Like many of his comrades in the South West Africa People's Organization (SWAPO) Youth League, 23-year-old Ndaxu Namoloh arrived at the offices of the Kwanyama Traditional Authority in Ohangwena on 8 November 1973, expecting to bear witness to the trial and punishment of Ndali Kamati and Nestory Shanjengana. Kamati and Shanjengana were two members of the Youth League who had been arrested for causing ‘disturbances’ throughout Ovamboland, the north-central region of present-day Namibia. Those familiar with recent events in the region undoubtedly anticipated seeing the accused flogged for their political activities. Beginning in September, traditional authorities in Ondangwa and Ohangwena had embarked upon a campaign of corporal punishment against SWAPO activists, often stripping their captives naked before forcing them to bend over a chair or stool and flogging them on the buttocks. These spectacles always occurred on the verandah adjacent to the offices of the traditional authority, where men, women, and children gathered to watch the punishments take place, to see for themselves the power of tradition and repression over the representatives of liberation. Those selected for punishment tended to be the most outspoken members of SWAPO in Ovamboland, the ones who had traveled throughout the region in recent months, urging Ovambos to disobey authority and boycott elections for the newly-organized Ovambo Legislative Assembly. But the ranks of the punished also included lesser-known figures, young men whose only crime might have been making the SWAPO salute with their fists, or, as in the case of Ndaxu Namoloh, using their clothing to show their allegiance to SWAPO's cause. For it was on that day that Namoloh, the son of a mission school teacher, decided to wear a white t-shirt and white tennis shoes on which he had written ‘SWAPO of Namibia’ and sketched the colors of the Namibian flag. In the context of 1973, seven years into SWAPO's armed struggle against South African rule in the territory, and within an increasingly unstable political environment in Ovamboland, Namoloh's dress was a provocation. He was spotted by several policemen for the traditional authority, who tossed him into the back of the same lorry carrying Kamati and Shanjengana.Footnote 1
Namoloh was the first of the three to be brought before the Kwanyama council of headmen. ‘Are you a member of SWAPO?’ asked one of the headmen. Namoloh said yes. ‘What is Namibia?’ the headman asked. Namoloh answered, ‘It is our land, namely South West Africa.’ ‘Do you intend to remain a member of SWAPO?’ came a third question. Namoloh answered yes. As he later explained in a court affidavit:
I was brought back before the Tribal Authority and was asked whether I was still a member of Swapo. I said ‘Yes’ whereupon I was told that I had been found guilty of being a member of Swapo and that I was to receive twenty-four strokes of the Makalani branch … . I was then taken out and later on flogged on the verandah of the Tribal Offices. I was flogged with my trousers on. I was flogged in full view of the public and the Tribal Police.Footnote 2
The weapon used for the flogging was the epokolo, the thorned petiole of the Makalani palm tree. Typically measuring about five feet in length, the epokolo – solid like a cane but with flexibility like a whip – had been the weapon of choice for floggings in Ovamboland for as long as anyone could remember. In order to exacerbate the pain and lengthen their hold over Namoloh's body, the headmen had the designated flogger – a man nicknamed Omeshamaya, meaning ‘Ugly Eyes’ in Oshiwambo – pause between blows, so that a punishment that should have only taken two or three minutes to complete instead lasted for several minutes more. As Namoloh explained to me in an interview:
By the time they reached 9 or 10 blows I felt this terrible pain and then after that I think I decided that this was my fate and they must finish it. I think between 15, 16, 17 [blows] I felt a blackout. And then when they finished I couldn't stand properly from the pain. I was dizzy. But after they finished, they told me, ‘This is a present for SWAPO.’ I was now completely just saying come what may. So I said, ‘If I get a gun from SWAPO, I will shoot you all!’ They said, ‘We will beat you!’ And I said, ‘Yeah, you can do whatever you want now.’ They said, ‘Oh, you are still answering us?’ And I said, ‘Yeah, I will answer you any day.’ So I left.
Namoloh, barely able to walk, was helped to a waiting car where he watched as his colleagues Kamati and Shanjengana were similarly flogged. As Namoloh recalled it for me: ‘I waited in the car because I couldn't move. You know I became an observer. Kamati and Shanjengana were observing when I was being flogged and they were crying. I did not cry. Kamati was the next. When he was flogged, I was crying also. But when myself I was being flogged I didn't cry.’
