Constituting Nationality:
South Africa in the Fold
of the "Interim"


Nicholas Dawes

University of Wisconsin

Copyright (c) 1997 by Nicholas Dawes, all rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. Copyright law, and it may be archived and redistributed in electronic form, provided that the editors are notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the notification of the journal and consent of the author.

We must therefore ensure that memory is victorious.
	--Kader Asmal

I would prefer ashes . . . --Jacques Derrida

  1. The settlement which provided for South Africa to hold its first non-racial general elections on April 27th, 1994, bequeathed upon the country's parliament a constitutional situation marked in rather dramatic and complex ways by the set of negotiations that enabled the ruling Nationalist Party to hand over power in a relatively peaceful manner (albeit not as peaceful as international commentators have tended to suggest). Not surprisingly, the future of apartheid functionaries, from death squad members and spies to paper pushers, was a crucial concern of state representatives at the constitutional talks; for them the possibility of Nuremberg-style trials (and sentences) loomed large. This "question of justice" was no less important to the ANC, its coalition partners and other sectors of the liberation movement anxious that there should be some legal remedy for the atrocities carried out under apartheid. The Truth and Reconciliation Commission, which is currently conducting hearings across South Africa, is the strange legal entity produced by compromise around the problem of "gross violations of human rights" during negotiations toward the "Interim Constitution" enacted in 1993. The Commission is a complex and fascinating structure, and is no doubt available for a similarly complex series of critical interrogations. Unfortunately, very few of those undertaken to date have been interested in considering Desmond Tutu's structure and its procedures otherwise than in the terms held out by an orthodox discourse on nation, law, and right.[1]

  2. What I will attempt to do in this paper is find the ways in which the legal rhetoric of Truth and Reconciliation founders in the very act of foundation that it is engaged in, to bring the constitution of a "new" South African institution up against the limit that it proposes to secure itself in. To this end I will undertake a reading of the act which establishes the Commission, as well as an early speech by a senior ANC leader which, it seems to me, establishes the terms in which its work continues to be understood. Where the existence of an ineluctable relationship between the truth of an abominable past and the possibility of a properly democratic future is enunciated, the legislative fiat that brings nations into being comes right up against the atrocious possibility that attends the gift of law. If this is the case, it will be necessary for anyone who is not content simply to tread water in the ditch of some via negativa, to think the place of the Truth and Reconciliation Commission in South Africa again (and again). It is to the melancholy turning of that again that this essay wants to gesture.

  3. My first epigraph is from Kader Asmal's inaugural lecture as Professor of Human Rights Law at the University of the Western Cape, South Africa, in May 1992. In the strangely contextless context of the epigraph it is a difficult enough sentence to grasp; appearing as it does a few lines from the end of a paper entitled "Victims, Survivors and Citizens--Human Rights, Reparations and Reconciliation," it seems at once to be full of weighty significances, and all but completely meaningless. Certainly it helps to know that Asmal is referring to the victory of memory over forgetting in a battle which, in his account, is a crucial site of the struggle for human rights; perhaps it also helps to know that "we must therefore ensure" is one of his favourite constructions (foreshadowing the ministerial career to come?). Nonetheless, the sentence stands alone, ultimate imperative of an address far more politico-legislative than academic or jurisprudential. I want to begin with this speech (given in May of 1992, published in 1994), rather than act 34 of 1995, the "Promotion of National Unity and Reconciliation Act," [2] less because of any temporal priority than because, in all of its considerable confusion, it lays out very clearly the theory of history and nationhood that will be the basis of the act. It also seems to hold the door for another approach ever so slightly open, and it is something like such an opening that I want to pursue.

  4. Asmal begins with that object over which the contending propositions of the rest of his address will struggle, the damaged body of the South African polity. "We live," he writes, "in a wounded, divided and deeply scarred society" (491), and his discourse is above all an effort to stipulate the conditions under which that body may be healed and inoculated against further harm. Two key propositions seem to converge to that end; and while I hope to show that their intrication is considerable, I want for the meanwhile to impose a separation.

  5. First there emerges a need for the reconstitution of a certain constitutionalism: a body of positive law with powerful and evident links to the natural which will found a new community. Second is a fear that this alone will not be adequate to secure the wholeness of the new body, and a contention that a proper knowledge of, and accounting for, the "structured sinfulness" (Alan Boesak, qtd. in Asmal 493) of apartheid South Africa is needed to found its opposite.

  6. Asmal argues that the struggles against colonial occupation and racism have produced "a vision of human relations that is the antithesis of the apartheid heritage" (491; a list of human rights treaties ratified by South Africa can be found at ). The ANC's 1943 bill of rights, the 1965 International Convention on the Elimination of all Forms of Racial Discrimination and, most particularly, the African Charter on Human and People's Rights, form part of what he is pleased to call, in language that is surely not mere ornamentation (he uses it repeatedly) "the legal and political patrimony of humanity" (492; emphasis mine). Indeed the last of these documents not only insists or legislates, as most articles of positive law do, but:
    shows that humanity is not solely composed of selfish, self-centred individuals [and] displays a communitarian tradition of social solidarity of rights and duties which the Eurocentric tradition of human rights marginalises, if it does not actually oppose. (492; emphasis mine)
    This is very moment of slippage between the natural state of the world and positive law, the invocation, that is, of a natural law. When Asmal speaks, then, of a new "social contract based on law," he describes the gift of our revolutionary fathers and the promise of a moral community to come which we offer up in exchange: "the tyranny of the minority is to be replaced by a constitutional order which accommodates, recognizes and includes the political, cultural and religious mosaic of traditions in our country" (492). The interim constitution--any constitution--is thus the promise of an ideality to come that would justify the rights culture that we inherit from our forebears. It would take another paper to unpick the character of that patrimony, not to mention the impossible gift of so many lives, or years in prison, but a ghost of the formidable complex formed by law and paternity will haunt the closing circle of the new state as it is imagined here.

