Law and Arts: Part 1 of 3

A Visual Interpretation of Ancestral Land Right Claims in Namibia

By Saskia Vermeylen - Posted on 16 June 2023

A road well-travelled

When I started my PhD 20 years ago, I had just embarked on reading History of Art as a part-time student at Birkbeck, University of London. Combining the two seemed impossible and hard choices had to be made and reluctantly I closed the door on history of art. But my passion for art kept following me and every so often I found myself circling back to the arts in my writing and academic practice (for examples see my co-authored article on museum objects with Jeremy Pilcher, my article on space law and space art, and my chapter on the relationship of law and maps). But it was during my Leverhulme fellowship that I found a way to combine full heartedly my interests in law and the arts. Together with the artist and PhD candidate at Rhodes University Luke Kaplan, I present in this blogpost our project on law and photography and the accompanying exhibition we are curating during the National Arts Festival from 22 June – 2 July in Makhanda, South Africa. More details about the exhibition can be found on the National Arts Festival website.

When I travelled for the first time to Omatako Valley, I had no idea how bumpy and bendy the road would be – that’s the metaphorical road as the one to Omatako is straight.  Looking back on the journey, I have come a long way. When I finished my PhD in 2007, I couldn’t grasp yet the full and embodied meaning of Indigenous law. It has been a quest to find the language and do justice to the San’s cosmovisions and ways of being. A lot of de-learning has happened since, decolonising the mind requires a certain playfulness and open-mindedness to let go of what we know. What we present here is experimental and a visual representation of the dialogue that enfolded in May 2022 about the meaning of ancestral land in front of the camera. Through the collaboration between Ju/’hoan and !Xun community members in N//homa and Luhebo with !Xun youth leader Kileni Fernando, and photographer Luke Kaplan, a socio-legal photo reportage documents the meaning of living law in the Kalahari.

Legal and historical context

Most of the different San language groups in Namibia have been dispossessed of their ancestral lands and resources. Each has their own distinct customs and they identify as Indigenous. Access to their ancestral lands is not only important to sustain San livelihoods, but also a crucial part of the peoples’ various spiritual and cultural beliefs, and identities. During colonial times the San lost their land to colonial settlers, and even in post-independence Namibia, under pressure from tourism, conservation, and agricultural and other extractive activities, the San still face dispossession. With the absence of a national statutory legislative framework, and the failure or delays of various legal cases that the San are involved, the San in Namibia still face ongoing legal and political uncertainty around the recognition of their ancestral land right claims (as discussed in Willem Odendaal’s earlier post on the Strathclyde Law Blog).

Photography as a legal enquiry

Cultural critic Walter Benjamin, despite being highly sceptical of photography, wrote in his 1931 essay Little History of Photography that photography offered the possibility to create a new way of seeing, and that it can act as a document of possibility. This is what we wish to achieve with Lore of the Land. Through a series of formal portraits and photographic images that portray every-day life, in its domesticity and spiritual belonging, the exhibition spotlights the legal agency of the Ju/’hoansi and !Xun. While the San in Namibia struggle to get their land rights recognised in the court of justice, we show in this exhibition what justice and dignity looks like in front of the camera.

Historically, the law tended to portray ‘non-Western’ peoples as nomadic ‘savages’ in order to justify colonialism and imperialism. So too, photography has often been used as a visual tool to assert colonial supremacy: the history of photography is intimately entwined with colonialism. Present-day land right claims often force Indigenous peoples to present their historical connection and belonging to a specific place through a dominant discourse that essentialises and romanticises Indigenous lifestyles, such as the familiar image of a San man dressed in traditional loincloth and carrying traditional bow and arrows. This type of image both reinforces those romanticised stereotypes and emphasises the profound difference between the subject and the viewer. To subvert this type of iconography, we are presenting the visual dialogue that unfolded during our stay in the communities of N//homa and Luhebo. Influenced by the critical work of Ariella Azoulay, we are expanding the performative element of the image to impose a civic duty on the ‘spectator’ to change our perception about what the law is.