At a further distance, Namoloh then saw another flogging occur, one which would go unreported in the subsequent accounts of that day. A common criminal, his offense unknown, was being beaten with an epokolo; around him gathered a small crowd, mocking him as the blows rained down on his buttocks and he cried out in pain.Footnote 3
During the long years of South Africa's colonial rule of Namibia, few events galvanized the country like the public floggings of SWAPO activists that shook Ovamboland in 1973. What the traditional authorities had intended to be a shaming of the young firebrands then spreading the gospel of national freedom and armed struggle instead became a source of empowerment for SWAPO members and their allies. As one flogging victim, Johannes Nangutuuala, explained to the Windhoek Advertiser, ‘I am not unhappy about the flogging I received. In fact, I feel very happy about it because it is a great victory for me. First the authorities booted me into jail but this did not harm my political reputation. Then I was flogged and I benefited as a result.’Footnote 4 Underscoring the new energy then pervading the movement, Shanjengana, a school principal, noted how upon his return to work, ‘I was a hero. The children at the school, they lifted me up. So from there I continued to teach them politics and how we wanted the country to be run and why [we were] fighting.’Footnote 5
Public outrage in Ovamboland over the beatings convinced the Anglican and Lutheran churches, the leading religious institutions in the region, to file motions with the Supreme Court in Windhoek demanding that the ‘barbarous’ and ‘untraditional’ use of public corporal punishment against political activists be stopped.Footnote 6 Heeding these arguments, in 1975, the Supreme Court of Appeals in Bloemfontein interdicted the kings and headmen of Ovamboland from flogging members of SWAPO and other anticolonial organizations operating in the region.Footnote 7 The ruling, though viewed as a great victory for the liberation movement, nonetheless concealed a much more complicated and contentious history of public corporal punishment in Ovamboland. Despite the claims made by the applicants in the 1973 floggings case that corporal punishment lacked any basis in customary practice, archival documents and living eyewitnesses to public floggings carried out in the region during the twentieth century suggest that public beatings served as a central source of legitimacy for traditional authorities during the colonial period, as the kings and headmen used their powers to punish in order to castigate and shame young men who had committed a wide variety of offenses – from cattle theft and rape to premarital sex and disrespect towards the traditional authority. While such use of corporal punishment further reinforces Meredith McKittrick's arguments about generational conflict in the region, debates over the proper and improper usage of the epokolo also foreshadow some of the most significant societal divisions that would emerge in the last years of the twentieth century.Footnote 8 This is most evident in Namoloh's account of his own flogging, in which he distinguishes between the beating of ‘politicians’ – regarded at the time and ever since as scandalous in Namibia – and the punishment of ‘criminals’, a discursive category marked not only by thieves, murderers, and rapists, but also by the young, the uneducated, and the poor, the very groups who have struggled to gain inclusion into the ‘imagined community’ of the modern Namibian nation. As I will argue, it is this legacy of division and inequality that best accounts for the widespread nostalgia for colonial-era penalties in present-day Namibia, a country plagued by a growing gap between rich and poor, and a political culture that has only superficially embraced the most progressive edicts of its constitution.
EMERGING FROM SHONGOLA'S SHADOW
In making their case against the traditional authorities, the applicants in the 1973 floggings case insisted that public corporal punishment was a ‘white innovation’ with no authentic basis in Ovambo custom or tradition, having been first introduced by the region's longtime administrator, C. H. L. ‘Cocky’ Hahn, who ruled Ovamboland from 1920 to 1946.Footnote 9 David Shihepo, a Lutheran pastor born in Ovamboland in 1885, declared in his affidavit to the court that ‘[i]t was a notorious fact and generally known in the community, that [the Ndongan King] Shihepo had received instructions from a government official, by name of Hahn, to impose floggings on offenders. As a result of the new policy introduced by Hahn, he became known generally in Owambo as “Shongola Hahn” meaning, “Sjambok Hahn”.’Footnote 10 Likewise, the anthropologist Robert Gordon testified that ‘it appears that corporal punishment in the Okwanyama tribal area was a white innovation brought in by Commissioner Hahn (also known as Shongola, meaning Sjambok) during the 1920s’.Footnote 11
Such assertions are contradicted by archival evidence and written eyewitness accounts from the first decades of the twentieth century. When the German missionary Herman Tönjes traveled throughout Ovamboland in 1907 and 1908, he remarked upon the methods of punishment reserved for thieves, noting that ‘more often than not, a thief who has been caught is given a thorough beating before he is released after having returned the stolen goods’.Footnote 12 Likewise, in January 1917, the Kwanyama king Mandume Ndemufayo reportedly flogged two of his subjects for unknown reasons.Footnote 13 That this should be the case is not surprising, given the prevalence of corporal punishment in a diverse array of societies throughout modern history. Since the landmark publication of Michel Foucault's Discipline and Punish, historians of modern Asia, Europe, and the Americas have explored punitive regimes of corporeality, detailing not only the processes by which corporal punishment has been used to discipline subject populations, but also how such methods have been supported, contested, or negotiated by the local communities within which they exist.Footnote 14
Perhaps due to the legacy of European colonial brutality, scholarly assessments of corporal punishment within African societies have more often than not located such practices within the spectrum of ‘invented traditions’ mobilized by the colonial power, thereby asserting that corporal punishment is another manifestation of white hegemony. In the introduction to their 2006 edited volume Discipline and the Other Body, Anupama Rao and Steven Pierce argue that ‘colonial corporeality was a self-fulfilling prophecy but a troubled one: colonial subjects were ruled through violence; violated bodies were by definition colonial’.Footnote 15 This tendency to view corporal punishment entirely through the lens of colonial governance is evident in Pierce's work on floggings in Northern Nigeria, which situates the practice as an example of the contradictory nature of the colonial project and largely ignores the indigenous context within which such punishments were carried out.Footnote 16 Likewise, recent studies on flogging in colonial Kenya, Malawi, and South Africa have utilized corporal punishment as a window into colonial mentalities.Footnote 17
Such interpretations, while valuable, fail to address the social reality of punishment, its role in enacting a kind of communal vengeance, and thus the critical function it often played in allowing indigenous elites, even as their authority had been eroded by economic, political, and religious changes brought about by European occupation, to nonetheless maintain a degree of legitimacy among their subjects.Footnote 18 Such an intervention into the growing historiography on corporal punishment in modern Africa has been made possible by the oral interviews I conducted with ordinary men and women who witnessed or participated in public floggings during the colonial period. Collected through networks of local contacts in the Ndonga, Kwanyama, and Kwambi communities of Eastern Ovamboland over several months in 2009, my interviews centered on one basic question: ‘How were people who committed crimes punished during the colonial era?’ The resulting conversations revealed that the institution of flogging was not simply regarded as a brutal colonial imposition, but rather functioned as an important community institution that granted legitimacy to kings and headmen while also providing an outlet through which men and women living in the region could participate in the punishment of criminals who had violated the social order.
