Housing, Questions, and the Rule of Law

6 05 2007

By Daniel Moshenberg & Ronald Wesso
Spring 2007 – State of Nature Online Journal

“How is it that the only social housing programme worth speaking of today, and for the last fifteen years, anywhere in the world, is, and has been, prison?”

This article critically examines the relationships between the need and demand for universal, decent housing and the rule of law. By critically, we mean that the open questions of activist praxis act as that which articulates the politics of getting decent housing with the regime of rule of law. Beginning with the squatters and homeless populations, the authors question the possibilities of choosing decent, universal housing in a material world both constituted and controlled, and devastated, by rule of law. Relying on experiences in the Cape Town metro area, in South Africa, and the Washington, DC, metro area, in the United States, the article traces what might called the pitfalls of legal consciousness. Throughout, the authors contend that the designation of legal and illegal, criminal and law abiding, citizen and non citizen, resident and non resident, question and answer are ideological categorizations that reproduce the conditions that allow for ‘surplus populations’ to continue to live in desperate and demeaning circumstances. The authors argue that it is important whether struggles for decent housing are understood, by those struggling, as the rejection of the rule of law.

As a way of situating our discussion, we begin with two passages from Robert Neuwirth’s Shadow Cities: A Billion Squatters, a New Urban World. The first is a citation, which seems appropriate, in that we begin by beginning somewhere else, by noting, in passing, that this is not new, this housing in democracy, this freedom of housing, this housing politics, this housing question.

Neuwirth begins the seventh chapter, ‘The Habitat Fantasy’, with a line from Kafka: “a cage went in search of a bird”. [1] A cage went in search of a bird, a cage goes in search of a bird, a cage will go in search of a bird. One cage, one bird. One person, one vote. One bird, one cage. Each person, one prison. To each her own. How is it that the only social housing programme worth speaking of today, 2006, and for the last fifteen years, anywhere in the world, is, and has been, prison? The right to housing has devolved into sentencing programmes. The prison as global household of the rule of law is one reason we must speak of the freedom to housing, and perhaps the power to housing. But for now, it seems we must be content, for the moment, to wander about the parliament of birds.

The second passage is from the eighth chapter, ‘Are Squatters Criminals?’: “Squatter communities may be illegal, but that doesn’t make them criminal”. [2] What does it make them? One is reminded of Brecht’s conundrum. Loosely, which is the greater crime, to rob a bank or to own one? In the context of freedom to housing, right to housing, power to housing, what distinguishes illegality from criminality? Why is that the question? In the current disposition, that of the security state writ large, and perhaps that’s simply code for the United States (or the United States and Great Britain, the axis of democracy?), is the critical term criminal … or is it terrorist? Is the call for universal, decent, dignified, secure housing… terrorist? Would it be terrorist if it were a demand? A practical politics? A cry, as a pamphlet of the Western Cape Anti-Eviction Campaign suggests? Are we, ‘we’, terrorists? Are they, ‘they’, terrorists?

Again, why are these the questions? Why not: are squatters squatters? Are squatters humans? Are squatters women, men, children? What is the subject of squatting as a transitive mode of being? What is the object? And where does the sentence, and sentencing, take place?

The Western Cape Anti-Eviction Campaign (AEC) started when people, women and children and men, resisted the brutality of the sheriff of the court. These people were not prepared to accept that this agent of the law could throw them on the street if they could not afford to pay rent or municipal service charges. They therefore refused to leave. Or they simply waited until the sheriff had left and moved back into the spaces they had been evicted from. The sheriff called on the police for help. At the next eviction when the women and children and men, as people, resisted, they experienced the full force of the law. In other words they were kicked, punched, whipped, teargassed, shot and then arrested and charged.

It is important to note that at this stage the resisters were not explicitly fighting for decent housing for all. They were simply trying to stay securely within the indecent, inadequate housing they had won from the racist Apartheid government. They found that the rule of law did not allow for that. For the rule of law to stand they had to be out on the street.

This conflict between the agenda of the AEC and the rule of law was always present and just became worse over time. AEC members and leaders ended up in and out of court and prison and were released under bail conditions that effectively put them under house arrest and banned them from taking part in the struggle for housing. This alone calls for reflection on the relationship between the rule of law and the struggle for decent housing for all.

Prisoners, criminals, illegals and terrorists live in a world torn apart and divided into conflicting categories. In order for some to have power, feel free, have decent, dignified, secure housing, others are made into prisoners, criminals, illegals, terrorists. In a society divided in this way is a common starting point, a framework, an uncontested aim for a discussion of housing possible? Because without such a unifying objective, can we even conceive of a universal, decent, dignified discussion of the housing question?

For those the system turns into the homeless, the squatters, the poor, the prisoners, the criminals, the illegals, the terrorists there can be only one possible, workable starting point or framework – universal, decent, dignified, secure housing. In other words they need a commitment from society to choose this above whatever it comes into conflict with. Any other framework carries the risk of leaving them without decent housing, of normalising their suffering and oppression.

Are squatters criminal? No. ‘Squatter communities may be illegal, but that doesn’t make them criminal.’ Ok. But are we then prepared to agree, before we even talk about anything else, that it is a hideous crime that people should live as squatters? If so, who commits this crime? What if it is the very constitution of the society? What if we have to choose between decent housing and the way the society is constituted or supposed to be constituted according to the constitution? What then? Are we committed to even then choose decent housing? If not, then no decent, dignified and secure discussion between the defenders of the rule of law and the fighters for decent housing for all is possible.

And so the distinction becomes, initially, between the rule of law and… what? What exactly is criminal? Crime? Criminality? Are we talking about out-laws? Outside of the law? Revolutionaries? People who are outside in the lawmaking machine? What is the lawmaking machine, what is its name? Which means, in some sense, everyone and anyone whose citizenship invokes the memory of noncitizenship. Citizens who some time in the past, present or future are not or have not been citizens. Memory is trace, and trace is law. Women. Children. Racially and ethnically constituted populations. Religious communities. Tribals. Indigenes. Disabled. Felons. Foreigners. Foreigners all. In this sense, almost everyone is an immigrant into the land of citizens. We are all naturalized citizens, none of us is a citizen by nature, by being human.

