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Disentangling the laws On Juan Obarrio’s The spirit of the laws in Mozambique

University of Toronto


Comment on Obarrio, Juan. 2014. The spirit of the laws in Mozambique. Chicago: University of Chicago Press.

Juan Obarrio’s Spirit of the laws in Mozambique foregrounds a number of issues in politics and political economy that have long been of interest to scholars of state formation in Africa: What is the status of tradition and custom in the exercise of sovereignty? What is their salience to modernization? How have they been historically corralled to conservative processes of tying people to land, and therefore to the production of ideas of locality? And how do all these questions relate to the neoliberal project that comes to reanimate nation-making by routing it through internationalist discourses of democracy and international development at the present time?

Already the questions I have just enumerated reveal a number of keywords, each of which gets extensive conceptual and ethnographic treatment in Obarrio’s account: tradition, the customary, state formation, sovereignty, locality, modernization, and development. But because his setting is Mozambique, the history that he adduces for interrogating these issues also make them representative of debates to be had elsewhere on the continent. Mozambique’s history of Portuguese colonialism, the lengthy civil war that took place after the dismantling of colonialism, and the processes of nation-building in its aftermath generate intense focus on the urgency with which the questions are being navigated in the postcolony. And this urgency proliferates significations that go well beyond the Mozambican context itself. Crucial to this context is that tradition and customary laws were banned in the country for thirty years following the victory of FRELIMO in 1975. As Obarrio shows us, however, the lengthy hiatus did not necessarily spell the end of tradition and custom. Rather, the hiatus provided the opportunity for various actors to progressively retranscribe the terms by which the issues might be engaged. Some chiefs in FRELIMO-controlled regions retained residual authority; others in such districts seized opportunities for channeling local political sentiment; while yet others exerted continuing if disguised control through kin surrogates and affiliates. Furthermore, the abolition of chieftaincy and custom in the name of building a socialist state during that three-decade period was replaced with the policy of villagization, which in itself bore uncanny resemblance to the social organizing structures that had hitherto been pertinent to the customary realm. The policy of villagization, inspired by the ujaama experiments carried out in Julius Nyerere’s Tanzania, entailed the collectivization of families (from 250 to a 1000 families in each instance) into villages that became the nodal points for land redistribution, conflict resolution, resource allocation, and relationships with the bureaucratic state apparatus. In Mozambique’s period of villagization the protocols for nominating or electing heads of these collectivities often folded into them the recognition of “customary” heads but now expanded to include church leaders, local state activists, and even erstwhile traditional chiefs. Under pressures of neoliberal modernization in the 1990s customary law and the chiefs that had always been considered their prime custodians were officially unbanned by the Mozambican state. The domain of the customary was reassigned new roles in the neoliberal nation-making project, including primarily juridical ones in addition to the integrative socio-political dimensions that were always thought to be in their purview. The unbanning of the domain of the customary in the country, however, does not represent a “return of the repressed.” Rather, it must be seen as the reluctant acknowledgment of what Frederic Jameson has described elsewhere as “multisynchronicity.” As Jameson puts it, multisynchronicity is “the coexistence of various synchronic systems or modes of production, each with its own dynamic, or time scheme” (1981: 97). The “or” between synchronic systems and modes of production in this formulation is a telling sign of ambivalence on Jameson’s part, since the two terms are clearly not equivalent. If we focus on the multiple social, cultural, economic, and psychic sedimentations that colonial and postcolonial nation-formation in Mozambique entailed, and remember that tradition and the customary, while placed in abeyance, never completely evaporated, we come to understand that their resuscitation under the aegis of neoliberalism represents the coming-to-the-foreground of a hitherto repressed temporality. This multisynchronicity is something that Obarrio himself recognizes in his own account when he writes,

The Mozambican juridical sphere is itself a multilayered pastiche of various legal and regulatory regimes, combined with various normativities, sedimented throughout colonial and postcolonial history. The current “system” of legality and conflict resolution is a mosaic of overlapping political structures and legal regimes, resembling one of the Chinese encyclopedias famously “uncovered” by Borges. A manifold array of “informal” mechanisms of conflict resolution (chiefs, religious structures, kinship) mixes with aspects of Roman law, colonial codes, Socialist normativity, Western constitutionalism, and common law, constituting an extremely complex infrastructure in a landscape of political fragmentation and juridical difference. (Obarrio 2014: 35)