Oral histories, like all sources, carry their own strengths and weaknesses – in particular a propensity to read concerns of the present into events of the past. Yet in the case of the institution of corporal punishment, they also provide bodies of knowledge that heretofore simply could not be accessed through archival evidence, or which have been submerged within the vastness of the colonial record.Footnote 19 In addition, even the most energetic colonial administrators could not possibly keep track of the daily modes of judicial practice used at the local village level, and when they were aware of particular cases, only occasionally did they comment upon modes of justice deemed ‘traditional’ and thus technically outside the purview of colonial oversight. Furthermore, colonial records for Ovamboland become sparse after the mid-1950s, when the South African state's operations in the region simultaneously became both more repressive and more secretive. Yet because of the time period when I conducted my oral interviews, the vast majority of my subjects were most knowledgeable about methods of punishment deployed by the traditional authorities in the 1950s, 1960s, and 1970s (although some could recall events from as early as the 1930s), precisely when the colonial archive grows silent. Thus, while in making use of these oral accounts I am careful to cross-check particular representations with other available evidence – including oral, archival, and previously published material – and while I am cognizant of the fact that very often oral histories tell us as much, if not more, about the present than they do about the past, I also insist upon the usefulness of this kind of evidence for understanding a history that has largely evaded both the archive and previous scholarship constructed through engagement with that archive.
Attention to the history of corporal punishment in Northern Namibia also enables a much-needed correction to the heavy emphasis on the policies and attitudes of white officials in the scholarly literature on Ovamboland, to the point where traditional authorities are reduced to puppets, mere appendages to the colonial state and its interests. In his 2001 survey, Ovambo Politics in the Twentieth Century, Allan D. Cooper argues that the colonial economy's demand for Ovambo labor ensured that the traditional authorities of the region were either coopted or, if found to be noncompliant with the South African agenda, removed from power.Footnote 20 This was indeed the fate of both Mandume Ndemufayo, the Kwanyama king killed by a South African expeditionary force in 1917, as well as the Kwambi King Iipumbu ya Tshilongo, who was removed from power in 1932. In both cases, independent-minded Ovambo royalty were replaced by councils of headmen, whose lack of legitimacy, in Cooper's telling, contributed to the steady and irreversible decline of indigenous authorities in the region.Footnote 21
Yet the role played by the kings and headmen was far more ambiguous than this Manichaean formulation suggests. Indeed, as Cooper notes, white officials did not view their powers as absolute, particularly when it came to criminal cases. Despite a formal hierarchy of courts that extended from the region's sub-headmen all the way to the native commissioner, colonial officials were forced to admit that in practice the justice system rarely functioned as intended.Footnote 22 In this respect, Ovamboland did not follow the pattern laid out by Martin Chanock in his groundbreaking 1985 study Law, Custom, and Social Order. In that text, Chanock argues that African legal customs, once plastic and fluid, were ‘crystallized’ by the power of the written word, which swept throughout European-controlled Africa, contorting indigenous legal practices and thereby transforming them into instruments of colonial governance.Footnote 23
Critically, this did not happen in South African-controlled Ovamboland. In a space designated as ‘outside the Police Zone’, and thus technically beyond the boundaries of Western legalism, the precise outline of the ‘customary’ remained undefined, and was often improvised on a case-by-case basis. As we will see, this occurred despite the periodic efforts of colonial administrators to bring ever-greater degrees of European rationality to the process of African punishment. Repeatedly throughout the twentieth century, efforts by white administrators to codify and centralize the punitive arm of the state ran aground in Ovamboland, where kings and headmen seized the initiative by successfully asserting their right to punish their subjects in almost any manner (save execution) they deemed fit. What the evidence makes clear is that one critical result of the lack of codification of customary laws and sentencing in Ovamboland was the encouragement of traditional authorities to determine, often on a highly improvised basis, the contours of judicial punishment. In doing so, the kings and headmen of Ovamboland had to respond not just to the constraints placed upon them by the colonial authorities, but also to the expectations of their subjects that criminals be dealt with, harshly if necessary. Thus a kind of political legitimacy – rooted more in local expectations than in colonial sanctioning – coalesced around the judicial powers of the traditional authorities during the colonial period.