Squatter communities are not necessarily criminal. OK. Let’s say squatter communities are not criminal. Does that mean that squatters are not criminal, squatters as squatters, that is? We’re not talking here about whether people, individuals or communities, commit crimes, but rather whether they are crimes, whether in being crimes they are criminals. How does the crime of the squatter body become the not-necessarily-so not-criminal of the squatter community? Is it scale? A billion squatters can’t be all wrong, that is, can’t be all criminal, can’t be all criminals? Is that the novelty of the new urban world? Where is the metropole in this new urban world?

What exactly is the condition of squatting? Is it a land issue? A housing issue? A home issue? A household issue? A women’s issue, in each and every case? Does the instrumentality of the rule of law always already impose a finitude to a situation, and a struggle, that is by definition open? By definition. That means, that could mean, that the right to housing might have negotiable horizons and measurable conclusions, but the freedom to housing, which we take to be the telos of the discussion of the housing question, that cannot be measured. By cannot be measured, we mean both it cannot be contained and it cannot be constrained, as in a measured tone. It must be always forever excessive and always forever extravagant.

Meanwhile, the question of the discussion forces the identification of the discussants. Are there any limitations here, especially in a planet of slums, where every day, as Mike Davis notes, in Planet of Slums, and as Neuwirth notes, every day, hundreds of thousands, some days millions, of individual humans are moving from rural zones to urban zones. [3] But how many are moving from one neighbourhood to the next, and how many are moving from ten households into one. And how many are moving from room to room, while others are sitting in overcrowded cells? How many? And is that the question, the question of number?

A world of migrants, most of whom are constituted as illegal, by nation-state, by municipality and province, by landlord, or by customary law. In Alexandria, Virginia, for example, in the shadows of Washington, DC, and around the corner from the Pentagon, there are density codes that are meant to control how many adult women and men and children can live in how many rooms. This is called public health and hygiene. But what if an entire neighbourhood is the last zone of affordable housing for miles and miles and beyond, and it has only one-bedroom and studio apartments? Are those who live in violation of the housing code criminals? Are the architects? The real estate developers? The municipality that encodes space and so writes whole communities of low and no income workers under erasure? The neighbours down the road who just don’t know? The neighbours up the hill who cannot see? How can they look down into the valley, completely transparent, completely open, and not see? In the land of those who refuse to see, the one eyed real estate developer would be king.

What is the discussion of housing in that world? What world is created by those flows of migrant conversations? The process of rapid mass urbanisation and ‘slum-isation’ make the discussants then seem unlimited in number. But the divisions the rule of law opens, and those it supports, create a situation where conversations across it can only take place in screams. And are they still conversations then?

Visitors to Cape Town can hardly avoid noticing the corrugated iron shacks that house so many thousands of the city’s residents. These areas are still known as squatter camps, a name that they were given in the Apartheid era when it was illegal for Black people to live there. Nowadays it is no longer illegal. In fact it is now illegal to evict people from that land without following due process and without providing alternative accommodation. Officially these areas are now known as informal housing. But like we said, in informal conversation, they are still the squatter camps.

Another thing the visitor to Cape Town and to South Africa cannot avoid noticing is the general pride in the country’s constitution. The idea that this is a wonderful constitution that is the most progressive in the world is cultivated constantly by just about everybody who plays some role in idea cultivation. Every political speech, every press article, television documentary, academic paper and high school lesson feels called upon to repeat this tireless, and yes tiresome, piece of wisdom. At one level it is perfectly understandable and legitimate that people should be very proud and quite relieved about the fact that they have got rid of Apartheid. But at another level we cannot help but wonder where all of this stands in relation to things like the presence of the slums and the absence of universal, decent housing. Are the people in the informal settlements perhaps expected to be grateful, proud and happy about having the constitution and thus not make too much trouble about not having decent housing? Or is the constitution presented as some kind of written assurance; a guarantee that universal, decent housing will be delivered in the foreseeable future, regardless of present difficulties?

Some time ago a homeless man moved into Genadendal, President Thabo Mbeki’s palace in Cape Town, and lived there ‘undetected’ for about four days while the president was elsewhere busy applying the constitution that guarantees this squatter (?) the right to have access to housing. What was this man thinking? Maybe he thought that finding a palace named ‘valley of mercy’ meant he could finally escape the merciless streets. Or maybe he thought he was merely exercising his constitutional right to access housing. Or maybe he just was not thinking. When the state officials eventually detected him he was first housed in a prison and then transferred to a psychiatric hospital.

The constitution that gives him the right to access housing also gives the state officials the right to do what they did to him. But where it does not give the homeless man the power to exercise his right, it gives the state officials plenty of power to evict him from Genadendal, throw him into prison and eventually categorise him as mentally ill.

For this man accepting the rule of law meant accepting homelessness. He could not have the most progressive constitution in the world and have decent housing. We believe this to be true for all of the millions of homeless people and slum dwellers. Before 1994 this was perfectly clear in South Africa. The rule of law explicitly forbade the majority of people from decent housing. Nowadays it merely sets the following condition: Before you shall have decent housing you shall submit and contribute to the profits of capital and the power of the state. It is our contention that the putting of this condition creates the possibility of homelessness and slums. In the context of bourgeois society it is in fact inevitable that many will not have the wealth and power to meet this requirement. The constitution therefore institutionalises homelessness and slums.

Why do we need the bill of rights? Why do we need the right to freedom of expression? Why do we need a law to say we have the right to access housing?

