¹⁸ Writer Viet Thanh Nguyen reminds us that, ‘justice is not the same as law.’ He goes on to note that the demarcation of borders can create laws whose breach may lead to the criminalisation of many migrants and the creation of prisons out of refugee camps. He asks, ‘But if borders are legal, are they also just?’. He reminds us, ‘our notions of borders have shifted over the centuries, just as our notions of justice and humanity have.’¹⁹

Kenji Yoshino uses Shakespeare’s plays to explore the idea of justice and to discuss US constitutional law and broader international concerns.²⁰ The plays are alive, Yoshino contends, and still retain the power to provide insights into contemporary concerns.²¹ He uses Othello to discuss the case of the American Footballer OJ Simpson, who was accused of murdering his former wife and her male friend. It is not solely the race angle that interests Yoshino. Rather, he focuses on the tokens of betrayal. Desdemona is accused of unfaithfulness by Othello because a handkerchief that he had given her is found in the possession of the man, Iago, whom he thinks has cuckolded him. Similarly, the glove that was found at the murder scene in the OJ Simpson case and which formed a central plank of the evidence against Simpson, is one of a pair of gloves that his murdered former wife, Nicole Brown Simpson, had gifted him. Yoshino uses these analogies to explore the nature of evidence and the human bias towards ‘ocular proof’, or believing the concrete (physical) over the abstract.

[I]n the assessment of guilt or innocence, the handkerchief and the glove played an inordinately large role. In Othello, the question of whether Desdemona is guilty of adultery comes to depend to a staggering degree on whether she has the handkerchief.²²

We know, in Desdemona’s case, that Iago has arranged for both the removal and the ‘discovery’ of the handkerchief. Othello thus convinces himself of her guilt. On the OJ Simpson case, Yoshino notes that:

The defense team did not, and could not, argue that the murderer was not wearing gloves. Rather, they argued that the right-handed glove was taken from the scene of the murder and planted on Simpson’s Rockingham estate to frame him for the murder. That would require an Iago figure. The defense team cast Mark Fuhrman, a police officer who had repeatedly made racist remarks in the past, in that role.²³

In the OJ Simpson case, the ‘ocular proof’ was that the glove did not fit OJ’s hand. Yoshino gives reasons why this may have been: the blood and dew at the crime scene had shrunk it. Furthermore, OJ Simpson was wearing plastic gloves when he tried it on. The jury, seeing that the glove did not fit, decided to deliver a finding of not guilty, thus complying with the catchy summing up instructions given by Simpson’s lawyer, the late Johnnie Cochran, ‘if it doesn’t fit, you must acquit.’ Desdemona, unable to produce the handkerchief given to her as a love token, is found ‘guilty’ by Othello, but is later vindicated. Yoshino uses Othello and the OJ Simpson case to muse on the reliability of eyewitness testimony, the efficacy of relying on juries and the ‘fallibility of collective human factfinding.’²⁴

Kieran Dolin’s analysis of the Rodney King case, four years before that of OJ Simpson, where an African American man was beaten by the police, echoes Yoshino’s analysis on the uses and misuses of eyewitness testimony in the acquittal of the officers involved. ‘Their assault had been filmed on a home video, but after minute-by-minute, frame-by-frame analysis, the white jury accepted the defendants’ version of events that the force was necessary to subdue the apparent victim.’²⁵

Yoshino examines the confirmation hearing (which precedes appointment to the US Supreme Court) of the first Latinx woman, Sonia Sotomayor. Her nomination, by the first African American President, Barack Obama, was challenged, in...