By invoking the specter of ‘Shongola’, the plaintiffs in the 1973 floggings case sought to elide this history, in order to pin the blame for public corporal punishment in Ovamboland on the legacy of Hahn. To be sure, the rugged and egocentric administrator made an enticing target for such accusations. As Patricia Hayes has noted in her outline of Hahn's career in Ovamboland, the South African-born progeny of Christian missionaries earned the nickname ‘Shongola’ for his use of the sjambok on line-jumpers during famine relief operations in the region in 1915 and 1916, and throughout his 26-year career as native commissioner of Ovamboland, he deployed both physical force and regimes of ethnographic knowledge in order to dominate populations under his rule and reshape indigenous African political systems.Footnote 24 Viewing her subject in this way, it is thus unsurprising that Hayes reiterates the claims of the applicants in the 1973 floggings case that institutions of public corporal punishment in Ovamboland were nothing more than ‘invented traditions’ largely concocted by Shongola and his black acolytes.Footnote 25
To be sure, there is little doubt that Hahn deployed corporal punishment during the early years of his rule in Ovamboland. A 1925 investigation into allegations that Hahn had kicked an African girl between the legs uncovered the native commissioner's reputation for physical brutality, with one investigator reporting that: ‘I have questioned several natives as to why they call Mr Hahn “Shongola”, and they have told me [they call him that] because he uses the sjambok.’Footnote 26 Additionally, Hahn himself admitted that his administration had overseen the use of corporal punishment in the region, declaring in 1925 that ‘in very extreme cases natives were punished either by fining them in cattle or, in very rare instances, sentenced to receive a caning with an ordinary palm stick’.Footnote 27
While the applicants in the 1973 floggings case seized upon Hahn's association with the sjambok to suggest a wider influence on practices of corporal punishment in the region, I contend that the significance of the term Shongola lies not in the fact that Hahn was known to administer corporal punishment, but rather with the tool he used to beat offenders. What evidence we have suggests that the sjambok – typically fashioned from the tail of an animal, often a cow or rhinoceros – emerged among the Cape Dutch as early as the seventeenth century, and was derived from the Indonesian term cambuk, brought with the first Malaysian slaves to arrive at the Cape.Footnote 28 This was the instrument used by Hahn that first earned him the nickname Shongola, but critically it is not the same weapon Hahn refers to in the above statement. The ‘palm stick’ referenced above is undoubtedly the epokolo. It is telling that Hahn was known as ‘Shongola’ rather than ‘Epokolo’, as the former is a term of foreign origin that refers to an object most commonly associated with white authority, while the latter was part of a palm tree found ubiquitously throughout Ovamboland, but scarcely anywhere else in South West Africa. The epokolo or ‘palm stick’ was almost always the weapon used in cases of corporal punishment inflicted under the sentence of a traditional authority; whereas beatings meted out by white officials, as frequently happened inside the Police Zone, were always done with a sjambok and never with an epokolo. This distinction has persisted to the present day, where informants who have experienced corporal punishment both inside Ovamboland and elsewhere in Namibia associate the sjambok or whip with white penality, and the epokolo with African discipline. As Ipundaka Amomo, who witnessed beatings both in Ovamboland and in the Police Zone, concisely put it, ‘[t]hose [criminals] in Ovamboland will be beaten with omapokolo [the plural form of epokolo]. Those who are in the south will be beaten with whips.’ Amomo also refused to identify Shongola as the inspiration behind the epokolo, observing, ‘[t]he headmen were hitting people on their own initiative. They are the ones who decided.’Footnote 29
The words of Amomo and many other Ovambo informants who situate corporal punishment within its indigenous context thus contradicts Hayes's assertion that ordinary Ovambos have singled out and blamed Shongola for the region's long history of corporal punishment.Footnote 30 Likewise, archival records demonstrate that Hahn himself took an ambivalent view of the practice. Despite declaring in 1925 that he had succeeded in abolishing public flogging in 1922 or 1923, the archival record indicates that the practice continued throughout his reign as commissioner. In April 1941, Hahn reported that ‘during the whole of last year lashes were given on very few occasions'. Yet he also stated that ‘[f]or a time such punishment … were [sic] stopped altogether but ruling natives have always asked that some form of deterrent should be reestablished and that lashes might be given in serious cases. This is the practice today …’.Footnote 31
Such estimations can be misleading, for despite Hahn's attempts to portray himself as the all-seeing white patriarch of Ovamboland, in fact archival records indicate that his work primarily focused on the relationship between the colonial administration and the most senior kings and headmen in the region. As a 1946 review of Hahn's duties reported, ‘[t]he Native Commissioner does not exercise any judicial function except in cases of appeals from the Tribal Courts who deal with the more serious and difficult criminal and civil cases. Minor matters are dealt with by the Headmen and Sub-Headmen of each area.’Footnote 32 Because the region of Ovamboland comprised some 16,216 square miles, an area nearly twice the size of the state of Maryland, it was scarcely possible for even the most enterprising official to effectively monitor every village in the region, particularly when travel was often impeded by bumpy dirt roads that were rendered impassable during the rainy season. For this reason, Hahn's characterization of the frequency of corporal punishment in Ovamboland should not be taken as authoritative, especially since the judicial system in place had already designated that ‘minor cases’ be dealt with by local headmen. Further, the white-supervised appeals court located in Oshikango in the Kwanyama region scarcely heard appeals of flogging sentences, precisely because flogging was by its very nature the type of punishment that, once carried out, could never be overturned or reversed. In addition, because the traditional authorities of the region did not have prison facilities available to them when passing sentence against criminals, the repertoire of punishments they had at their disposal was generally limited to levying fines, imposing sentences of flogging with the epokolo, or, in especially serious cases, banishment from the region.