    It is at just this point that the anxious question intrudes, and begins to repeat itself: I therefore raise the query as to whether this is an adequate or satisfactory response to the pathology of apartheid and whether it is a satisfactory basis to build for the future. Should we not be looking at community expectations and . . . needs, examining what is . . . required of the law and in particular, how to deal with the humiliation, brutality, deprivation and degradation of the past? (Asmal 492; my emphasis)
    Is a "formal commitment to constitutionalism" (Asmal 492) adequate to the building of a whole society, and the healing of the scarred body politic? And just as insistently, is it commensurate with the freedom bequeathed upon the people by those who suffered during the struggle (I will return to the problem raised by the fact the "the people" were also agents of the struggle)?
    Even lawyers must recognize that history cannot simply be sealed off when a chapter such as the one we are leaving comes to an end, and certainly not when to do so would be to ignore the suffering and injustice done to millions. (Asmal 492)

  7. Indeed, of the ten reasons Asmal gives for keeping the "book" or at least "chapter" of the past open, at least four are reformulations of the need for a "catharsis," to "stop the running wound" of history. The rest of the list stresses the importance of an understanding of the injustice of the past if we are to build a "healed country" and thus receive the "moral and social dividend for the future"(Asmal 495-97) which will accrue to an investment of effort in such understanding. In almost every example, however, a considerable difficulty arises: are we concerned here with an adequate response to indescribable atrocity or are we rather concerned with the implications of such atrocity for the law which would found a different social order?
    [Another] reason for accounting with the past is the necessity to avoid the revenge factor. . . . [I]n other . . . countries there have been . . . traumatising acts of . . . revenge aimed at people at the margins of society and power while the real culprits have escaped. . . . Time and time again the apartheid state has bestowed immunities . . . on police and military action, and in so doing has debased the coinage of criminal law and encouraged state lawlessness. This can only create a precedent for future crimes. (Asmal 495-97)

  8. What emerges from this speech, and the act to which I will shortly be turning, is that both what Asmal calls "the truth and justice argument" and the "nation building" argument (496) are ultimately concerned to secure the wholeness and self-identity of the constitutional state (whether the latter is conceived of as a transcendental good or a response to the gift of a rights culture is another question). The history of apartheid South Africa is thus primarily to be conceived of as a narrative foundation for the shared national identity which will secure a just constitutional, or legal future.

    *     *     *

  9. The preamble to the "Promotion of National Unity and Reconciliation Act, 1995" seems to me to confirm this. It is worth quoting in full:

    Since the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) [The South African Constitution is on line at ] provides an historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence for all South Africans, irrespective of colour, race, class, belief or sex;

    And since it is deemed necessary to establish the truth in relation to past events as well as the motives for and circumstances in which gross violations of human rights have occurred, and to make the findings known in order to prevent a repetition of such acts in future;

    And since the Constitution states that the pursuit of national unity, the well being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society;

    And since the Constitution states that there is a need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization;

    And since the Constitution states that in order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the political conflicts of the past;

    And since the Constitution provides that Parliament shall under the Constitution adopt a law which determines a firm cut-off date, which shall be a date after 8 October 1990 and before the cut-off date envisaged by the Constitution and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with;

    Be it therefore enacted by the Parliament of the Republic of South Africa as follows . . .

  10. As happy as I would be to let my added emphases convey the argument here, I will reiterate that it is the Constitution (a proper name) that provides the ultimate ground and justification for the discussion of "gross violations of human rights." Furthermore it is the groundless ground of the Constitution and the society it enacts that is thus defended. Were human rights once again to be grossly violated (as they are every day in KwaZulu, Natal and elsewhere) the coinage of the Constitution, and thus all law, would be debased. As Jacques Derrida reads Walter Benjamin's Interesse des Rechts an der Monopolisuerirung der Gewalt :
    Law has an "interest in a monopoly of violence." This monopoly doesn't strive to protect any given just and legal ends, but law itself. This seems like a tautological triviality. But isn't tautology the phenomenal structure of a certain violence in the law which lays itself down, by decreeing to be violent, this time in the senses of an outlaw, anyone who does not recognize it? Performative tautology or a priori synthesis, which structures any foundation of the law upon which one performatively produces the conventions that guarantee the validity of the performative, thanks to which one gives oneself the means to distinguish between legal and illegal violence. (33)
    I do not invoke Derrida in a plea for the gentle treatment of those who, like Magnus Malan and Krappies Engelbrecht, gave high-level orders, or of people like Spyker van Wyk who actually "applied" hose pipes, electrodes and wet canvas hoods. [Amnesty applications and decisions are at ] Rather my effort is to locate the law's relative unconcern with the content of those acts, and its constitutive concern with their relation to the institution of the law.

    *     *     *

  11. "We must therefore ensure that memory is victorious. . . ." Perhaps we can now understand the "therefore" of Asmal's strange sentence a little better. The deployment of the first person plural pronoun here, however, should attract our attention. It stands out not least because it is very difficult, if possible, to decide whether it is a kind of royal or sovereign we, referring to the legislature, and perhaps the community of political and legal luminaries listening to the address (many of whom will soon be members of the legislature), or whether it includes all the people. This is not an accident; it points to the theory of the state that underlies the texts discussed so far. "We," I would argue, is the "we" of the general will, expressed by the sovereign as the legislating principle of that will. The sovereign is the means of passage from the people as citizens through the capacity of the state to "ensure," that is to say through the law, back to the people as subjects. Thus the royal "we" and the all-inclusive "we the people" are able to become one, despite the fact that neither on its own is one, or self-identical.