The people who invented the law-governed, constitutional republic of the USA, upon which South Africa and most democratic societies are modelled, had no doubt why legislated human rights were necessary. They knew that elites with power over others would use it to subordinate the freedom of the over-powered to the cause of protecting and extending their own elite privilege and power. Not only the ‘founding fathers’ but even presidents as late as Dwight Eisenhower warned against this. They knew that special measures were needed to restrain state and corporate power from turning humanity into their servants.

An obvious solution to this would be to give power to the poor. Or to abolish state and corporate power as such, which the victims of these institutions would do in any case if they had the power to do so. But this had the inconvenience of making the existence of bourgeois society impossible because it depends on these divisions into rich and poor and powerful and powerless. The Madisons and Hamiltons were convinced that this would be an absolute disaster. Because undoubtedly it would mean the end of the power and wealth of themselves, their friends, family and class. They also could not do nothing. This was the time of revolution. The poor were mobilised and armed. Their demands had to receive attention and had to be met at least partially or ostensibly.

Their solution to the problem was an independent judiciary governed by a legislated bill of rights. They were trying to solve the problem without risking the overthrow of capitalist society. But the problem with this is that the same constitution that legislates the bill of rights also legislates the dominance of capital and the state. It tries to solve the problems that flow from elites having power over the poor by creating an additional elite, the judiciary, whose express purpose is to protect capital and the state from overthrow, while making sure these elites do not use their power excessively. It consolidates the problem it ostensibly was trying to solve.

The condition of squatting is therefore, at least partially, a power relationship. I do not become a squatter by the mere fact of moving into the presidential palace. I become a squatter because other people have the power to categorise me as such.

And how do we, and they, they who have the power to categorise me, ‘me’, as such, how do they/we translate homeless into squatter? After all, quite a few squatters have homes … elsewhere. Just as millions of women clean, sustain, take care of tens of millions of households and are homeless… everywhere. But citizenship confers only to here and now.

What do the homeless have to do with the freedom to housing? In the United States, for example, many of the homeless, better perhaps to call them streetdwellers, are such by virtue of class action civil rights cases which ‘emancipated’ them from involuntary commitment to hospital.

Is that the majority of homeless or the many? In the Arlandria/Chirilagua neighbourhood of Alexandria, Virginia, there are at least two sectors of homeless. There are men who live under the bridge. These men are largely originally of Central American origin, the majority of them suffer alcoholism as well as the violences of living on the streets. They are many, according to neighbouring communities who drive through and according to police. They are not part of the gang problem, but they are ‘a problem’. They are part of the other problem, the Other problem as well.

They are, however, not the majority. The majority of homeless residents are those women and men and children who live on the sofas of friends and kin, those who double and triple up on beds, sleeping in shifts. Those who live in violation of density codes, of mortgages, of everything. They may list their addresses, their children may attend local schools, they may participate in local organizations and events, but they are homeless.

They do and do not consider themselves homeless. They wonder what difference the word makes, the categorization. They self identify as poor, as low income, as working, as out of work, as Latina/o or African American or occasionally as White, as old, young, not as young as they used to be, going to school, going to school for now, hoping to go to school, sick, healthy, not quite sick not quite healthy, in debt, deep in debt, hopelessly in debt, sending money back home, missing loved ones, missing ones who have passed on. They do and do not consider themselves homeless. But they do know that in some fundamental sense, their housing crisis is not one of their own making. That their living situation has nothing to do with criminality or being criminal. Some even think that those who live in big houses, especially those down the block, around the corner, or up the hill, surely they must be the criminals.

They do and do not consider themselves homeless. They do not consider themselves criminal. But they do worry about the police. The sheriff. These days, they even worry about the National Guard. In the shadow of Washington, DC, and around the corner from the Pentagon, in a place in which security and surveillance, since 2001, have become the growth industries. They know that speaking about decent and secure housing for all depends a great deal on one’s accent. There may be the right to freedom of speech and expression, but there’s no freedom of expression and speech, if one’s accent makes one a criminal.

What exactly, then, is the language of squatting? And, of course, the language of anti-squatting. What are the accents of squatting, of anti-squatting? In whose mouths? In whose ears? We are caught up in suffering, contest, conflict, struggle. We are fighting. We are fighting for homes, for life, liberty and delirious happiness.

But who are we fighting? Who is the enemy? Who are they who are fighting for homelessness, for death, oppression and suffering? Without the categories ‘them’ and ‘us’, would we have to fight at all? Surely our struggles and suffering are consequences of the painful division of humanity into home-owners and squatters, citizens and non-citizens, state officials and civilians, capitalists and proletarians, managers and workers, men and women, the powerful and the powerless. Could we imagine a society without these divisions? Do we need to? Or is that several revolutions too far? And what if we, even as we resist and demand, turn out to be reconciled to, and supportive of, these divisions?

Can we imagine a world, or a society, in which these divisions do not occur or exist? Is there an Other to Squatting? What is the condition of squatting’s Other? Consider Walter Benjamin’s statement, in ‘Critique of Violence’:

Lawmaking is power making, and, to that extent, an immediate manifestation of violence. Justice is the principle of all divine end making, power the principle of all mythical lawmaking. An application of the latter that has immense consequences is to be found in constitutional law. For in this sphere the establishing of frontiers… is the primal phenomenon of all lawmaking violence. Here we see most clearly that power, more than the most extravagant gain in property, is what is guaranteed by all lawmaking violence. Where frontiers are decided the adversary is not simply annihilated; indeed he is accorded rights even when the victor’s superiority in power is complete. And these are, in a demonically ambiguous way, ‘equal’ rights: for both parties to the treaty it is the same line that may not be crossed. Here appears, in a terribly primitive form the same mythical ambiguity of laws that may not be ‘infringed’ to which Anatole France refers satirically when he says, ‘Poor and rich are equally forbidden to spend the night under the bridges.’ [4]

What is the frontier to squatting? The right to housing, and in particular the constitutionally guaranteed right to housing, assures decent housing, in a demonically ambiguous way, assures secure housing, in the same mythical ambiguity of laws, but no more. It does not assure, for example, the site of housing. In Zimbabwe, slum residents found themselves faced with the loss of housing, referred to as a clean-up operation. They faced coercive relocation. They faced removal into inferior housing, to put it too gently. We are suggesting that in all of that, they were never denied their right to housing. They had no freedom to housing, they had no power to housing, but the right remained, demonically intact. In the zones of Harare that were swept clean, no one, neither rich nor poor, spent the night under the bridges.