Nonetheless, the handful of cases involving corporal punishment that did merit Hahn's attention are very instructive, for they show a colonial administration that took a downright contradictory stance towards the practice of flogging. These cases also show that it was often the traditional authorities who most energetically pushed for the right to flog their subjects. That this should be the case is not particularly surprising, given the existing restraints placed on the traditional authorities by the colonial state. Whereas during the precolonial period the most spectacular forms of punishment deployed by the kings and headmen encompassed the power of life and death over subjects and enslavement for particularly notorious crimes, soon after Hahn and his subordinates arrived in the region, slavery had been abolished and the death penalty had been reserved for the colonial power.Footnote 33
Throughout the 1930s, 1940s, and 1950s, colonial officials struggled to define the parameters of acceptable custom, and whether the practice of corporal punishment ought to be barred, tolerated, or actively encouraged. In his monthly report for June 1933, Hahn reported an incident in which he prevailed upon headmen in Mbalantu to forego the planned flogging of several men who had attacked a headman for ordering the banishment of another former headman, named Ishiposha, from the territory. When five of Ishiposha's followers were brought to trial, the Mbalantu headmen fined each three head of cattle and had their kraals confiscated. Yet these punishments alone did not satisfy the headmen, as Hahn reported:
Feeling against these people ran very high at the meeting at times. The headmen who tried the case wished to have them flogged there and then in addition to the fines. As it was considered that the fines of cattle and ejection from kraals was sufficient punishment to meet the case the headmen and natives present were advised to let the people concerned go after they had paid the fines.Footnote 34
Yet if colonial administrators sometimes prevented traditional authorities from flogging criminals, they also routinely ignored the protests of individuals who had already been flogged by headmen. In a 1942 case reported to Hahn by his official at the Oshikango court, a Kwanyama subject by the name of Makili was charged with having escaped from custody after his arrest for making threatening statements to one headman and illegally tapping palm trees for wine. According to the assistant native commissioner at Oshikango:
On the day Makili was brought back to Oshikango, a number of Headmen were sitting with me as assessors on an appeal case. Headman Nehemia there and then laid a charge against Makili for escaping from custody. The case was heard by headmen Cornelius, Lazarus, Bermon, Tshapa, Nepadee and Heita. Makili was found guilty and it was ordered that he should receive 12 strokes with a green palm stick. Messenger Jacob was instructed by the Headmen to carry out the order.Footnote 35
When Makili subsequently complained to the chief native commissioner in Windhoek, Hahn defended the sentence, stating, ‘the headmen have a perfect right to inflict this punishment. Makili had a fair hearing before it was imposed.’Footnote 36 Likewise, in 1944, the assistant native commissioner at Oshikango received a complaint against one particular headman, named Johannes Shekudja, who had flogged a man named Abraham Haihambo for allegedly stealing a saw. While the assistant native commissioner admitted that ‘there is a very strong doubt as to whether this man should have been convicted of theft’, he nonetheless concluded that ‘he has already received the flogging so that nothing can be done about that’.Footnote 37 For traditional authorities who often found their decisions subject to overrule by white administrators, flogging was the one sentence they had at their disposal that could not be reversed.
Despite allowing the traditional authorities some space to render their own judgments and determine their own punishments, the colonial administration also knew that it had to keep the kings and headmen in check, lest they become too independent and thus a threat to white authority in the region. This is why Mandume Ndemufayo was killed in 1917 and replaced by a council of headmen. It is also why, in 1932, the Kwambi King Iipumbu Ya Tshilongo was removed from power after threatening Finnish Christian missionaries stationed at Olukonda. And it is why, in December 1939, the colonial administration targeted another recalcitrant traditional authority, King Martin Kadhikwa of Ndonga, who had refused to hand over two accused murderers to the colonial authorities. Martin's attempt to punish the criminals himself led the colonial government to deploy a show of force to the region, which resulted in Kadhikwa recognizing the primacy of the colonial state in all cases involving murder and rape. The two murderers were subsequently put on trial by a white court in Grootfontein.Footnote 38
Despite this confrontation, archival records show that the colonial state routinely deferred to the traditional authorities in similar cases of murder and rape, both prior to 1939 and long after the controversy had faded from memory. In April 1938, a twenty-year-old man named Tapopi living in the Kwanyama area allegedly raped a seven-year-old girl. After the incident was reported to the local headmen, the case was referred to the native affairs officer in Oshikango. However, when told that Tapopi would be taken to Windhoek and tried by the High Court, the headmen protested. As the officer later reported to Hahn:
After deliberating for a while, their spokesman requested me to approach the Administration so that they may be given jurisdiction to try this case. They pointed out that complainant was a very small child and that accused was only a youngster. They were unanimous in recognizing the seriousness of the crime and states [sic] that if accused was found guilty he would be most severely punished by them if given jurisdiction to try the case. When asked what they meant by serious punishment, they advised me that he probably would be fined seven head of cattle and ordered to receive at least fifteen lashes. The feeling was that if accused could be publicly punished in the Tribal area, it would be a far greater deterrent to crime than if he was found guilty in Windhoek and sentenced to a term of imprisonment to be undergone at that centre.