  12. The general will is for this "victory of memory" which we still understand so poorly, and the law must be put in place to ensure that victory. As Geoffrey Bennington comments:
    [I]t seems possible to describe the general will as the sending of a letter (a circular letter) by the citizen as a member of the sovereign to that "same" citizen as subject. The citizen does not pre-exist the sending of the letter, but is created by it: "sovereign" and "subject" are Rousseau's names for the sender and addressee of the legislative letter, and citizen the name which implies that the structure of the law allows the identity of sender and addressee to be asserted.[3]
    Under apartheid of course, subject and citizen cease to be identical. The subject is consigned to a stateless, rightless existence as a mere body severed from its necessary (humanising?) connection with citizenship and thus mutilated. Forced beyond the pale of white South Africa to a Bantustan which no force of natural law will constitute, or can constitute as sovereign state,[4] the black body politic cannot send itself the letter of the (properly constituted) law which will reinstate the proper subject/citizen identity.

  13. In his "Speech from the Dock," Nelson Mandela turned the trial around and became the prosecutor of the apartheid state [The ANC's 'Mandela Site' is at; see also 'The Long Walk to Freedom' at]. Among other things, he was angered by the failure of J.G. Strjidom to reply to, or even acknowledge, Albert Luthuli's letter requesting a consultation:
    In a civilized country one would be outraged by the failure of the head of government even to acknowledge receipt of a letter, or to consider such a reasonable request put to him by a broadly representative collection of important personalities and leaders of the most important community in the country. Once again, Government standards in dealing with my people fall below what the civilized world would expect. (Mandela 145)
    The state is then not only pre-legal, but, by reference to the rest of the world, illegal. What "the civilized world would expect," then, is that the black man, like any other citizen, should be able to send himself a letter through the postal network of politics, a circular letter which will return as an acknowledgement of his desire. In the sovereign state that desire is called the general will. The black person, then, before and beyond the creation of the homelands, cannot become a citizen because he or she is not part of the postal network of the nation. "We do not politik," wrote Montesquieu in his treatise on politics, "with the Mongol" (qtd. Bennington 245) because, as Bennington sees it, he is outside of our postal network. Strijdom's silence is an eloquent ventriloquism.

  14. Much like Rousseau's Project for a Constitution of Corsica, Asmal's constitutionalism seems to suggest that all will be well if the proper connection between the natural law of equality and the positive law of the land is restored. As we have seen, the vehemence of his protests that such a move is not adequate precisely reinforces the argument that it is not only adequate, but indeed the only telos of his efforts.

  15. As Bennington points out, however, the very fact that Rousseau's theories exist indicates that they are at best a "radical fiction" (249) invented to found a state in true correspondence with the natural order; a state which would thus never again be true. The legislative letter does not always arrive at its destination. Politics and law (now positive even where it is called natural) have been separated from the "natural network" where the sovereign, by virtue of the simple fact that it is, "is always what it should be," and where "the general will is always right." Were the correspondence to the natural complete there would be no politics, the letter of the law would always already have arrived within an absolutely closed circuit of identity, or auto-nomination. "The end of politics" as Rousseau and our constitutionalists understand it, "is the end of politics" (Bennington 248). This is the point toward which the desire of the act tends; the whole society of its imagination could also be called the end of politics. We should not be surprised, then, if a certain similarity is expressed between the tenor of these propositions, emanating as they do from a left-wing liberation movement (both before and after negotiation with the right) and the decidedly reactionary announcement of Francis Fukuyama et al. that the globalisation of bourgeois liberal democracy heralds the end of history.

  16. The failure of the state to enclose subject, sovereign and citizen in a circle of perfect identity is, we are reminded by way of Derrida, "a necessary possibility" (Bennington 249) which structures the relationship between law and nature from within, rather than "a ditch or external place of perdition" (Derrida Limited 17)--an outside-the-Constitution into which it might fall. This needs to be understood if the analysis I have offered here is to be sustainable at all.

  17. The last word of my first epigraph is perhaps the most strange. The notion of memory "victorious," of memory winning out seems to me a difficult one to tease apart, and the puzzlement with which I respond to Asmal's ringing performative is a mark of that difficulty. Having spent some time looking at why he in 1992, and the Government of National Unity in 1995, think a memory of the past is so important, I want to open something of a parenthesis to my discussion of this single sentence to ask what sense of coherence (or of victory if you will) it is possible to extract from the kind of memory we call historical narrative, and, by quick slippage, the "radical fiction" of the constitution.

  18. It has become commonplace for many of those critics whose affiliations we, in our uncomfortable way, call postcolonial, to assert that the emergent nationhood of recently decolonized territories is more or less problematically intricated with the dynamics of narration. The appeal of this position, as Bennington points out, is obvious enough: "we undoubtedly find narration and the centre of nation: stories of national origins, myths of founding fathers, genealogies of heroes. At the origin of nation we find a story of the nation's origin" (230). As he goes on to suggest, however, the very ease of such analyses should inspire our suspicion: "our own drive to find the centre and the origin has created its own myth of the origin, namely that the origin is the myth" (Bennington 230).

  19. Such an approach is to be found across a considerable range of writings on national identity, and it is the shared proposition of many otherwise agonistic theoretical and ideological articulations. As Frantz Fanon points out in the essay "On National Culture," the native intellectual all too often returns home from the metropolitan academy fired by a desire to replace the colonial fiction of a depthless barbarian past with a recovered myth of the nation's full and validating history. Fanon wrote against the often less-than-reflexive narratives of nationalist history as well as the essentializing topoi of Négritude and the hazy prelapsarian imagery of black consciousness idealizations of the African past. However uneasy many critics may be today with his existentialism, and his apparent entrapment in a psychoanalytically inflected Hegelianism, it is worthwhile to recall his formulation of these problems, particularly if we are to theorize the ways in which South Africa deals with its past.

