Contents   Abstract 1. Introduction 2. Theorising Power in Law and Literature 3. Contemporary Kenya 4. Historical Memory: Remembering (and Litigating ?) the Mau Mau Struggle 5. The Constitutional Review process, Ethnicity and Language Politics  Download

Keywords: Constitution, Culture, Kenya, Law, Literature, Memory, Ngugi wa Thiong'o

Editorial Note

This paper was presented at the 'Postcolonial Studies Workshop on the Oeuvre of Ngugi wa Thiong'o' at the University of Warwick in February 2003 on the occasion of Ngugi wa Thiong'o's stay as Visiting Fellow of the Humanities Research Centre, University of Warwick. The editors would like to thank Neil Lazarus and Benita Parry for permission to publish the proceedings of the workshop.

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This is a conference paper published on 20 January 2004.

Citation: Manji, A, 'Law, Literature and the Politics of Culture in Kenya', Law, Social Justice & Global Development Journal (LGD) 2003 (2), <http://elj.warwick.ac.uk/global/2003-2/manji.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_2/manji/>

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'No political power can survive satisfactorily by naked coercion. It will lose too much ideological credibility…in order to secure the consent of those it governs, it needs to know them more intimately than as a set of graphs or statistical tables. Since true authority involves the internalising of the law, it is on human subjectivity itself, in all its apparent freedom and privacy, that power seeks to impress itself. To govern successfully, it must therefore understand men and women in their secret desires and aversions…If it to regulate them from inside, it must also recognise them from inside. And no cognitive form is more adroit at mapping the complexities of the heart than artistic culture.'1

1. Introduction

On the occasion of Ngugi's visit to the University of Warwick, this paper explores what I perceive to be two central themes of Ngugi's writing. I speak not primarily as a student of literature or literary theory but as a Kenyan academic lawyer who has worked in the field of law and literature, and more broadly law and the politics of culture. The two themes of Ngugi's work which I would like to discuss are historical memory and the politics of language. These themes arise for me primarily, although not exclusively, from Ngugi's books 'The Trial of Dedan Kimathi', 'Ngaahika Ndeenda' and 'Decolonising the Mind'.

Taking its cue from the observation that 'culture…comes to prominence intellectually when it becomes a force to be reckoned with politically'2 this paper attempts to move beyond the law and literature movement's fixation with the literary text. It is concerned with a broader field of investigation, that of law and cultural politics. It seeks to explore how the cultural critic in contemporary Africa might transcend prevailing, but impoverished, discourses of culture as ethnicity and racial identity.

2. Theorising Power in Law and Literature

In an overview of the intellectual history of law and literature since its foundation in the early 1970s, Minda noted that the movement has become remarkably diverse. In its early days on legal curricula, it was concerned exclusively with law-in-literature and explored 'how the stories in the classics of Western literature might offer lawyers and judges important lessons about the nature of law.'3 In the late 1970s and 1980s, a second trend of scholarship began to manifest itself and was given the label of 'law-as-literature'. It was concerned with 'reading and studying law as if it were a special 'genre' of literature to be interpreted like any story… law and literature scholars explored the meaning of law's language as a cultural and literary artefact.'4

The merits of law and literature have been vigorously contested since it came into existence as a distinct academic field. The exchange between Stanley Fish and Judge Richard Posner sums up the main differences in approach. Posner has argued that 'after a century as an autonomous discipline, academic law in America is busily ransacking the social sciences for insights and approaches with which to enrich our understanding of the legal system' but that it is 'a great false hope' that literary theory will change the way that lawyers think.'5

Fish brings a number of linguistic and philosophical arguments to bear in making the case for law and literature, the most powerful, and in the context of this paper, the most relevant of which lies in his elucidation of Posner's notion of power. Fish points out that Posner distinguishes between legal and literary interpretation by invoking the notion of power. Posner's view is that, in contrast to lawyers and judges, literary critics operate in a context in which it does not matter if their 'interpretative labors' are not constrained, for their interpretations have minimal consequences.

'The critic who interprets an ambiguous work of literature is not imposing his view on anyone else…the court that interprets an ambiguous provision…is imposing its view on the rest of society, often with far-reaching practical consequences.'6

The question of consequentiality is central to the differing approaches taken by, on the one hand, the advocates of law and literature and, on the other hand, its critics. Nonetheless, it is an issue which Fish glosses over:

'For the moment I am less interested in challenging the distinction between legal and literary consequentiality that in asking for what reason - in the service of what agenda - Posner makes it…'7

Whilst Fish goes on to present a convincing and thorough explanation of Posner's agenda, this is done at the expense of pursuing the idea of consequentiality. The focus is on Posner's interest in diminishing the possibilities of law and literature rather than on grappling with the notions of power and consequence. This defensive posture is common in the debates surrounding law and literature and at times dominates to the exclusion of explanatory writing. The proponents of law and literature perceive themselves to be under siege; in the case of Posner's onslaught, for example, it is said to be orchestrated by those who embrace a law and economics approach. This defensive posture has characterised law and literature's combative infancy.

