Jaco Barnard-Naude

Sexual orientation discrimination is never just that

In the late nineties, Prof Francisco Valdes from the California Western School of Law, set out to address what he saw as a dangerous loophole in American anti-discrimination law. The loophole existed in the context of sexual discrimination laws. At the time, discrimination on the grounds of sex and gender was outlawed, but, as a…

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Violence will not do it

Almost three weeks ago, Americans commemorated the fifteenth anniversary of the event that has had a decisive impact on global politics ever since: 9/11. Three years later, in 2004, Judith Butler published a book entitled Precarious life: the powers of mourning and violence. I didn’t read this book at the time of its publication. The…

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In the ‘pitfalls’ of the national democratic revolution

Way back in 1998, American constitutional theorist Prof Karl Klare published a now famous article in which he set out to define South Africa’s post-apartheid constitutional project. He called this ‘transformative constitutionalism’ and defined it as follows: ‘a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a…

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The TRC as biopolitical imperative (Part 2: The ‘Tumult Commission’)

In the previous post, I mentioned that Sitze (2013) argues that the TRC had its jurisprudential origins (or precedents) in “colonial sovereignty and governmentality”. I discussed how Sitze argues that the indemnity convention originated in the theory of parliamentary (political) sovereignty of Dicey’s English constitutional law. I then discussed how the indemnity convention, as an…

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The TRC as biopolitical imperative (Part 1: Indemnity)

Now that 20 years have passed since the TRC undertook the complex task of promoting national unity and reconciliation, it is an opportune moment to reflect on its legacy. In an as yet little known book, The Impossible Machine: a genealogy of South Africa’s Truth and Reconciliation Commission, published in 2013, Adam Sitze targets much…

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Removing Rhodes’ statue would not ‘erase the past’

“Those who do not learn from history are doomed to repeat it,” writes George Santayana. In the midst of the argument that the #RhodesMustFall campaign is fuelled by a misguided desire to “erase the past”, it seems to me that it is ironically, but precisely, this argument that is hampered by a deeply short-sighted approach…

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Rhodes, Rancière and the politics of aesthetics

The events surrounding the protests for the removal of the Rhodes statue located at a focal point on the Upper Campus of the University of Cape Town (UCT) has provided me with an opportunity to revisit Jacques Rancière’s influential contemporary argument on the politics of aesthetics. The focus on a statue obviously lends an explicit…

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Anti-homosexuality legislation in Africa: The Hart-Devlin debate revisited

The news this week that The Gambia has passed a Bill that further criminalises homosexual conduct and imposes life sentences in cases of “aggravated” homosexuality, along with the continued coverage of the constitutional fate of similar legislation in Uganda, provides an occasion to revisit the most famous debate about the criminalisation of homosexuality in the…

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The refusal of Michel Houellebecq

The title of this post is ambiguous. For instance, is Michel Houellebecq refusing someone or something, or is he the one who is being refused by someone or something? Those readers who are familiar with what the French referred to as “L’affaire Houellebecq”, after the publication of and controversy that ensued from the publication of…

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Be cruel to be cruel

It is May 1968. Raging in the streets of Paris, the (in)famous student uprisings. On the walls of the Sorbonne a slogan appears: “SOYONS CRUELS!” / “BE CRUEL!” Someone comes up to you and asks: “Have you seen this writing on the wall? What is it telling me to do?” Cruelty, by which I mean…

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