Of course, the majority of squatters move into areas that have already been at least minimally settled. Their squatting crosses a different line than that of the ‘settlers’ who, precisely, mimic the various invasions of settlers decades ago.

But this doesn’t answer the question of locating or identifying the squatter’s other or the other of squatting. Is it the homeowner, the developer, the police, the State, the Church, the School, the supermarket? Is squatting defined as transitory? As transient? As transitional? As… as perhaps resistance?

In South Africa the squatter camp is the outcome of victories in a long and brutal struggle. People, women and children and men, who had no right to squat, no right to be there, had to face down the racist brutality of the Apartheid state in order to become squatters. Putting up a squatter camp on a vacant piece of land became an act of resistance as much as it was an act of survival. To come to be accepted as a squatter was a victory, an achievement that we must never forget or belittle. It makes a real, positive difference to people’s lives, as the recent experience in Zimbabwe has shown by negative example.

Resistance won squatter camps. It did not yet win freedom to housing. Why not? In the last years of Apartheid certain institutions of the organised capitalist class such as the Urban Foundation promoted the idea that the state should change its policy towards the squatter camps. Instead of seeing them as illegal and temporary these camps should be accepted as permanent. The state accepted this after understanding that it would be impossible to stop people, women and children and men, from moving into urban centres and setting up these camps. It began to turn towards the Urban Foundation idea of providing serviced sites on which people could squat.

This victory carried a risk for resistance organisations. The policy aimed to undermine the struggle for decent housing for all by reconciling people to the idea of the permanence of the squatter camps. Instead of fighting for decent housing many organisations restricted themselves to the fight for improved squatter camps. When the ANC-led government after 1994 took over this policy even more resistance organisations accepted this kind of restriction. The struggle for decent housing for all was disastrously weakened. In terms of the number, strength and clarity of organisations involved in it, it has not yet recovered a fraction of what it had had a mere ten years before 1994.

One of the many reasons for this retreat lay in the political orientation of the resistance organisations. They supported the ANC despite the fact that the ANC supported the institutions and divisions responsible for homelessness – namely the capitalist state and market.

Meanwhile, in all of this, cages are seeking birds. Jails are going up to support the rule of law. The supporters of decent housing for all are going to jail. Would we choose between decent housing and rule of law, if we could? If we had to, which would we choose? The joke is that many have been forced, invited, asked to choose between indecent housing and the drool of law, and thanks to the largesse of ‘those in charge’, at the last minute were told they didn’t have to choose. They could have both. Lucky lucky birds.

Why must the squatter be absolved of criminality in order to be present and acceptable? Is the squatter criminal? This is a question, still, of locating the squatter’s other. Benjamin, in ‘Critique of Violence’ again, references criminals twice, in ways that suggest one possibility. For Benjamin, the threat to law is that of the great criminal. Consider this:

One might perhaps consider the surprising possibility that the law’s interest in a monopoly of violence vis-à-vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving the law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by its mere existence outside the law. The same may be more dramatically suggested if one reflects how often the figure of the ‘great’ criminal, however repellent his ends may have been, has aroused the secret admiration of the public. This cannot result from his deed, but only from the violence to which it bears witness. [5]

Further on, Benjamin elaborates, in a discussion of military violence and/as law:

In the great criminal this violence confronts the law with the threat of declaring a new law, a threat that even today, despite its impotence, in important instances horrifies the public as it did in primeval times. The state, however, fears this violence simply for its lawmaking character, being obliged to acknowledge it as lawmaking whenever external powers force it to concede them the right to conduct warfare, and classes the right to strike. [6]

The ‘great’ criminal, in the commission of violence, arouses the secret admiration of the public. Meanwhile, the great criminal, without any markings, horrifies the public. This public, the horrified one, is civil society, the web of publics, NGOs, and others. The state is not horrified but rather afraid of the establishment of new law, or better of new lawmaking.

By stripping the squatters of their capacity for great criminality, is Neuwirth normalizing them to the point of acceptability to civil society which will always redound to being shunted, or punted, aside or crushed by State? Market forces, yes, but also a redefinition of squatter’s camp, conceptually, has contributed to the diminution of the great criminal, the squatters’ camp, to petty non criminals. Illegal, yes; criminal, no.

What is the Other of squatting? Is it housing, simply? No. Is it permanent housing? No. Rather, gated communities, gated golf courses and country clubs. The housing crisis is one of mansions, not shacks. Where’s the Planet of Mansions? What Benjamin misses in the great criminal is her/his living with risk, choosing to live with risk, rather than accepting the terms of bare life, of precariousness. In some senses, squatters must appear as accidental, even if they have engaged in great planning. Whether invasions, as most famously in Brazil’s rural zones, or emergences, as in Istanbul, the squatter formally appears overnight. The mansion dweller appears after a flood of permits, plans, floor plans, conversations and meetings.

