Stephen Pete

Flogging, Fear and Food: Punishment and Race in Colonial Natal

Following Michel Foucaults seminal work on the birth of the prison in Europe, much attention has been focused on the move away from ‘sanguinary’ punishments, such as torture and whipping, towards more subtle forms of disciplinary control. This move was not as marked in the colonies. In colonial Natal, elements of the pre-modern remained in the widespread and excessive flogging of African subjects. Benthamite ideas of punishment were adapted and transformed in a complex colonial discourse which linked ideas of punishment to those of race and colonial domination. What emerged from this process was a uniquely colonial hybrid, a penal discourse bifurcated along racial lines, combining elements of the pre-modern and the modern. The widespread flogging of Africans in colonial Natal was linked to a particular racialised understanding of colonial subjects that was shaped by colonial paternalism and a deeply embedded fear of attack from the surrounding black population. On the one hand, flogging was regarded as a simple form of punishment that the ‘childlike Native’ could understand. On the other hand, it was seen as a powerful deterrent, justified by the brutal nature of the ‘savages’ to whom it was applied. Race also defined the type of punishment considered suitable for white offenders. Of central concern to the colonists was the stigma involved (from a white colonial perspective) in punishing a white offender (as a representative of the ‘governing race’) alongside black offenders. Developing conceptions of race were also reflected in different dietary scales for different racial groups, which were in a constant state of flux during the colonial period. Throughout this period debates on the topic of penal reform reflected, reinforced and contributed to the development of colonial ideas about race and racial differences.

South African nationals abroad and their right to diplomatic protection - lessons from the 'mercenaries case'

Abstract The South African Constitutional Court’s judgment in the ‘mercenaries case’ (Kaunda v President of the Republic of South Africa) is critically considered, particularly its conclusion in respect of the so-called right to diplomatic protection. The majority decision does little more than underline that a South African citizen is entitled to write a letter or in some other manner ask his or her government for assistance. To the extent that this ‘right’ has any meaning, it appears to lie in the correlative obligation placed on the state once it has received its national’s request. However, the obligation imposed on the state is — by the Court’s low-level rationality test — watered down to the point of being virtually meaningless in the context of diplomatic protection claims. The Court’s approach shows undue deference to the executive in the realm of foreign relations and means that judges will have little reason to look critically and astutely at decisions to refuse diplomatic protection. There is more to support in the minority judgment delivered in the case which suggests (albeit not as strongly as it could) that there may be a duty on the government to do what it reasonably can within the confines of international law to protect the rights of nationals as they are guaranteed in the Constitution of the Republic of South Africa, 1996, even when such nationals are abroad.