This argument persuaded the native affairs officer, who recommended that Tapopi be tried by ‘native custom’ as a ‘deterrent effect’ against such heinous crimes in the future. Hahn agreed, writing that ‘the case can be disposed of by the Native Council without reference to the [Attorney General]’.Footnote 39
Given the extent to which the case against Tapopi was discussed in the colonial files, one might reasonably assume that the handling of his punishment was extraordinary. In fact, archival documents reveal that a large number of cases involving murder and rape were handled by the traditional authorities, both during Hahn's tenure as commissioner and afterwards. In most instances, the documents simply state that a given case would be handled ‘according to native custom’, without elaborating on exactly what that term might mean. However, those cases that do refer to the method of punishment used for murderers and rapists suggest that, for serious crimes, ‘customary’ punishment often involved a flogging with the epokolo. Thus in 1948, two youths charged with raping a young girl were fined two head of cattle by a ‘tribal’ court and given six strokes with ‘a palm stick’. The following year, a man who had stabbed a sub-headman with a knife was fined four head of cattle and given ‘fifteen lashes with the palm stick’.Footnote 40 Though such punishments were not routinely recorded in colonial documents, references to them can be found throughout the archive, suggesting that they were a regular form of punishment for serious offenses in the middle decades of the twentieth century.
INDIGENOUS CONCEPTIONS OF CRIMINALITY IN COLONIAL OVAMBOLAND
Those who lived in Ovamboland during the 1930s, 1940s, and 1950s recall corporal punishment as being a routine fixture of village life, deployed by headmen and sub-headmen not only at such white-supervised courts as at Oshikango, but also in remote hamlets far from the prying eyes of colonial administrators. My informants were also clear that flogging could be administered not only to thieves, rapists, and murderers, but also to those who disrespected the traditional authorities, those who, in the words of Kashuupulwa Kaitanus, were doing ‘funny things that people [were] not happy with’; those who, in an oft-repeated phrase, were ‘full of shit’ (ouna omatundi or ouna omanyami).Footnote 41
What did it mean to be ‘ouna omatundi’ (‘full of shit’)? This phrase seemed to primarily refer to young men who were ‘stubborn’, who refused to admit that they were guilty of any crime. As Joseph Nghinamhito put it to me, ‘[b]eating was only when a person was showing his stubbornness, and talking shit. That's when he is beaten.’Footnote 42 Or as Antanga Yamushila explained, ‘[i]f a person did not admit to doing a crime, they would say this person is full of shit. Whether he is guilty or innocent, they will still give him five or six omapokolo, just to teach him a lesson.’Footnote 43 This especially occurred in cases where a boy was accused of having impregnated a girl but refused to accept responsibility. As Andreas Shipanga, later a leading figure in SWAPO, recalled one case, ‘I mean, for example, the case the one I witnessed, that boy was stupid and arrogant. He definitely needed to be flogged. The arrogance was too much. The little girl was in tears and he was talking shit. I felt it was good that he was flogged. He was too much.’Footnote 44 In this way, the epokolo operated as a means of restoring a moral order that had been momentarily threatened by divergent accounts that seemingly could not be reconciled with one another. Simeon Simon, a frequent observer at such cases, recalled that ‘[m]aybe if you took somebody's cattle or somebody's goat, they go to the headmen and then they will come and have the hearings. And maybe you are there and you are denying that you didn't do it, and they say, “Yeah, you are full of shit”, and that's when they beat you up. The councilors and the headmen decide so [you] can be beaten up.’Footnote 45
Listening to such accounts, one gets the sense that not only were the headmen consulting with one another in order to determine how to deal with a particular case, but they also could be influenced by members of the audience, who would often express impatience with individuals who seemed particularly stubborn or dishonest in their testimony to the court. As Abraham Indombo remembered of the cases he witnessed in Ohangwena, ‘[i]t wasn't always the case that one headman would be deciding. Even a person who came to watch him can also decide. He can be strong and stand up and say, “No, let's do this to this person.” Then they will agree with that person.’Footnote 46 It was this communal act of punishment, which the applicants in the 1973 floggings case would criticize for being uncivilized and demeaning, that was in fact one of the most appreciated aspects of the practice of corporal punishment in the region during the colonial era. As Keshii Nathanael, later to serve as the SWAPO Youth League president, remembered of the punishments he witnessed as a child in the 1950s,
[w]hen something happened, the elders held a council, would meet under the tree, and they would discuss what to do about the whole thing. That's before the trial would start. And then there was a trial. And everybody would be informed. It was the kind of justice you could understand and respect. It was not done by a single person. It was not done behind a mask. It was done deliberately and openly among the members of the society.Footnote 47
Such voices, even while they may romanticize the past, are central to understanding the operation of punishment during the colonial period. As should be apparent, the use of the epokolo is rooted in the region's history in complex ways, and cannot simply be ascribed to the violent predilections of Shongola and his whip. Nor can archival documents, which mainly include elite perspectives, fully capture the power dynamics at play in the use of the epokolo. As the testimony of many oral informants makes abundantly clear, the use of corporal punishment in Ovamboland was not simply a top-down imposition from either the colonial or the traditional authorities; it was rather the end-result of a long process of negotiation among a colonial state that wished to empower kings and headmen in limited ways, traditional authorities who looked to buttress their own legitimacy through the power to punish, and ordinary men and women of the community who actively demanded that criminals and young men who were ‘full of shit’ be dealt with harshly.