The portraits and other images presented here came about collaboratively. They tell the stories of these connections to place and sense of belonging, not merely through the lens of the historical: the women of N//homa tell the stories of their children’s births, of the tree where it happened, and therefore of their and their children’s connections to this place and future identities. The young women of Luhebu tell the stories of their menarche rituals, and of how this connects them, too, to these places in the future, not just the past. These practices, along with the objects and materials of daily life, and the spiritual rituals enacted around the fire – variously shown throughout this exhibition – constitute a claim to place and identity, even where judicial frameworks still attempt to deny this legitimacy.

The story that the Ju/’hoansi and the !Xun tell in this exhibition is that they are, in the words of Hannah Arendt, people who have ‘the right to have rights’, just as we all do. The photographs are therefore more than just images on paper; they carry a political and legal meaning that draws you into a relationship of solidarity, not on the basis of San vulnerability, but on the fact of our shared humanity. This exhibition calls upon photographer, photographed, researchers, and viewers to all take responsibility for rethinking the law. In the words of Audre Lorde, ‘the master’s tools will never dismantle the master’s house’. For the San to achieve legal recognition, we first and foremost need to change the tools of the law. Ancestral land right claims are not just about statutory provisions, codified practices or international treaties. As the photographs testify, the law is active and alive, held not only in courts, but in culture: it is performed when giving birth, making a fire, maintaining connections to animals and trees, and when calling upon the ancestors in a place called home.

Curatorial themes

Birth Site Portrait and Menarche Portrait series

The portraits open up a conversation between the subjects and the viewer, functioning as speech acts – an interaction with the women, their children, and future generations. They draw you into their life stories, and their sense of belonging to a specific place. The gaze that holds your attention has a performative force; it draws you into a relationship of respect, care, and responsibility. The portraits go beyond the status of a testimony or evidence in courts, by invoking in us, the viewers, a sense of our shared humanity and responsibility.

The portraits, which show women in places of significance for them, as the physical sites of their rites of passage (menarche and birth), represent the living and emerging nature of ‘sacred place’. Sacred sites are not only places of significance from the past, held in the memories of the ancestors or the elders, but are being made and consecrated within each persons’ lifetime, through their own life stories in relationship with place and land. In this way, living law is being woven within and between people and place in the here and now, connecting the past, present and future.

N!om (Black & White) series

The ancestors play an important role in the San’s legal culture and societal structure. Through healing dances, healers can transcend the quotidian – they can enter the world of ancestors and spirits; they can interact with, and receive the wisdom of the ancestors. Unlike our Western legal system that is codified in written texts, the Ju/’hoansi’s legal culture can be found in !aia: when the healer is in contact with the spirits and ancestors. These images, of the healing dances held by the community, visually evoke N!om – the spiritual power which is accessed by the healers. This potency remains invisible to most of us, yet it underpins and sustains everything in the world; it is a potency only accessible to experienced healers, but which holds the universe of the Ju/’hoansi alive. 

N!om 2022, Luke Kaplan

Object series

The series showing objects, such as a kettle, axe, or pot, visualises the law as it appears in its daily routines, places, rituals, and actions. By focusing the lens on different everyday objects, seemingly prosaic life is given political and legal meaning. The recognition of ancestral land right claims is fought not only in courts of law, through bureaucratic and abstract legal means: legal recognition starts in the here and now, where law is produced and reproduced through everyday encounters. This series also includes ritual and culturally specific objects, such as traditional hunting equipment, or a healer’s beaded loincloth used in dances, showing that the law is not only defined by the nation state – it is performed through intricate entanglements between subjects and objects, breaking down the rigid juxtaposition between mind and matter in Western legal thought. 

Photography by Luke Kaplan

Curated by Luke Kaplan and Saskia Vermeylen

Curatorial text written by Saskia Vermeylen and Luke Kaplan

Project concept developed collaboratively by Kileni Fernando, Luke Kaplan, Dylan McGarry, Ivan Vaalbooi and Saskia Vermeylen, and supported by UKRI/ESRC, Transforming Education for Sustainable Futures (Bristol University), Environmental Learning Research Centre (Rhodes University), the Namibian San Council, and the National Arts Council