  20. More recently, popular constructions of the "value" of narrativity for historiography and, as a corollary, for what one might call the "nationness" or nationality of regions, seem to me to display an idealist bent not dissimilar from the one which Fanon is concerned to critique, albeit in forms more theoretically dense and (putatively) self-conscious. I will not run a critique of this work here. Debates around Hayden White and Paul Ricouer and well known and well worn. Instead I will simply pose an alternative that may be more productive when brought to bear on the issues that concern me.

    *     *     *

  21. Perhaps the most immediately obvious critical response to those hermeneutic historiographies which insist on the "grasping" power of emplotment as the revelatory possibility of human being, involves dismissing them as a violent totalization of the monstrous hybridity that, to use Paul Ricoeuer's term, is "lived" time. In one form such criticism might insist on national history as pure carnival, a kind of postmodern sublime which simply overflows the boundaries of narrative. It will immediately be clear, however, that this approach leaves the ideal structure, or "concept" character, of narrative intact while simply posing "the people's" history as its excessive other--in a way equally idealised and bound within a conceptuality of excess. Some writers, however, have articulated complex strategies for theorising a relationship between nation and narration which, while skirting the desire to extract a figure of the nation from the succession of events which befall it, are able to think a certain narrativity at work in the "liminality of cultural modernity" (Bhabha 230).

  22. One way of doing this is to imagine a radical splitting and doubling in the rhetorical instantiation of the image of the nation as narration. For Homi Bhabha this fracture occurs around the liminal position of "the people" as the objects of dialectical, reified national history, and the occupants of a present that he, following Fanon, calls a "zone of occult instability" (152).
    The people are not simply historical events or parts of a patriotic body politic. They are also a complex rhetorical strategy of social reference: their claim to be representative provokes a crisis of signification and discursive address. We then have a contested conceptual territory where the nation's people must be thought in double-time; the people are the historical objects of a nationalist pedagogy, giving the discourse an authority that is based on the pre-given or constituted historical origin in the past; the people are also the "subjects" of a process of signification that must erase any prior or originary presence of the nation-people to demonstrate the prodigious, living principles of the people as contemporaneity: as that sign of the present through which national life is redeemed and iterated as a reproductive process. (Bhabha 145)

  23. Precisely this difficulty has already arisen for my reading of Asmal. My brief gloss on the gift of a rights culture is troubled by the doubleness of the people: subjects of the struggle they are necessarily also objects of the history that institutes Asmal's new "moral and social order," or the act's "future founded on the recognition of human rights, democracy and peaceful coexistence." At the same time, but in a different time, they are inhabitants of a present which is far from displaying the unity in diversity of his "political, cultural and religious mosaic of traditions" (492). The "present" of course is not to be thought of as moment of crystalline ontological purity. Rather it is "a certain uncertain time" to which "the people" are "just now giving shape," where identity as such is continually lost (or eluded) by the processes through which cultural identity is signified. In the shifting interstices of difference--of sexuality, class, gender, race and so on en abime--the subject is never simply one nor the other, but rather a residue of continually shifting categories. This is what Bhabha means when, in a rather baffling passage, he refers to the "temporality of the throw [here Heiddeger intrudes uncannily on the travelling Barthes whom Bhabha is glossing] that iteratively (re)turns the subject as a moment of conclusion and control": the acting out--writing--of highly contingent and unstable positions that are already (un)written opens the double time of the subject always "out of place" (196).

  24. Asmal's mosaic and, on the other hand, Desmond Tutu's rainbow [a real audio or truespeak version of an interview with Tutu is at] give us to ourselves as plural subjects of a unitary state because:
    the political unity of the nation consists in a continual displacement of the anxiety of its irredeemably plural modern space--representing the nation's modern territoriality is turned into the archaic, atavistic temporality of Traditionalism. The difference of space returns as the Sameness of time, turning Territory into Tradition, turning the people into one. (Bhabha 149)

  25. Through this process of returning "difference as plurality,"or as Derrida might say, giving "the writing of the other . . . a domestic outline," the limits of national identity, the borders of the same, become a curious "internal liminality" (Grammatology 79; emphasis in the original). It is in this strange chiasmic fold that a nation radically different from itself is announced. As Bhabha puts it, in perhaps the most productive formulation of his essay: "through this process of splitting . . . the conceptual ambivalence of modern society becomes the site of writing the nation" (147). What he wants to go on to do is describe the doubling of the subject within cultural signification (just what non-cultural signification would be we are not asked to consider) as a Derridean supplement. The doubleness of the rhetorical address of the people then becomes the opening of a "supplementary space" in the fractured signifying practices of the socius, a space from which it is possible to "speak of and as the margin, the exilic, the minority," the nation as "DissemiNation" (Bhabha 148).

  26. I am going to leave the tangled web of this attempt to theorize poststructuralist solidarity aside for the moment. While it has a certain usefulness for our thoughts about the situation of contemporary South Africa, I lack the space (and the time, if I am honest) to tease out Bhabha's intrication (or confusion if you prefer) of psychoanalysis, deconstruction and cultural materialism. Furthermore, in terms of the effort I am making to indicate a complicated folding of the borders of the nation into its centre, Bhabha's insistence on an analysis of the forms of life characterizing "modernity" is not strictly necessary. As I will continue to try to suggest, this folding is not an historical contingency --despite the fact that it is historical through and through--but a necessary characteristic of the institution of the nation.