Thus, what emerged by the middle decades of the twentieth century was a kind of social contract through which traditional authorities used violent methods in order to deter crime. Yet critically, this social contract was unwritten, and thus subject to widely varying interpretations on its scope and nature, readings that were often formed through local experience. This is particularly evident in the wildly varying representations of the limit on the number of strokes of the epokolo that headmen were allowed to give as punishment. Cecilia Angolo remembered that the limit for judicial flogging was ‘two or three’, while Sakaria Shahamena Shitaleni placed the limit at thirty.Footnote 48 Despite such drastic differences, there was widespread agreement that headmen had the authority to flog both criminals and the ‘stubborn’. It was through such precedents that, during the 1970s, political activists would also be flogged. Yet it was also here that the unwritten social contract that had enabled the headmen to use the epokolo throughout the twentieth century would break apart, and the traditional authorities would find that their power to punish, though unconstrained by any written law, was not in fact as unlimited as they imagined it to be.
LIMITING THE POWER TO PUNISH: THE CASE OF LYSIAS VAINOS
During his eight-year tenure (1946–54) as native commissioner of Ovamboland, Harold Eedes attempted to introduce government salaries for the traditional authorities, in the hope that direct government employment of kings and headmen would ensure their absolute obedience to the colonial state and the ‘fair treatment’ of their subjects. Although Eedes's proposal fell on deaf ears, by the early 1960s the implementation of apartheid policies throughout Namibia caused the colonial state to move forward with plans to transform Ovamboland into one of ten ‘Bantustans’ in the territory. In 1964, the Odendaal Plan established a blueprint for Ovamboland's future, and a timeframe during which the region could transition towards a state of quasi ‘independence’ similar to that anticipated for the so-called ‘self-governing homelands’ within South Africa. As in other Bantustans, the traditional authorities of Ovamboland would play a central role in presenting to a skeptical international audience a contrived and gerrymandered African independence.
Even as the enactment of the Odendaal Plan carried the collaboration of the traditional authorities to new heights, the lack of codification of ‘customary law’, especially as it related to the power to punish, continued to cause problems for the territory's white rulers. In April 1966, the king of Ndonga, Martin Ashikoto, dealt with one habitual thief, a 39-year-old man named Lysias Vainos, in a manner unprecedented in the history of colonial Ovamboland: in addition to having him beaten repeatedly with the epokolo, Martin had Vainos's eyes put out with a hot awl. The incident remains notorious to this day in Ovamboland, where people are often hesitant to speak of Ashikoto's reign, so renowned did he become for his cruelty. It also came at a critical juncture in South Africa's occupation of Namibia, occurring the same year that the United Nations passed a resolution withdrawing its recognition for South African rule in the territory and the same year that SWAPO initiated armed struggle against the colonial state. In such a context, the South African government could ill-afford the scandal that public revelation of Vainos's punishment might bring. After some deliberation, and in one of his final decisions as prime minister, the soon-to-be-assassinated Hendrik Verwoerd ordered that Ashikoto be brought to justice before a white court.Footnote 49
Ashikoto's subsequent summary trial, conducted from March to June 1967, took place within the context of the colonial administration's unfolding plan for Ovamboland, which called for the traditional authorities to comprise an Ovambo Legislative Assembly that would serve as the de jure political authority in the region, even as white administrators in Windhoek and Pretoria continued to pull the strings. Yet the details that emerged at Ashikoto's trial demonstrated that the dynamics of power in Ovamboland were far more complex than the master/puppet relationship that such an arrangement implies.