But is it the case that those who are formally covered by contracts and agreements are in fact less precarious, less bare in life, than squatters? Consider Mindy Thompson Fullilove’s descriptions, in Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It, of Black America, specifically Black United States, over the last couple decades. According to Fullilove, in the United States, “1,600 black neighborhoods were demolished by urban renewal. Urban renewal is the butterfly in Beijing, the unseen actor who caused the tempest”. [7] If urban renewal is the butterfly in Beijing, then blight is the monarch’s eye. As Fullilove notes, in the United States urban renewal as a phrase “is also used to refer to a program of the federal government, begun under the Housing Act of 1949, and modified under a number of later acts, the most important of which, the Housing Act of 1954, actually introduced the term into the law”. [8] And, right away, the key and the kicker is blight:

The land-claiming strategy embodied in the Housing Act of 1949 is fairly straightforward. An interested city had first to identify the ‘blighted’ areas that it wished to redo. Having defined ‘slum’ and ‘ghetto’, we must add this concept of blight, which was invented specifically for purposes of redoing aging downtown areas, and meant, quite simply, that buildings had lost their sparkle and their profit margin. Quite a remarkable array of buildings could fit under the definitions of blight that were enacted into law. [9]

Fullilove, near the end of her book, argues that “By ordering the landscape so that the poorest and most vulnerable are hidden out of sight, white America has ‘invisibilized’ (to invent a word) the problems of poverty and racial discrimination. This would seem to work, but, paradoxically, the creation of an apartheid system actually accelerates the spread of calamity, rather than reining it in.” [10]

The creation of an apartheid system actually accelerates the spread of calamity, rather than reining it in. Consider the conditions of inhabitants, protected workers, in Jonkershoek.

In March 2006, people gathered to protest evictions of farmworkers in the Jonkershoek Valley, a couple of kilometres outside of Stellenbosch. They were brought together by the Jonkershoek Crisis Committee, Women on Farms, and the Alliance of Land & Agrarian Reform Movements. Here’s how they described the situation in a press release:

These are the Facts:

Of the 13 farms, 7 currently have some form of eviction process in progress.

On 4 of these farms, farm worker households have already been partially or completely displaced from the farms. In some instances, these former farm worker houses have been converted into up market rental accommodation for University of Stellenbosch students and tourists.

On more than half of these farms, there are farm dwellers who have lived on these farms for more than 50 years.

Most farm workers on these farms were born in the Jonkershoek Valley.

If all of these processes follow its current course, we will essentially see the creation of a white valley of the rich, with a daily labour force commuting in.

What does this mean for Farm Worker Communities?

The Jonkershoek case clearly speaks to the inadequacy of the existing legal framework aimed at securing the labour and tenure rights of the rural poor. The end result will be the creation of a modern day apartheid enclave. We ask ourselves “How is this type of large-scale apartheid-style displacement of black people possible in a democratic non-racial South Africa in 2006?” It is as if we have gone back in time and the area declared a “black spot”. The end result of this current process will be the creation of a lily-white valley of rich land owners, with an army of casual black workers without job or tenure security, commuting on a daily basis to produce more of this wealth.

What does the JCC want?

We cannot allow our laws to be used to create modern-day apartheid enclaves. The solution in Jonkershoek needs to address both the right to decent secure housing and productive land of black residents (the original land owners) of the valley. The solution required, clearly, is a political one. South Africa has committed itself to the transformation of racialised land ownership patterns and we call on government to realise this commitment. To this end, we call for a political intervention from all three levels of government to immediately implement the resolution of the 2006 national land summit in implementing the moratorium on farm dweller evictions. [11]

Black spots? The creation of a lily-white valley of rich land owners linked to the establishment of an army of casual black workers without job or tenure security? Racialised land ownership? Sound familiar? By June 2006 farmworkers and their supporters had secured what amounts to a stay of execution.

But it’s not exactly an execution, is it? It’s more of a… a banning. According to Giorgio Agamben, in Homo Sacer: Sovereign Power and Bare Life:

If the exception is the structure of sovereignty, the sovereignty is not an exclusively political concept, an exclusively juridical category, a power external to law … or the supreme rule of the juridical order …: it is the originary structure in which law refers to life and includes it in itself by suspending it… We shall give the name ban… to this potentiality… of the law to maintain itself in its own privation, to apply in no longer applying. The relation of exception is a relation of ban. He who has been banned is not, in fact, simply set outside the law and made indifferent to it but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguished. It is literally not possible to say whether the one who has been banned is outside or inside the juridical order. . . . It is in this sense that that paradox of sovereignty can take the form ‘There is nothing outside the law.’ The originary relation of law to life is not application but Abandonment. [12]

Those who have been banned have been abandoned. In a world of law as abandonment, can we even conceive of a universal, decent, dignified discussion of the housing question?

What then is the dream if the nightmare is the ‘creation of a modern day apartheid enclave’ consisting of ‘a lily-white valley of rich land owners, with an army of casual black workers’? What is the solution if the problem is the “inadequacy of the existing legal framework aimed at securing the labour and tenure rights of the rural poor”? What is the next step when this ‘state of exception’, this capacity of the law to suspend its own application, this power of the rule of law’s agents to circumvent the law with impunity, becomes the norm?

The JCC believes the solution “needs to address both the right to decent secure housing and productive land of black residents (the original land owners) of the valley”. The activists clearly understand that for this to happen it is necessary to organise and fight against the white land owners and their allies in the local state. But what about the rule of law? Is it an ally or an enemy in this struggle?

The rule of law and all the institutions that support it, actually maintain the social set-up that makes evictions and casual labour possible. The protection of the farmer’s property and the police officer’s power are both built into the constitution. The problem of the poor in Jonkershoek is that they fall on the wrong side of the divide between those with property and those without, and those with state power and those without. Divisions that the law reflects, supports and promotes.

The poor fall on the wrong side of the property divide, and the Black, ‘(the original)’, fall on the wrong side of the racial divide. And the women? The women don’t fall anywhere, not even in the Jonkershoek Crisis Committee press release. The women hover and linger, phantoms among shadows between words: “farm worker households”, “farm dwellers”. In these phrases, women reside and are made to hide. The photograph accompanying the Mail and Guardian report on Jonkershoek, “The wars of the wine valleys”, tells the story. It shows an endangered worker’s family, and that family includes a wife, a woman who dwells on the farm, who works, both formally and informally, on the farm, and who counts for nothing, for less than nothing. It’s a familiar picture, you’ve seen it a thousand times.