This failure to counter Posner's charge that literary interpretation is a powerless pastime has led to a lack of theorisation of the notion of power in law and literature. In part, the failure to provide an adequate account of power in the task of literary interpretation comes from an unduly narrow conception of the literary which the law and literature movement has adopted. As the label 'law and literature' indicates, the movement has been influenced by a 20th century conception of the function of literary criticism. As Eagleton has pointed out:

'In the eighteenth century…criticism concerned cultural politics; in the nineteenth century its preoccupation was public morality; in our own century it is a matter of 'literature'.'8

Whilst it may be the case that a literary critic who is engaged in interpreting Wordsworth or Yeats is powerless (and this is arguable) it would be more difficult for Posner to dismiss a widely drawn notion of 'interpretative labor' which is concerned not just with the literary text but with the entire field of cultural politics. By severing the connection between literary theory (and the interpretative labours it requires) and the literary text, it is possible to answer the charge that literary criticism is and can afford to be an unconstrained, because powerless, task.

Weisberg has argued that the law and literature enterprise is sufficiently broad to encompass any number of different literary perspectives9and Minda that 'there should be ample room under the law and literature umbrella for law-as-literature translations'.10The aim of this paper is to explore how the idea of law and literature might be reconfigured. Embracing law-as-literature's refusal to privilege the literary text, this paper moves beyond that position to investigate the interaction of law and cultural politics. In so doing, it hopes to rescue the law and literature enterprise from the combative debates in which is has become mired. If it is to regarded as anything other than a powerless pursuit, lawyers who have embraced literary criticism must confront this attribution head on. This means doing more than revealing the hidden agendas of the movement's detractors. The idea that the interpretative work of literary theorists has no practical consequences may be countered by embracing a mode of literary criticism which is politically and ethically engaged. This might be done by rethinking, as Eagleton has done, the function of modern criticism and the range of practices to which it might be applied:

'To claim that 'literary theory' does not necessarily derive its raison d'etre from the literary text is not to fall into theoreticism; it is to recognise that what practical effects it might have will be diffused over a much broader field of signifying practice.'11

As Eagleton has pointed out, in the 18th and 19th centuries 'to be a literary critic was … no politically inconsiderable role. It was certainly not for Johnson, Hazlitt or Taine.'12Were law and literature to rediscover a 'substantive social function'13for criticism, it would insulate itself form the accusation of powerlessness.

What are the implications of this new approach in the context of postcolonial Africa? Elsewhere, I have employed the insights of traditional law and literature to investigate Chinua Achebe's Arrow of God.14 In that paper I adopted a law-in-literature approach and argued that African literature prefigures many of the issues engaging critics on the wider social scientific terrain. In the social sciences, this is represented by those who problematise law from a postmodern or legal pluralist perspective. In particular, Achebe's self-imposed task of demythologising parallels that of theorists such as Eric Hobsbawm, Terence Ranger, Martin Chanock and Peter Fitzpatrick. Such theorists have drawn our attention to the dangers involved in the use of law in the construction of community, identity or tradition. Through a study of Arrow of God, the paper discussed Achebe's treatment of the administrative and political power exercised by the colonial state and showed that the novel's focus is not simply on the form of power vested in chiefs by the colonial state but also on the epistemic or discursive authority exercised by the colonial administration. The task of demythologising law and colonialism has been undertaken by lawyers, social scientists and novelists alike.

The traditional law and literature approach, by requiring the study of literary texts, restrained an investigation of the range of ideological practices which function to initiate, augment or restrain political development in African societies.

3. Contemporary Kenya

Turning to Ngugi's writing, I would like to address the two themes identified above - historical memory and the politics of language - in the context of recent political developments in Kenya. In December of last year, Presidential and Parliamentary elections brought an end to the rule of KANU (Kenya African National Congress). This marked the end for Kenyans of their fraught relationship with a party bequeathed to them at the end of British colonial rule in 1963. Kenya's new government has been forged out of a coalition of parties going under the title National Rainbow Coalition (NARC).

The rejection of KANU at the polls was the beginning of Kenya's attempt to deal, at long last, with its colonial past. A number of recent developments suggest that this is an emerging theme in Kenyan political and social life. These include signals from the new government that it will consider erecting statues in memory of Mau Mau fighters, initiatives to found a museum to honour Dedan Kimathi in Nyeri and the news that a group of Mau Mau veterans are planning to use the British government for human rights abuses suffered during the uprising. All this takes place against a background of constitutional change and in the face of the vexed question of what place ethnicity and culture should have in the constitution.