    The borderline is never a secure place, it never forms an indivisible line, and it is always on the border that the most disconcerting problems of topology get posed. Where in fact would a problem of topology get posed if not on the border? Would one ever have to worry about the border if it formed an indivisible line? A borderline is moreover not a place per se. It is always risky, particularly for the historian, to assign whatever takes place on the borderline, to whatever happens between sites, the taking place of a determinable event. (Derrida, "Justice" 233)

  27. Thus far I have been attempting to approach nation and its building from the very authorising centre of its blueprint:
    "English text signed by the President
    Assented to 19 July 1995"
    It is a simple enough observation, however, that a nation can only be approached across a border. The bright block of colour on a political map conspires with the name blazoned across the heartland to call forth the nation as presence; but this visual simulacrum of self-identity works precisely by exclusion of non-identical colours. The nation defines itself from its margins, hence by what it excludes, or allows to contaminate its specular purity. The frontier is always and constitutively crossed; the existence of other nations, and of the nation as different from them, scrawls graffiti across the constitution/institution which believes itself to be "generated by the purely immanent reflection of the general will upon itself" (Bennington 218). Both Rousseau and Kant were aware that even the most perfectly autonomous state would ultimately come into conflict with its neighbours. It hardly bears repeating that most national histories are chronicles of annexation or its repulsion. This is another way in which the core narrative of national identity already includes that which the nation must exclude if it is to become. This poses a problem for a South Africa which wants very much to establish itself as a non-racial democracy more unified that simply unitary. Naked cross-border aggression is unnecessary, not to mention outmoded, and our neighbours offer too little resistance to our economic aggression to be considered worthy opponents. Even illegal immigrants--who so often suffer the violence of acts of national definition both legal and "illegal"--are brought within the charmed circle of tolerance in gratitude for their countries' contribution to the liberation struggle. What alterity could possibly cross the borders of such an inclusive entity? What could possibly be outside it in the first place?

  28. The answer to these questions is to be found in the temporal qualifier which has become so firmly cemented to the proper name South Africa: that is to say, in the country's increasingly uneasy celebration of its pristine newness. The New South Africa which the Constitution, as "an historic bridge,"[5] at once invents and promises, knows itself across a temporal boundary. The past, with apologies to Allistair Sparks, is now another country and "tomorrow" is only a day away.

  29. This brings me back to Asmal's "Victims, Survivors and Citizens" and back to "the act" and to the opening which I promised to pursue. "We have had a history," Asmal writes "of wars of annexation and extermination, slavery and racial discrimination" (491). The past-perfect tense in which he narrates this brief history of atrocity seems to seal off those crimes, and history itself, in the past. We have already had history, he seems to suggest, and we have done with it. The rest of his argument details just why we have not done with it, and I think this may be the most productive tension of the whole legal discourse on truth and reconciliation. We have already seen that the law needs an apparatus for dealing with "the conflicts of the past" in order to conserve its own absolute priority. I now want to look at two ways in which the porous, or rather chiasmatically invaginated, temporal frontier I have identified contaminates that which it is intended to secure, the newness of the nation's institution. First, however, I want to track a little further the doubled rhetoric of the past in the two fragments of legal discourse I have picked out, and second I want to look briefly at some of the ways in which a theory of mourning might disfigure the self-identity of the historical present.

  30. The perpetrators of the apartheid atrocity, particularly in the period between the 2nd of February 1990 and the adoption of the Interim Constitution in 1993 [the Interim Constitution is at ], when they believed they could emerge from the World Trade Centre with a settlement more congenial to conservative whites, frequently called for their political opponents and "negotiating partners" to "close the book on the past." It says something for the resonance of the cliché that it appears in Asmal's address, which calls for precisely the opposite:
    [H]istory cannot simply be sealed off when a chapter such as the one we are leaving comes to an end . . . (492) We will have to close the book on the past, but before we begin to do it, we must not suppress it. I offer the following . . . reasons why the book must remain open for now and for some time after a settlement has been reached . . . (494) [T]he rationale for sacrificing justice for truth is the need to consolidate democracy, to close the chapter on the past . . . (497)
  31. What is it that happens when we close a book, or a chapter? The barest reflection will indicate just how ludicrous and appropriate the figure is. Where and what are we, the readers, writers and written of the past, when the book is closed? How do we get out of it to sit at the desk which supports it? Is the next chapter possessed of a pure posteriority, or is it infected by the material that travels across the "-" (visible or invisible) which links the "post" to modernity, industrialism, colonialism and, last word, apartheid?

  32. Perhaps this is a more appropriate question: what happens when we open a book, or when like a sealed letter, it opens itself across the title on its cover? The answer, without any need for an Hors Livre, Outwork, Hors d'Oeuvre, Extratext, Foreplay or Bookend, is that it ceases to be, or have been, a book, and becomes a text which is, in a fashion not dissimilar from the national narratives I have described above, 'without any limit that is.'

  33. A brief excursion to the historical neighbourhood that has often been referred to as the ultimate limit of narrative will help to relate this to the problematic status of a story of the South African past which is to be found both on and as the horizon from which, to paraphrase Heidegger[6], a "new" nation begins its presencing.

    *     *     *

  34. In the videotaped testimony of survivors of the Nazi holocaust[7] Lawrence Langer is able to discern a number of ways in which the oral record disrupts the consoling teleological narratives of survival, redemption and salvation (2). He is reminded by the absolute failure of representational language to encompass such (literally unspeakable) atrocity, of Blanchot's remarks on narratives of catastrophe. The "unstory" of holocaust is that which "escapes quotation and which memory does not recall--forgetfulness as thought. That which, in other words, cannot be forgotten because it has always already fallen outside memory" (Langer 39). Langer glosses this passage as a response to the problem of "an impossible reality" (Blanchot's phrase) which is impossible not as reality but because of "our difficulty in perceiving it" (40). According to him, Blanchot's "always already outside of memory" describes the disaster for those who have not experienced it, and who are thus "witnesses to memory" rather than to the event itself. As such, witnesses to survivor testimony share with the survivor not the event, but the "crossing and recrossing" of what Blanchot calls "the perilous threshold" of memory. The problems with Langer's reading of Blanchot are considerable, not least because Langer is unwilling to approach Balnchot's "impossible" with anything like the rigour it demands. What he wants to do is to fashion a distinction between oral testimony which represents the difficulty of this passage "truly," and written narrative, distorted "by the legacy of literary form and precedent". "We must establish," he tells us, "the authenticity of the voice before we can respond to the reliability of the text" (58). This, it seems to me, is a highly tendentious argument. However, the need to pose it simply serves to reinforce the initial argument that the threshold between holocaust and language is a perilous, and perhaps impassable or impossible one, a ruined antechamber. That is to say: it remains an aporia.