This is not news, but it is the point. According to conservative calculations, between 1984 and 2004, in a mere 21 year period, “1.7 million people have been evicted from (South African) farms.” During that same period, “4.2 million people have been displaced from farms, with only 20% of those having left of their own volition”. [13] According to the report, Still Searching for Security: The Reality of Farm Dweller Evictions in South Africa, “The most significant trend … is that, in spite of the peaks and troughs seen in the data, there has been a steady and continuous flow of evictions since 1984 that is not abating, in spite of legislation meant to bolster the right of farm dwellers”. [14]In that 21 year period, 77% of evictees were women and children, with women constituting 28%. Men comprised 23% of the evictees. Perhaps this is because men constitute 77.4% of the main breadwinners among farmworkers? Perhaps. Or maybe, as the report suggests, “These results can in part be explained by the direct relationship between employment status and land tenure rights and the failure of land owners and the courts to recognise women and children as having their own independent tenure rights”. [15] Failure to recognise? We suggest that the rule of law is built on the refusal to recognise women and children as having their own independent tenure rights, and here we speak not only of land and housing. Who owns the land? According to Still Searching for Security, the farms from which people were evicted “were privately owned with the overwhelming majority of the owners being white”, almost 96%. [16] What percent of those white owners were male? The report does not say.

The failure to recognise women, here and now, is the key alibi of the rule of law. This failure to recognise women is the reason we specify people as women and children and men. Consider the history of protections for farm dwellers in the democratic South Africa. According, once more, to Still Searching, the history, schematically, is this: 1994, passing of the Restitution of Land Rights Act; 1995, publication of Labour Tenants Bill; 1996, promulgation of the Labour Tenants Act, LTA, and the Interim Protection of Informal Land Rights Act; 1997, publication of the tenure security Bill, promulgation of the Extension of Security of Tenure Act, ESTA. [17] ESTA is the jewel in the crown, the consummate and ultimate alibi. From the first democratic elections, in 1994, to December 1997, when ESTA was promulgated, the arc of protection fixed as its final point the claim of desiring to protect women on farms. You’ll hear this repeatedly. For example, according to the Mail and Guardian, in Jonkershoek, “Land activists say the Jonkershoek saga has again highlighted the inadequacies of the Extension of Security of Tenure Act (Esta) in halting evictions from farms, which cause unique hardship”. [18]

If, as Western Cape premier Ebrahim Rasool suggests, farm evictions are “the new ‘silent epidemic’”, [19] then ESTA is both symptom and pathogen. Of course, farm evictions are never silent. No eviction is ever silent. The epidemic is not silent; those who claim to want to eradicate it, they are the silent, and they are the silencers.

And that silence locates women. ESTA was meant to protect farm dwellers from unlawful eviction by breaking the stranglehold of “semi-feudal arrangements that still prevail on many South African farms” in which “the primary employment relationship is that between the farmer and the male ‘head’ of the farmworker household, with the household head’s spouse and other dependants deriving their right to reside on the farm through him”. [20] Men were primary occupiers, and women and children were secondary. ESTA counted men and women, and children, as identical, or at least equivalent. Court cases, most famously Conradie v Hanekom, in 1999, and Die Landbou Navorisingsraaad v Klaasen, in 2001, have seesawed back and forth on whether women are primary or secondary, whether they are present or absent, whether they will or they might one day some day… Analysts and activists debate ways of strengthening ESTA. Meanwhile, women, and children, not only remain the most vulnerable, they continue, unabated, to be evicted from farms. The women on farms don’t fall anywhere. They fall nowhere, which is to say, they fall everywhere. And when they go nowhere, everywhere, not of their own volition, they are “escorted” by police and soldiers. [21]

This does not mean it is wrong to fight for better laws and to claim what the poor should rightfully get under the rule of law. But it does mean that if we should confine our struggles to these goals we will never be able to remove the threat of evictions, casualisation and states of emergency. A dream of decent, secure housing for all requires that we also strive for the abolition of the institutions and constitutions that obstruct its realisation. The rule of law is a crucial one. Movements of the poor that support it may be neutralised in the same way as the struggle for housing in the 1980s in South Africa – through being co-opted into supporting institutions that support the very cause of our pain, the capitalist state and market.

The immediate outcome of an action against evictions may seem the same whether done by supporters or opponents of a capitalist constitution. It is not. The difference lies in the type of movement that will result from the action. A struggle supportive of the rule of law may stop a thousand evictions. But it closes down the possibility of the abolition of the causes of homelessness and slums. It leaves the power of the state and the market intact. And as long as that is the case the poor will always be in danger of having to become squatters or casuals. Such a movement are trapped into always winning stays of execution. The connections between the fights for a better or not worse position under capitalism, and the fight for its abolition, consist of the kinds of movements the fighters choose to be.

From the ancient world to the present, squatters have punctuated both rural and urban areas, and all zones between and beyond. During that long trek, neighbours and landlords and representatives of State have used the rule of law to justify or legitimate the eviction of those squatters. Likewise, during that period that could be said to characterize the period of recorded or written history, squatters have invoked the rule of law to justify or legitimate their right to stay, their right to the city, their right to usufruct, depending on the site. In some rare instances, squatters even used the rule of law to justify or legitimate resistance, even armed resistance, to eviction.

But Benjamin warns us that the point here is precisely not the rule of law as armature of legitimacy, but rather the rule of law as alibi for violence. From the perspective of housing, over the last 4000 years, to trace a brief and discrete arc, globally what has the rule of law accomplished? Proportionately, are more people on the planet living under an internationally, even globally, recognised rule of law? Yes. Proportionately, even in raw numbers, are more people on the planet living in decent housing? No. Is there any relationship whatsoever between these two assertions? Is it really a paradox? Hardly.

