Poor People’s Movements and the Law

by S'bu Zikode, Wits University, 2 December 2011

I wish to thank the Socio-Economic Rights Institute of South Africa for organising this seminar to discuss the law and social movements. I also wish to take this opportunity, on behalf of Abahlali baseMjondolo Movement SA, to extend our deepest gratitude to SERI for all the legal struggles they have shared with us in support of our right to organise for our rights to land and housing, our right to the cities and our right to human dignity.

Abahlali has a lot of experience to share on this important topic. It is true that in Abahlali we are working very hard to build the power of the poor from below. It is true that doing this through organising and mobilizing is not easy. It is also true that this kind of work needs a lot of popular education through a new spirit of Abahlalism. We need to build a spirit of political and economical consciousness through constant discussion and reflection on our situation and our struggle. A spirit that recognises that we are poor because we were made poor and that we must work hard to unite the poor in order to resist this poverty imposed on us. A spirit that we can win this battle against all forces that refuse us land and freedom, forces that want to keep us confined in the dark corners of our society.

The main teaching that we have developed amongst our struggles by and for the poor is that we all count the same in our society. Therefore we must carefully work out the best ways to keep us together in order to build our power based on the principle that every person deserves a chance to live a decent life. We must build a power that will have a full force to resist and destroy all forms of repression, exclusion and disregard for human dignity.

It was through this collective force that Abahlali, CALS and many others were able to destroy the then 'Slums Act'. This was a great legal victory. It stopped the state from turning towards an open attack on the poor. But there is a world outside of the courts and our movement was attacked in the Kennedy Road settlement just before this judgment was read out in the Constitutional Court. People were killed, injured, arrested and displaced as a result of this attack. The ANC leaders that came to the settlement the morning after the attack were very clear that they considered it completely unacceptable for us to have taken the government to court. They told people that it was our court action that was keeping them in shacks, that we were to blame for their suffering.

You can win in court but be destroyed outside the court. It is very important for pro bono legal work to develop a serious focus on defending the right to organise outside of the courts and to defend people when they are under attack. We had to go underground after the attack, regroup and rebuild with a carefully worked out political and legal strategy. We continue to admire the work of SERI and the way that they supported us in these difficult times. Our comrades, the victims, their families, the movement and our partners and friends cannot forget.

Often people fail to recognise the need to balance media strategy, political strategy and good legal strategy with organising on the ground. We think that the way our movement survived this repression is one of the best examples we can share with our society about how to organise in the space of unfreedom in which the poor live in this country.

There was an Italian communist called Antonio Gramsci. He wrote in prison. He said that the legal country is not the real country. This is also true in South Africa. The law may protect you against eviction or repression on paper but in reality, if you are poor, councilors, landlords and the police all treat you as if you are beneath the law – as if you don’t count to the law. Poverty is treated as criminality, as ignorance and criminality. When it is politicized from below it is treated as treason. It is very important that progressive lawyers recognise that while the law is a very important terrain of struggle the way life is lived beneath the law is very different to how the law looks in the books.

It is also true that the struggle of the poor is often diverted to courts because it is known that this is where the poor are weak. We are weak on this terrain because the legal system disallows us to meet with the standard set to exclude the poor. For as long as the legal system is commodified it will be strongly biased towards the rich and powerful. We all have to struggle to remove the legal system from the rule of money. But sometimes these weaknesses have also taught us a lot of different lessons which we can use to confront this reality. The Western Cape Anti Eviction Campaign has demonstrated very well that since the law cannot always serve the interest of the poor sometimes it is better to delay or even frustrate the working of the law than it is to appeal to the law. If the enemy forces us into courts the poor can still use certain tactics to aid the poor.

The state has used its criminalisation of activists to force the struggle of the poor into the courts. This has been very clear in the Kennedy 12 case after the attack on our movement in September 2009. This attack was not just an attack on Abahlali. It was also an attack on our hard won democracy. If it was not for SERI’s commitment and experience in the field of social justice, our movement could have been defeated and destroyed.

We are proud to have a partnership with SERI. Many pro bono legal organisations are not willing to take instructions from poor people. They often want to take over poor peoples’ struggles and to decide for and not with the poor. Sometimes they even try to tell us that we mustn’t protest while a case is before the courts. Sometimes they are more worried about the law then the people, the living human beings, that they represent.

Our partnership with SERI confirms that the law can be used to advance the interest of the poor. But this possibility can only be realized when the poor are organised and have recognised their power. Today Abahlali in Tumbleweed, Howick, in KwaZulu-Natal, salute the work of SERI. The threatened eviction of this community by the uMgeni Municipality may be far from over but what impressed Abahlai is how the municipality has been forced to negotiate with us. This intervention by SERI has made comrades there to feel proud as they feel their dignity is being recognised with a certain degree of respect when the municipality has to negotiate with the community and our legal team. In Motala Heights SERI’s defeat of Ricky Govender has given people confidence and defended the space to organise. The Richmond Farm and other matters supported by SERI are also paving our way to reclaim our dignity. A dignity that in fact shack dwellers and the poor count the same as others in our society. A dignity that in fact people that have been herded into transit camps must be engaged with respectfully and seriously.

One of the reasons why SERI has been so successful in providing legal support to Abahlali baseMjondolo is that their ideas and their approach fit into the needs of Abahlali. But this may not have power on its own. This strategic approach can only move into the real world and start to change it when it has the living force of Abahlali behind it. Any legal strategy that is worked out between the organised poor and legal experts will have living force behind it when the poor accept it as their own.

However the law can be very dangerous for the organised poor when it demobilizes us. It is very dangerous for the poor to think that the law will provide all the answers to political questions. It is very dangerous for people to think that they can stop struggling because now they have a lawyer. It is very dangerous for people to allow lawyers to decide for them instead of with them.

It can also be very dangerous for the legal system and lawyers to think that law on its own can advance all socio-economic rights of the poor without the organised struggle of the working class, the poor, women, people born in other countries, LGBTI people, people living with AIDS and all other oppressed groups. Victories in court are not always victories in reality. It takes sustained mass based organisation to turn a legal victory into a real victory.

When the law fails the poor the poor are left with no choice but to struggle for political solutions. But sometimes when we lose a political battle a legal solution is the best route. Radical lawyers need movements and movements need radical lawyers. Our relationship with SERI shows how well this solidarity can work when it is based on mutual respect and when lawyers understand, as SERI does, that the legal struggle doesn’t replace the political struggle.

The organised poor stand a very good chance of using law to advance our struggle. Radical lawyers can join our struggle to advance our law in general. We want a legal system that can promote a society where everyone counts the same. We want a society in which every human being is treated with respect and dignity. We want a society where everyone is treated as equal before the law and everyone has the same ability to access the legal system. Until the legal system is removed from the rule of money movements like Abahlali baseMjondolo will have to depend on radical pro bono law firms like SERI when we decide to take a struggle into the courts or when we are forced into the courts by the criminalisation of our struggles or the use of the law to oppress us.