  35. For Derrida it is here that ashes remain. It will only be possible to think of cinders as a modality of the ethical if what he believes to be the covert calculus of even the most lavish sacrifice is itself submitted, or seen always already to have been submitted, to a 'pyromaniac dissemination' (Cinders 45). What this has meant, for Derrida's work qua ethical effort (as opposed to project), is over and over performing a certain translation of the 'Opfer' which, in The Phenomenology of Spirit, figures the submission of spirit to flame: an ignition spark which fires up the dialectical engine. Derrida's concern is that the ostensibly all-consuming pyre of Hegelian sacrifice burns only to produce a precisely, if secretly, calculated product which will prime the movement of the dialectic.

  36. In the "Animadversions" column of Cinders, Derrida cites the reading of Hegel conducted at length in Glas, and recites by way of reading what begins to look like the culmination of the tradition, a brief history of the west:
    Here is experienced the implacable force of sense, of mediation, of the hard working negative. In order to be what it is, purity of play, of difference, of consuming destruction, the all-burning must pass into its contrary, guard itself, guard its own monument of loss, appear as what it is in its very disappearance. As soon as it appears, as soon as it shows itself, it loses itself as fire. Pure difference, different from (it)self ceases to be what it is in order to remain what it is. This is the origin of history, the beginning of the going down, the setting of the sun, the passage to occidental subjectivity.

  37. Hegel sacrifices the "fur-sich-sein" of spirit in order that it may reappear within the circle of religion, "philosophy's truth." The same, apparently incalculable, but absolutely canny procedure is at work in Christian ethics, which always pays back the absolute gift of sacrificial love with a place in the arms of eternity. This is, as Derrida suggests in The Gift of Death, what binds speculative thought and religious thought. The gift is always a sacrifice, and it is always calculated. In the flames of Opfer, Spirit gives itself to itself, logic of the Phoenix. In Cinders he insists "[t]here is rebellion against the Phoenix and also the affirmation of the fire without place or mourning" (59). It will be crucial, despite the Freudian track of Derrida's text, to keep in mind this failure and absence of mourning. If, as Blanchot suggests, to read (or misunderstand, or refuse to read) Hegel is to prepare for "the death of reading, the death of writing--which leaves Hegel living: the living travesty of completed Meaning" (44). What Derrida hopes to affirm --and "Il y a la cendre" is an affirmation--seems to me to be "the naught left over" by the system and systematicity, what Blanchot characterizes as the "still to be expended . . . the push of dying in its repetitive novelty" (45). When the gift sets the fire which will ultimately consume even its own play of flames, it also institutes a holo-kaustos, the all-burn which installs ontology and which, crucially for our discussion, hangs between language and the as yet withheld truth of Being.

  38. It is through this screen of flames that Derrida reads Heidegger, and in its glow that he attempts to articulate a difference between his thought and that of the thinker who is unquestionably if problematically his progenitor. The gift precedes the ontological question; it precedes that very being which it gives to be thought. Being as gift always guards itself in holocaust. As soon as it burns, it begins to be: that is the history of ontology. "Even if it upsurges 'before' philosophy and religion, the gift has for its destination or determination, for its Bestimmung, a return to self in philosophy, religion's truth" (Cinders 48). It is a disarticulation of this economy that the fragile, persistent ashes offer:
    ". . . I will never get there, the contamination is everywhere and we would never light the fire. Language poisons for us the most secret of our secrets, one can no longer even burn at home, in peace, trace the circle of a hearth, one must sacrifice one's own sacrifice to it" (Cinders 64; the quotation marks are Derrida's).
  39. The sacrifice must be given up because the interminable corruption and substitution of iterable language intervenes to prevent perfect and absolutely secret correspondence between correspondents. In the context of our discussion we might reformulate this as an intervention between "essential thinking" and the "still withheld truth of Being," which nevertheless marks language as a non-ontological trace, or cinder, of an ancient burning. "Il y a la cendre": Es gibt aschen. English struggles with this annunciation: cinders are not, but cinders there are.[8] The ashes of the outside of language, of the unspeakable other, glow on what we must now feel less comfortable about calling its inside.

  40. In the aporia of the passage to memory, then, (are) the traces of the difference, or unstory, which Langer believes emerge in speech but are smoothed over or dominated by metaphysics when the holocaust is co-opted by narratives of transcendence and humanism. Clearly what Langer refuses is the more radical persistence of an absolute alterity which could be recoverd by no documentary project, however exhaustive. He has ignored, among other things, Blanchot's ringing aphorism, "The disaster takes care of everything." What I wish to retain from Langer, however, is the figure of a difficult passage, crossed and recrossed in a terrible oscillation but never, finally, passable.