According to Agamben, writing of Benjamin’s essay ‘Critique of Violence’, “The aim of the essay is to ensure the possibility of a violence… that lies absolutely ‘outside’… and ‘beyond’… the law and that, as such, could shatter the dialectic between lawmaking violence and law-preserving violence… What the law can never tolerate – and what it feels as a threat with which it is impossible to come to terms – is the existence of a violence outside the law”. [22]

Housing is our example of the space of the dialectic between lawmaking violence and law-preserving violence. In that space, rule of law passes for the nominative when, actually, it modifies violence. The discussion of housing is always already a discussion of eviction and exclusion. This precedes the gated communities that dot the global landscape, but is also being reinvented in those enclaves. The violence outside the law is now construed, not for the first time and yet for the first time, as those who live beyond the gates, beyond the wall, beyond the border. The out-law has become anyone who tries to enter by means other than purchase. Citizenship in this instance becomes the authorization to commit violence against the violence outside. Where Agamben, in State of Exception, has written, “the state of exception has by now become the rule”, we would add that by now the rule has become the rule of law.

The question, then, is that of choosing housing by now, of choosing decent and universal housing by now. Immediately, with immediacy, and within the immediate. Within the by now, the only position that makes sense is that of abolition. But what would abolition be, other than a piper’s dream or a purist’s fantasy?

The abolition is a revolution freeing society from the power of the state and capital. Supporters of the rule of law are opponents of this revolution, which the rule of law explicitly forbids and actively undermines. They often say that the breakdown of the controlled violence of the rule of law can only result in the generalisation of uncontrolled violence – a free-for-all that is a disaster for the weak. And yes, that is a possibility. But it is not the only one. All of the things that opponents of this revolution like about capitalist society came into being through revolution. Revolution is not a break down of the rule of law that results in a free-for-all. It is a break through the rule of law that results in freedom, or at least greater freedom – a possibility created by people who fight for it.

A possibility created by the mere act of fighting for it. It is freedom, but what is the name of the possibility? Justice. This returns us to the by now. Commenting on Benjamin’s arguent, Jacques Derrida notes, in ‘Force of Law’:

Justice, however unpresentable it remains, does not wait. It is that which must not wait. To be direct, simple and brief, let us say this: a just decision is always required immediately, right away, as quickly as possible. It cannot provide itself with the infinite information and the unlimited knowledge of conditions, rules, or hypothetical imperatives that justify it. And even if it did give itself the time, all the time and all the necessary knowledge about the matter, well then, the moment of decision as such, what must be just, must always remain a finite moment of urgency and precipation… Even if time and prudence, the patience of knowledge and the mastery of conditions were hypothetically unlimited, the decision would be structurally finite, however late it came – a decision of urgency and precipitation, acting in the night of nonknowledge and nonrule. Not of the absence of rules and knowledge but of a reinstitution of rules that by definition is not preceded by any knowledge or guarantee as such. [23]

The revocation or the rejection of the rule of law is not a romantic invitation to absence, to unregulated license, but rather to an unprecedented site, one not authorized by knowledge or guarantee or settlement.

In 1986, in response to one more invasion by real estate developers and by real estate development, this time in the floodplains that were Arlandria, in the so called bedroom community of Alexandria, Virginia, African American and Latino/a low income residents said, “No more.” Insisting on their right to stay, community members formed the Tenants Support Committee, which waged a mighty campaign and either immediately or ultimately sort of won, securing court settlements that provided some with housing, for a while, others with cash settlements, others with the exhilarating memory of a mighty campaign, sort of won. In 1996, the tenants’ organisation, re-named the Tenants and Workers Support Committee, established, as an independent and autonomous entity, the Arlandria/Chirilagua Housing Cooperative, one of the largest low to moderate income tenants’ coops in the history of the United States. It was a great victory for those who benefited. For the rest? The hoped for spillover effect hardly happened. Developers continued to skyrocket housing prices, development continued to deplete affordable housing stock.

Ten years on, in 2006, the coop continues, loud and proud although with predictable internal conflicts. Meanwhile, Northern Virginia continues as well, a vicious battlefield of predatory real estate speculation, where the struggle for decent and affordable housing continues apace. The neighbourhood tenants’ organisation, now called the Tenants and Workers United, has become explicitly regional and majoritarian: along with its housing campaigns, it organises day labourers, childcare providers, taxi drivers, as well as residents in various areas. It conducts campaigns in the areas of health and education. Its membership now incorporates Latino/as from South America, Central America and the Caribbean, and Mexico, as well as those born in the United States. Its membership includes as well African Americans, Africans, South Asians, European Americans and the occasional East and Southeast Asian and Asian American. It serves the new social majority. Its current vision focuses on what its Executive Director, Jon Liss, refers to as the right to the city.

But the city extends for miles and miles and beyond. In fact, the city is precisely not a physical or administrative place, and it is certainly not this city as opposed to that city, that county, that province. It is City. As Patrick Chamoiseau notes near the end of his novel, Texaco, describing Martinique… and beyond: “The Creole language does not say la ville [“the city”], but rather, l’En-ville [“the In-city”]: Man ka désann an-vil, Misié sé an-vil, An-viol Fodfwans… [I am going down to city, He lives in city. This fellow is from City, from Fort-de-France]. City thus designates, not a clearly defined urban geography, but essentially a content and therefore a kind of enterprise. And here that enterprise was about living”. [24] The right to City is the universal right to immediate, decent living. In this sense, Arlandria/Chirilagua is not a bedroom community, nor even a living room community, but rather a living here now community, in which residents demand the right to decent and immediate living.

The right to City burns within the right to the city. They are both crucial, and the difference, the slippage, between them is the rule of law. The rule of law will happily negotiate with, and thereby determine, regulate, produce and stage the outcomes of, the right to the city campaign, whatever forms it might take. The rule of law cannot embrace any right to City, cannot countenance any insistence, any suggestion, that all have a right to be here, living here, now here. That space, that time, between the rule of law and the right to City is, precisely, the zone of the non-negotiable. Outside, Other, right here right now.