4. Historical Memory: Remembering (and Litigating?) the Mau Mau Struggle

In both its pre-election campaigns and since it came to power, the new Narc government has signalled that it will consider erecting statues to the Mau Mau fighters. It thus appears that Kenyans have come at long last to heed Ali Mazrui's warning15, which is endorsed by the foremost historians of the Mau Mau Berman and Lonsdale16, that selective amnesia is not acceptable. Dealing with the historical past is certainly an identifiable theme in recent Kenyan political and intellectual discourse. There have been calls for the setting up of a truth and reconciliation commission, on the South African model, to address wrongs committed against government opponents and critics since independence.

Dealing with the past will entail reopening the Mau Mau struggle, debating its role in the achievement of independence and confronting the human rights abuses which were committed against it but also crucially by the Mau Mau against civilians. It remains to be seen whether bringing to the national mind the Mau Mau struggle will reinforce, rather than challenge, the wider trend in Kenyan political and social life which celebrates fragmented ethnic identity. Mzee Jomo Kenyatta underplayed the Mau Mau struggle in his attempt to promote a unified developmental state. The present day rise of the Mungiki phenomenon is evidence that struggles over ethnicity remain central to the Kenyan state even under a new political dispensation.

5. The Constitutional Review Process, Ethnicity and Language Politics

The Constitutional Review Commission is bound, by the pre-determined goals of the Constitution laid before it, to address the question of ethnicity and culture in any new document it might present to parliament. Specifically, the pre-determined goals require that ethnic and communal identities must be respected. Section 3(c) of the Constitution of Kenya Review Act stipulates that the object and purpose of the review is to secure provisions in the new constitution which respect ethnic and regional diversity and communal rights including the right to organise and participate in cultural activities. As the Chairman of the Constitutional Review Commission, Professor Yash Ghai, has pointed out, this introduces a post-modern notion into the Constitution, replacing the idea of national unity with one of particularised identity by employing such phrases as 'cultural practice' and 'cultural identity'.

Ngugi's well-known decision to abandon the English language for Kikuyu - and the contribution he has made to debating the politics of language -prefigured many of Kenya's contemporary struggles over culture which have been played out in what Eagleton describes as 'that whole intermediary space which is the material apparatuses of cultural production, all the way from theatres to printing presses …' 17The Kenyan debate over radio broadcasting is a case in point. In August 2000, the then President of Kenya, Daniel Arap Moi, announced that radio stations broadcasting in vernacular languages throughout the country would be banned. The Attorney General and the Minister for Transport, Information and Broadcasting were instructed to draft a law making it illegal to broadcast in any language other than Kiswahili and English. Commentators immediately identified the move as an assault on the Kikuyu language radio station Kameme FM.

The debate over the acceptability of language in radio broadcasting is located at the intersection of culture and the market. The demands of particular ethnic groups for minority language radio are able to be fulfilled in the new era of the privatisation of broadcasting technology and the liberalisation of channels. The development of vernacular radio is on a continuum with the long-running tendency in Kenyan public life towards ethnic politics. It has after all not been long since the triumphant reaffirmation of ethnic identity known as the Otieno law case 18.

Endnotes

1. Eagleton, T (2000) The Idea of Culture (Oxford: Blackwell), p 50.
2. Eagleton, T (2000) The Idea of Culture (Oxford: Blackwell), p 50.
3. Minda, G (1997) 'Law and Literature at Century's End' Cardozo Studies in Law and Literature 9, pp 245-258, 245.
4. Minda, G, op cit, p 245.
5. Posner, R (1986) 'Law and Literature: A Relation Reargued' Virginia Law Review 72.
6. Posner, R op cit, p 1373.
7. Fish, S (1988) 'Don't Know Much About the Middle Ages: Posner on Law and Literature' Yale Journal of Law and the Humanities 1.
8. Eagleton, T (1997) The Function of Criticism (London: Verso), p 107.
9.Weisberg, R H (1988) 'Family Feud: A response to Robert H Weisberg on Law and Literature' Yale Journal of Law and the Humanities 1.
10. Minda, G, op cit, p 246.
11. Eagleton, T (1997) The Function of Criticism (London: Verso), p 95.
12. Eagleton, T (2000) The Idea of Culture (Oxford: Blackwell), p 39.
13. Eagleton, T (1997) The Function of Criticism (London: Verso), p 8.
14. Manji, A (2000) ''Like a Mask Dancing': Law and Colonialism in Chinua Achebe's Arrow of God', Journal of Law and Society 27(4), pp 626-642.
15. Mazrui, A A (1969) Violence and Thought (London and Harlow: Longmans).
16. Berman, B and Lonsdale, J (1992) Unhappy Valley, especially Volume II 'Violence and Ethnicity' (Oxford: James Currey).
17. Eagleton, T (1996) 'Introduction', in Eagleton, T and Milne, D (eds) Marxist Literary Theory (Oxford: Blackwell), p 13.
18. See Manji, A (2002) 'Of the Laws of Kenya and Burials and All That' Law and Literature 14(3), pp 436-488.