    *     *     *

  41. The institution of South Africa is impaled upon that undecidable, trapped in an infinitely accelerated oscillation: the book must be closed, Asmal tells us, but not yet. It must be closed when the holocaust of apartheid has become the narrative justification for a new legal order, when we have crossed the bridge, or boundary, represented by the interim constitution. As we have just seen in the work of Bhabha, Langer and Derrida, it is impossible to close the book or to seal the chapter. Even if it were, the resistance of history, atrocious or otherwise, to a final totalization, would ensure that narration as the ground of nation is "always by essence an underground" (Derrida Limited, 34). Kader Asmal, The Promotion of National Unity and Reconciliation Act and the "interim" Constitution of the Republic of South Africa each recognize this in ways which are more or less secret from their own intentions. All three position the nation and its people in an in-between, which is in fact the border of a concept, and therefore never unproblematically in between "determinable events". However much the rhetoric of national unity insists on the purity of our newness, its need to do so by contrast to the old, and as a victory over the old, its need to do so at all, contaminates the present with the Klang[9] of the past. In this interim state the notional identity that is nationality is not unlike the bereft subject of Freud's extraordinarily rich 1914 essay, "Of Mourning and Melancholia"--literally inhabited by the lost other.

  42. "Mourning," Freud writes, "is regularly the reaction to the loss of a loved person, or to the loss of some abstraction which has taken the place of one such as fatherland, liberty, an ideal and so on"(153). The mourner is generally possessed of a conscious apprehension of exactly what has been lost in the object, and energy is withdrawn from the world in order to complete the work of mourning, which eventually severs the object cathexis, and releases the subject to a full life (i.e. the ability to form new cathexes). The melancholic, on the other hand, may be aware that his love object is lost, but is unconscious of what it is he has lost in that object. In addition to an abnegation of interest in the external world, the melancholic suffers a catastrophic fall in self-esteem, "impoverishment of the ego on a grand scale"(155). In both cases, libido is withdrawn from relations with the world in order to accomplish the work of grief. However, in the melancholy economy, this energy fails to become free for new object cathexes as it is bound in the ego, part of which now forms an identification with the lost object. As Freud puts it with characteristic figural verve, "[t]he shadow of the object [falls] upon the ego"(159) which now becomes subject to bouts of delusional guilt and moral self-belittling through the agency of an internal version of the object. For all of this to take place, the fixation on the object must have been particularly strong and the cathectic bond particularly weak, a situation which for Freud (following Otto Rank) indicates a narcissistic object choice. Melancholia thus combines the features of mourning with a "regression from narcissistic object choice to narcissism"(161).

  43. The sufferer may take pleasure in self-reproach to the point where suicide becomes possible. For a Freud who is yet to theorise the death drive, this is only possible because a part of the ego now represents the object. This object becomes the site of a sadistic violence which overwhelms and obliterates the ego. "In the two contrasting situations of intense love and suicide the ego is overwhelmed by the object"(163). Consuming the other in order to keep it alive as memory, and thus to secure a narcissistically relational identity, the subject is literally consumed by the other, ablaze with loss. Derrida, who has evidently read Freud very carefully, describes the memory of loss as "terrifying lucidity ... an incinerating blaze where nothingness appears"(Cinders 21). This is nothing more or less than the figure of a holocaust, an apprehension of death.[10] He goes on, without citing "Of Mourning and Melancholy" but surely picking up its stitches:
    This being "in us," the being "in us" of the other in bereaved memory, can be neither the so-called resurrection of the other himself . . . nor the simple inclusion of a narcissistic fantasy of a subjectivity that is closed upon itself or even identical to itself. . . . Already installed in the narcissistic structure, the other so clearly marks the self of the relationship to self, so conditions it, that the "being in us" of bereaved memory becomes the coming of the other. And even, no matter how terrifying this thought may be, the first coming of the other. ("(Cinders 21-22)
  44. The Truth Commission, as a necessary part of the foundation of a new South African "us," is a forum for bereaved memory "establishing . . . the fate and whereabouts of victims [of gross violations of human rights], affording victims an opportunity to relate the violations they suffered."[11] Testimony offered there, inside the State, carries in its outside: the past, the ashes of an other who was gunned down, hanged, poisoned, beaten: an other who burned. This is the fold of our "interim": the bridge of the constitutional provision for narration does not cross over the abyss of our mourning, it is our mourning and we will not arrive either on, or as the other side:
    "True" mourning does not exist as such. Rather it indicates a tendency, the tendency to accept incomprehension, to leave a place for it, and to enumerate coldly, almost like death itself, those modes of language which, in short, deny the whole rhetoricity of the true (the non-anthropomorphic, the non-elegiac, the non-poetic, etc.) (Derrida, Cinders 31)
  45. The commission represents the possibility for such incomprehension -- in the form both of a failure of the auto-authorization of the autobiography that is confession,[12] and the various impossibilities of narration I have outlined--to irrupt into our national present. The impossibility of full comprehension, of understanding loss as sacrifice, means that unlike the mourner who recovers himself from his investment or intrication in a lost other, the melancholy nation remains undecidably in-between self and other, in the chiasmus of the wound, or a hymen, that I want, without refering to any legal document, to call our interim constitution. In, on, indeed as that fold--constitutional assemblies, the deliberations of the constitutional court and all the self-legitimating apparatus of a law conserving law notwithstanding[13]--is where we will always remain.


