Performing dignity: Human rights, citizenship, and the technopolitics of law in South Africa

Since the end of apartheid, rights-based languages of human dignity have often been central to articulating state obligation and making claims on the state in South Africa. In this article, I explore this moral–legal politics by focusing on a legal case brought against the City of Johannesburg by five Soweto residents on the basis of their constitutionally guaranteed right to water. Examining the epistemologies and evidentiary practices on which it was built, the debates and protests that surrounded it, and the residents’ informal articulations of their discontents, I use the legal case as a lens to explore how the political terrain has been transformed in South Africa in the context of this rise of human rights and the law as languages and modalities of politics. Thus, I explore how citizenship—as a set of techniques, imaginaries, and practices—is refashioned via languages of humanity, and I highlight the ambivalent ethical and political effects of this shift. [human rights, citizenship, neoliberalism, law, techno-politics, expertise, water, South Africa] I n May 2011, shortly before the nationwide local elections, South African newspapers announced “The Toilet Election” (see Mail and Guardian 2011b). The announcement—transmitted via headlines posted alongside roads and displayed on front pages—came in the aftermath of a drawn-out dispute in the Western Cape province between the locally ruling Democratic Alliance (DA) and the opposition African National Congress (ANC). For weeks, the ANC had accused the DAcontrolled City of Cape Town of building toilets without enclosures in the township of Khayelitsha. The construction was part of a larger “site and service” scheme in which residents are provided with a plot of land and infrastructure connections but are expected to build their own housing. In this case, the toilet walls were to be added by residents themselves. In articles illustrated by photographs of the exposed toilets in the midst of empty plots, political commentators lamented the “image of a woman sitting on a toilet without an enclosure” as an “indignity” demonstrating the “lack of compassion” in postapartheid South Africa (Grobler and Montsho 2011). Shortly thereafter, the Cape Town High Court ruled that the city had violated the residents’ constitutional right to have their dignity protected and ordered officials to build enclosures for the toilets. Grudgingly accepting the judgment, DA leader Helen Zille argued in defense that “it was precisely because we believe communal toilets impinge on the dignity of people that the city sought to extend sanitation services to every household within available budgets” (Mail and Guardian 2011a). Commentators would later describe the open toilet debacle as an “election stunt,” especially since it turned out that unenclosed toilets had also been installed in ANC-ruled municipalities. Yet the public spectacle and the moral anxieties it prompted ultimately pointed to larger questions; here, in the language of rights, dignity, and populist electoral gamble, a woman exposed on an open toilet became a metonym for the disappointments of the postapartheid condition. Indeed, the toilet debate and the way it was framed by the courts and the media demonstrated with AMERICAN ETHNOLOGIST, Vol. 41, No. 2, pp. 336–350, ISSN 0094-0496, online ISSN 1548-1425. C © 2014 by the American Anthropological Association. All rights reserved. DOI: 10.1111/amet.12079 Performing dignity American Ethnologist particular clarity how central moral–legal languages of human dignity had become not only as a repertoire for making claims on the state but also as a form of rationalizing and articulating citizenship and its entitlements. For, political differences aside, dignity was a value no party to the debate could afford not to lay claim to. Of course, many other ways could have been found to express discontent with the toilet situation; the politics of infrastructure in South Africa comes in many shapes and forms.1 Most obviously, perhaps, the altercation took place in a context of widespread and, at times, violent “service delivery protests” all over the country, of the kind that, in the past, had rarely received similarly sympathetic coverage or public support. Shortly after the toilet debate, Cape Town would also witness the rise of the “poo wars” during which residents of informal settlements protested by spilling sewage at central locations. Moreover, the controversy transpired amid persistent concern about the inability of communities to participate in decision making regarding housing or basic service provision and, more broadly, a pervasive disappointment with the speed of postapartheid transformation. Yet, here, as in many instances before, a moral–legal language of human dignity framed the ensuing public debate around state obligation. In this article, I track the ambivalent consequences of this contemporary prominence of moral–legal forms of claiming and adjudicating state duty. Building on anthropological work that has examined the centrality of lawand rights-based politics in South Africa (Comaroff and Comaroff 2006; Robins 2006), I explore how conceptions, techniques, and practices of citizenship have been reconfigured in a moment in which languages of humanity increasingly frame not just state obligations but citizenship itself. My argument unfolds via an ethnographic exploration of Lindiwe Mazibuko and Others v. City of Johannesburg, Johannesburg Water Pty. Limited, and the Department of Water Affairs and Forestry (2009), a much publicized and precedent-setting legal case in which five poor Soweto residents took the City of Johannesburg to court on the basis of the right to water enshrined in the constitution. While Mazibuko has been of particular interest to legal scholars, here, I use the case, and the epistemologies and evidentiary practices on which it was built, as a lens to explore “what human rights do” in relation to citizenship and the political terrain.2 Following the legal techno-politics that came to define the case, and the debates and protests it sparked, I ask: How are particular discontents narrativized as moral– legal problems and as violations of “human dignity”? What meanings does “human dignity” take on as it travels between different contexts, and what are its performative effects? How do globally circulating norms intervene in historically specific political arguments and how are they appropriated and transformed? What new formations of citizenship emerge in this context? The “human” as a political terrain Beginning with Edmund Burke and Karl Marx, the distinction between man and citizen, first articulated in the Declaration of the Rights of Man and Citizen, has often functioned as both target and heuristic for the critique of human rights. In one of the most searing commentaries, Hannah Arendt argued that human rights were hollow without citizenship: “Man had hardly appeared as a completely emancipated, completely isolated being who carried his dignity within himself . . . , when he disappeared again into a member of a people” (2004:369). Appeals to the “human,” she argued, were at best meaningless without membership in a political community where such rights could be claimed, recognized, and protected.3 Recent anthropological scholarship has critically explored the implications of Arendt’s argument and has also gone beyond it in important respects. There is now a large literature documenting the ambivalent ethico-political consequences of humanitarianism and human rights as new governmental grammars and, importantly, also as languages to stake political claims. This scholarship has focused largely on populations outside normative modern structures of accountability, such as refugees, undocumented migrants, the stateless, or populations unprotected by state institutions (see, e.g., Feldman 2007; Malkki 1996; McKay 2012; Redfield 2013; Ticktin 2011). While this focus on “exceptional” populations has been extremely productive, less attention has been paid to how citizenship itself has been transformed in the context of this global prominence of languages of humanity. Indeed, critical discussions of human rights and humanitarianism at times implicitly hinge on the modernist figure of the citizen as a constitutive outside or normative foil. In what follows, I explore a peculiar contemporary reversal of Arendt’s problematic: To make effective claims on the state, citizens today often need to use the language of human rights to be “heard.” Rather than being trumped by and subordinate to citizenship, as Arendt argued, in the contemporary moment, human rights become a specific mode of articulating citizenship and its entitlements. Thus, my discussion analytically follows the activists who mobilize notions of human dignity on the streets and in the courts and the experts, lawyers, and judges who adjudicate, measure, and attempt to fill the concept with content. In analyzing the specific modalities through which “human dignity” is performed and the publics it interpellates, I trace the transformation of a political terrain shaped by the modernist languages of liberation, solidarity, and social citizenship of the antiapartheid struggle and its articulation with more minimalist idioms of individual rights and the satisfaction of “basic needs.” These transformations take shape against the larger backdrop of a seemingly paradoxical post–Cold War