Meanwhile, from Washington to Cape Town, and beyond, every day we receive news of evictions: threatened, thwarted, postponed, imagined, accomplished. Outside of Cape Town, on the way to the airport, the N2 Gateway project looms large. Grey prison like blocks of housing that claim to improve the lot of shackdwellers. Housing. One bedroom flats for families and groups of six. Proposed new laws promise to evict streetdwellers from the streets. When the public spaces are enclosed, and then privatised, where must the residents of the public go? The space of Cape Town is being re-formulated, first, and re-formed, second.

Meanwhile, on the N2, on the farther outskirts of Cape Town, people are throwing stones at glass houses. Actually, they’re throwing rocks and bricks at passing cars, and their inhabitants, with often catastrophic results. In this period of rising resentment and commotion about inadequate and indecent housing, no one in the press comments on the irony of building materials being turned into lethal, if accidental, weapons.

The Mail and Guardian once again describes the Cape Flats as a war zone, as a frontier, as “the Wild West”, because motorists are being endangered.[25] Not because large numbers of people live in shacks, not because large numbers of people are under constant menace – of mass relocation, of water cut-offs, of electricity cut-offs, of TB, of HIV/AIDS, of an everyday comprised of a thousand acts of minor violence, of an end constituted by a single but particular act of violence. The Cape Times declares a crisis, a state of emergency, on the N2. [26] What is the maths of this crisis, what are the logics of the state of emergency?

We are not arguing that those who throw rocks and bricks at “passing cars”, at cars actually going somewhere, are partisans or insurgents or members of a multitude or mass of resistance. In fact, we make no claims whatsoever as to their intentions or persons. We do imagine, however, that they are not so far removed from the youths that circle Paris and erupt, in stone and brick throwing. Beneath the paving stones on the Cape Flats, there is no beach. There is only sand.

Justice does not wait. Housing to come is always already deferred. The to-come is always either forever postponed or, worse, messianic, only proven, only credible, in miracle. Material needs and demands cannot become miracles.

The protestors have the right of access to housing. They believe having this right should mean actually having a house. But capitalist society requires that you make a contribution to the profits of the bourgeoisie and submit to the power of the state in order to get a house. If you are not willing or able to do that you can only have the right to housing. You cannot have decent housing.

If you struggle for decent housing for all without having to enhance capitalist profit and power this very power obstructs you. Giving the power to make and implement laws that make criminals of some to a minority who have houses and wealth turns out to be a boulder in your path and a millstone around your neck. They use their power to criminalise and suppress you when you struggle for decent housing.

And in the very process of trying to get rid of these rocks and stones the elite will try to convince you that what you are fighting for is the rule of law, their rule, the rule of judges, police officers, state officials, not the rule of the poor, the women and children and men who are the majority. If you do not consciously and constantly resist this co-option your struggle will be contained and neutralised. You will end up fighting for some form of housing for some, which always means no housing for others. Instead of fighting for decent, dignified housing for all.


Daniel Moshenberg and Ronald Wesso, separately, have participated in anti-eviction and social housing campaigns and, together, have participated in anti-privatisation and worker support committee projects.

Endnotes

1. Robert Neuwirth, Shadow Cities: A Billion Squatters, a New Urban World (NY: Routledge, 2006), 241.

2. Neuwirth, Shadow Cities, 280.

3. Mike Davis, Planet of Slums (London: Verso, 2006); Neuwirth, Shadow Cities.

4. Walter Benjamin, ‘Critique of Violence’, in Walter Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings, ed. Peter Demetz (NY: Shocken, 1986), 295-296.

5. Benjamin, ‘Critique of Violence’, 281.

6. Benjamin, ‘Critique of Violence’, 283-284.

7. Mindy Thompson Fullilove, Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It (NY: One World/Ballantine, 2004), 20.

8. Fullilove, Root Shock, 57.

9. Fullilove, Root Shock, 58.

10. Fullilove, Root Shock, 238.

11. ‘Jonkershoek Crisis Committee Press Release’, Stellenbosch, 30 March, 2006.

12. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998), 28-29. (Agamben’s italics)

13. Marc Wegerith, Bev Russell & Irma Grundling, Still Searching for Security: The Reality of Farm Dweller Evictions in South Africa (Polokwane and Johannesburg: Nkuzi Development Association and Social Surveys, 2005), 42.

14. Wegerith, Still Searching for Security, 47.

15. Wegerith, Still Searching for Security, 49.

16. Wegerith, Still Searching for Security, 61-62.

17. Wegerith, Still Searching for Security, 46.

18. Yolandi Groenewald, ‘The wars of the wine valleys’, Mail & Guardian, 16 June, 2006.

19. Groenewald, ‘The wars of the wine valleys’.

20. Theunis Roux, ‘Pro-poor court, anti-poor outcomes: explaining the performance of the South African Land Claims Court’, South African Journal of Human Rights, 20, 4, 2004, 511 – 543 (525).

21. Wegerith, Still Searching for Security, 61.

22. Agamben, State of Exception, (Chicago: University of Chicago Press, 2005), 53.

23. Jacques Derrida, ‘Force of Law: The ‘Mystical Foundation of Authority’’, in Gil Anidjar, ed., Acts of Religion (NY: Routledge, 2002), 255.

24. Patrick Chamoiseau, Texaco, trans. Rose-Myriam Réjouis & Val Vinokurov, (NY: Vintage, 1998), 386.

25. Pearlie Joubert and Marianne Thamm, ‘Mother City’s No-go Zones’, Mail & Guardian, 28 June, 2006.

26. Heather Downie and Jessica Roberts, ‘Two More Highway Stonings Shock Cape Town’, Cape Times, 28 June, 2006, 1.

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