  1. Throughout this paper, I have added links to relevant sites. I also recommend, on the Truth Commission and related political matters:;;;; The main address for the African National Congress is:; the Mail and Guardian's Jump Start Guide to South African internet resources can be found at On the arts and culture front, links to note are the recent "Images of Human Rights" exhibition in Durban (with a foreward by Desmond Tutu) at and the South African National Gallery site at Back

  2. As published in Government Gazette vol. 361 no. 16579, Cape Town, 26 July 1995 and amended in vol. 364 no. 16774, 16 October 1995.Back

  3. Bennington, 1994, p. 292. Bennington's lucid discussion of the Social Contract and the Project for the Constitution of Corsica in the essays "Postal Politics and the Institution of the Nation" (pp. 240-257) and to a lesser "Mosaic Fragment, or If Derrida Were an Egyptian" (pp. 207-226) serve as my guiding thread here. Derrida's writings on founding violence and institutionality in essays like the explicitly Levinasian "Force of Law: the Mystical Foundation of Authority" (1993) form the most powerful theoretical context for the discussion. Back

  4. Unlike many other totalitarian regimes the Nationalist government was obsessed with maintaining the fiction of legality. African customary law was co-opted to this project as a kind of natural law for blacks. But my contention is that no universal and natural law of the Rousseauist kind, even if declared natural only by an act of positive legislation, could close the circuit of the sovereign state around the homelands. Back

  5. cf. the preamble to the Promotion of Reconciliation and National Unity Act. This "bridge" character of what is, after all, an "interim" constitution, is something to which I will have to return.Back

  6. "A boundary is not that at which something stops but, as the Greeks recognized, the boundary is that from which something begins its presencing. . ."(Heidegger 152).Back

  7. Use of the lower case "h" will be the only signal I can give that I am troubled by the motion of propriation, the grasping and making proper of the extermination of European Jewry in the naming of that event as the one and only Holocaust. This is a canonical principle of "Holocaust studies," even in its most open and aporetic form, and it is a principle which is urgently in need of destabilisation. Of course this does not mean that apartheid violence can be in any way equated with the Shoah, only that a certain lapse, or failure opens up elsewhere also, and we need to allow that lapse to trouble or efforts at "thought" about atrocity.Back

  8. Cinders 20-31 and passim, see also "Given Time: The Time of the King", Critical Inquiry 18, no. 2 (winter 1992): 161 - 187.Back

  9. Hegel's name for the ringing at the origin of language, a sound which Heidegger also describes as that of a bell. cf. Luckacher, p. 3, and, of course, Glas. Back

  10. Interestingly enough, Derrida describes the impossibility of belief in death and Langer notes that some holocaust survivors describe themselves as unable to believe their own memories(40 - 60).Back

  11. The long title of the act states that it is: "To provide for the investigation and establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights ... emanating from the conflicts of the past, and the fate or whereabouts of the victims of such violations ... affording victims an opportunity to relate violations they suffered ... reporting to the Nation about such violations and victims ... and for the said purposes [I have omitted a few, see appendix] to provide for the establishment of a Truth and Reconciliation Commission. Back

  12. cf. the final chapter, "Excuses (Confessions) of de Man's Allegories of Reading (New Haven: Yale, 1979) and, for a slightly different but no less appropriate reading, J.M. Coetzee's essay "Confession and Double Thoughts" on Rousseau, Tolstoy and Dostoyevsky in Doubling The Point (Cambridge, Harvard, 1992). Back

  13. Decisions of the constitutional court are online at . The certification of the 1996 constitution is at . Back

Works Cited

Asmal, Kader. "Victims, Survivors and Citizens--Human Rights, Reparations and Reconciliation." South African Journal of Human Rights 8 (1992): 491 - 511.

Bhabha, Homi K. The Location of Culture. London: Routledge, 1994.

Bennington, Geoffrey. Legislations, The Politics of Deconstruction. London: Verso. 1994.

Blanchot, Maurice. The Writing of the Disaster. Trans. Ann Smock. Lincoln: U of Nebraska P, 1986.

Coetzee, J. M. Doubling the Point. Cambridge, MA: Harvard UP, 1992.

de Man, Paul. Allegories of Reading. New Haven: Yale UP, 1979.

Derrida, Jacques. Cinders. Ed. and Trans. Ned Luckacher. Lincoln: U of Nebraska P, 1991.

---. Glas. Trans. John P. Leavy Jr. and Richard Rand. Lincoln: U of Nebraska P, 1991.

---. Dissemination. Trans. Barbara Johnson. Chicago: U of Chicago P, 1981.

---. "Force of Law: The Mystical Foundation of Authority." Trans. Mary Quaintance. Deconstruction and the Possibility of Justice. Ed. Drucilla Cornell. Chicago: U of Chicago P, 1993.

---. "Given Time: The Time of the King." Trans. Peggy Kamuf. Critical Inquiry 18 (winter 1992): 161-87.

---. Limited Inc. Evanston, IL: Northwestern UP, 1988.

---. Memoires for Paul de Man. Trans. Cecile Lindsay, Jonathan Culler and Eduardo Cadava. New York: Columbia UP, 1986.

---. 1976, Of Grammatology. Trans Gayatri Chakravorty Spivak. Baltimore: Johns Hopkins UP. 1994.

---. "To Do Justice to Freud, an History of Madness in the Age of Psychoanalysis." Critical Inquiry VOL (winter 1994): 215 - 267.

Fanon, Frantz. The Wretched of the Earth. Trans. Constance Harrington. Harmondsworth: Penguin, 1969.

Freud, Sigmund. Collected Papers Vol. IV. Trans. Joan Riviere. Ed. Ernest Jones. London: Hogarth, 1948.

Heidegger, Martin. Poetry, Language, Thought. New York: Harper and Row, 1971.

Langer, Lawrence. Holocaust Testimonies, The Ruins of Memory. Cambridge, MA: Harvard UP, 1991.

Luckacher, Ned. "Introduction." Cinders. By Jaques Derrida. Lincoln: U of Nebraska P, 1991.

Mandela, Nelson. The Struggle is My Life. London: Heinemann, 1968.

Promotion of National Unity and Reconciliation Act. Government Gazette [Cape Town] 361 no. 16579 (26 July 1995).

Rousseau, J.J. Politcal Writings. Trans. Julia Conaway. Ed. and Trans. Julia Conaway. Bondella, NY: Norton, 1987.

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