The overall history of tradition and custom that Obarrio provides for Mozambique in The spirit of the laws recalls to mind at various times Mahmood Mamdani’s now well-known discussion of the dialectical relation between citizen and subject within colonial governmentality. But beyond Mamdani’s Citizen and subject, which is clearly a strong influence behind Obarrio’s conceptual apparatus, is his more recent Define and rule (2012). A critical distinction that must be noted between Obarrio’s and Mamdani’s accounts of colonial rule is the different emphases they place on the question of migration, whether internal or external. If we take a leaf from Mamdani’s elaborate discussion of the production of tribes (Obarrio’s tradition and custom) under colonial governmentality in Africa, India, and elsewhere, we note in the case of British colonial West Africa that one consequence of indirect rule was the installation of origin as the dominant mode for understanding native populations. Migration was concomitantly rendered a conceptual anomaly, even though the realities of colonial governmentality entailed generating conditions in which people either had no choice but to migrate to economically more viable nodes or were persuaded to do so through different incentives or blatant force. Thus in East Africa, Britain’s indentured labor policy was to bring over 30,000 Indians from the Indian subcontinent to work on the East African railway lines from the 1880s to the 1920s. A similar process was to take place with Indian labor to Mauritius by both the French and the English, and with convicts from British Malaya to South Africa, setting up what in each context of settler colonialism was to be described by historians as the “colonial sandwich,” with whites in the higher echelons of colonial administration at the top, Indians and coloreds in the commercial middle classes, and blacks at the bottom of the pile, typically in the sphere of agriculture. The distinction between “tribes” and “races,” as Mamdani (2012) shows us in Define and rule, allowed the category of race to be attached to Europeans, Arabs, and other nonnatives, while indigenous groups, perceived as essentially longterm sedenterists rather than nomads, retained the nomenclature of native tribes. It was not uncommon to find rural-to-urban economic migrants in West Africa described as “aliens” in the colonial record (this was the case, for example, in the Gold Coast Colony; see Quayson 2014). This was completely in keeping with the idea that only those who could be demonstrated to have had long-term settlement in a particular area could claim rights to origin and therefore to land and thus the traditions that defined the social relations of that area. Not only that, as Mamdani further shows, the privileging of tribes as the primary conduits for localizing political organization in the colonial period also produced mono-tribal administrations “overseeing a triple tribal monopoly—over land, governance, and dispute settlement” and thus also institutionalizing tribal discrimination (Mamdani 2012: 52). While Obarrio amply illustrates the progressive institutionalization of monotribal administrations under Portuguese colonialism, their break-up during the war, and their subsequent reconstitution under FRELIMO, he does not provide us an account of the different configurations between insiders and outsiders that the domain of tradition and custom came to instantiate within each historical epoch. This is an especially pressing question given the realities of mass displacement and ethnic return migration that were concomitant to the long drawn-out civil war in Mozambique. And the issue becomes even more pertinent when looking at the long durée of Mozambican population movement in the context of labor migrations in the southern African region in general. Tens of thousands Mozambican men were actively recruited to go and work in the mines in South Africa from the 1880s onward, setting up a continuous loop of intraregional migratory flows from and to Mozambique within the region and instituting a complex relationship between capitalism, alienation, nostalgia, and self-making that is still pertinent to this day. That Mozambique’s civil war intensified the process of indigent labor migration there is little doubt, but the question is what happened to the migrants that may have decided to finally come back home to settle on the termination of the war? How did the processes that attended the domain of tradition and custom impact upon how these postwar migrants were considered as inside-outsiders, and thus objects of both adulation and suspicion? If we scrupulously review the processes of Mozambique’s nation-state formation from the perspective of mobility, what contradictions might it reveal about the now dominant neoliberal project, which as a rule works with an old model of sovereignty that is colonialist in more ways than one? These questions transcend the Mozambican case and may be addressed to African political theory in general.1

That The spirit of the laws does not touch on these questions is not necessarily a flaw or tragic absence in its conception. For what Juan Obarrio does he does beautifully and provocatively: to provide a rich, detailed, and variegated ethnographic account of the templates by which the socio-legal, political, and juridical frameworks of the African nation-state have been and are being forged in the full face of the contradictory constituencies within which laws are articulated. The book will come to be seen as an abiding classic in this respect.



1. It is interesting to note, for example, that in Terence Ranger’s review of the now-classic The invention of tradition that he undertook in 1993, he shows no sense that mobility impacts in any way on the inventions of tradition.

Ato Quayson

Centre for Diaspora and Transnational Studies University of Toronto
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