To this day, Ashikoto is remembered throughout Ovamboland as the king who put out the eyes of a thief, yet evidence presented at the trial demonstrates that the reality was far more complex. On 21 April 1966, Vainos was arrested by an Ndonga headman for stealing money from Martha Angolo, one of the wives of Ashikoto. This was not Vainos's first offense – previous thefts had led the king to banish him from the territory and into Portuguese-controlled Angola, but according to testimony given during the summary trial, the Angolans ‘chased’ Vainos back into Ovamboland.Footnote 50 Anna Vainos, the thief's younger sister, also testified that the king had attempted to deal with her brother by administering a flogging with the epokolo that was of a severity far beyond any other case I have uncovered in all my research on the institution of corporal punishment in Ovamboland. According to his sister, during a span of one week Vainos had received twenty cuts on a Monday, eight cuts on a Tuesday, twenty on a Wednesday, eight on a Thursday, twenty on a Friday, and ‘so it went on for the week’, totaling at least 76 cuts, more than double for any other punishment revealed by my research.Footnote 51
Yet in this case, the epokolo seems to have failed as a deterrent, for Vainos continued stealing. According to Vainos's elder sister, her brother's crimes were an embarrassment to the family, as Vainos was mocked everywhere he went with calls of ‘there goes the thief’.Footnote 52 His family members were called upon to compensate his victims with large payments in cattle, as Vainos himself lacked the means to pay off any court-imposed fines.Footnote 53
After his arrest, Vainos was taken to a nearby cemetery, handcuffed, and tied to a tree, where he remained in a state of extreme pain for the next several days. On 23 April, according to testimony given in the summary trial, the king met with Vainos's family and, after discussing the possibility of amputating one of Vainos's legs or arms, ultimately decided to have the thief's eyes put out, so that he would not be able to steal ever again.Footnote 54 Two days later, Vainos was blinded when he was held down by a headman, and his own mother, a 74-year-old woman named Bertha Juvela, heated an awl and stabbed her son in both eyes. Reportedly Juvela's hand shook badly during this procedure, and so Vainos's older sister, Maria, ‘held the hand of her mother to steady it because of the excessive trembling’. According to the Windhoek Advertiser, one of the headmen also ordered Vainos to ‘look straight so that the pupils could form the target of the awl’.Footnote 55
In many ways, the case of Lysias Vainos is so extraordinary and unusual in the history of colonial Ovamboland that we must be wary of drawing any broader conclusions from it. During the trial, several witnesses contradicted one another on whether the idea to put out Vainos's eyes originated with the thief's family or had been forced upon them by the king. Maria Vainos testified that her mother had argued against such a draconian punishment, while the thief's younger sister Anna testified that blinding her brother had been her mother's idea, or rather, a suggestion from the king that she had endorsed, reportedly deferring to him by saying, ‘[y]ou are the captain and the law.’Footnote 56 For her part, Bertha Juvela, also put on trial for serious assault, testified that she had ‘told the Chief that should we cut off a leg or arm, we would not be able to stop the bleeding and therefore I suggested that we remove the eyes’.Footnote 57
Curiously, in the popular oral histories of Vainos's punishment, the role of his mother in the blinding has been entirely erased, just as those few written sources that reference the case have likewise deleted the family's participation in Vainos's gruesome sentence.Footnote 58 Indeed, a closer examination of evidence presented at the summary trial complicates the common perception of Ashikoto as a sadistic ruler; clearly he felt pressure to prevent any future thievery by Vainos, a goal made more difficult by the lack of prison facilities available to him at the time of sentencing. In his own testimony at the summary trial, Ashikoto contended that removing Vainos's eyes had been the idea of the thief's family. As he explained, ‘I did not want to say no, you should not do it, because many people were present. If they had heard me saying “no”, and Vainos committed another theft, then I would be responsible for his crimes.’Footnote 59 Having already severely flogged and attempted to banish him from the region, the king thus turned to more radical measures.
Ashikoto's decision to blind Vainos was not endorsed by all members of the community, nor did all of his senior headmen approve of this unusual punishment. In testimony given at the summary trial, Philemon Shilongo, a 67-year-old headman who also held down a position with the colonial state in the Department of Bantu Affairs, said that he had advised against blinding the prisoner, instead convincing the king to write a letter to the region's Bantu commissioner, seeking guidance on how to dispose of the case. Yet clearly Ashikoto was not convinced by this course of action, for on the same day that the Bantu commissioner received the letter, and before the commissioner could reply, Ashikoto had the blinding sentence carried out by the thief's mother, thus ensuring that the colonial state would not be able to override his authority.Footnote 60 Once again, the direct and irreversible nature of corporal punishment proved all too tempting for a traditional ruler looking to maintain his authority over subjects who still regarded him as ‘the captain and the law’.
Evidence presented at the summary trial shows that Ashikoto took this almost unprecedented action with a highly theatrical seriousness of purpose. Multiple witnesses testified that, after the sentence was handed down, the king asked for water and then washed his hands, reportedly announcing, ‘[n]ow I have washed my sins from my hands.’Footnote 61 The implied reference to Pontius Pilate was surely deliberate, for Ashikoto also produced a Bible, reading ‘a verse or two … where it is said that should an eye or a leg or an arm entice one to do something wrong then it was better to have such an arm or leg or eye removed because this was preferable to be[ing] condemned to hell’.Footnote 62
As these details of Vainos's punishment make clear, in its daily enforcement traditional authorities were quite capable of enacting a syncretic penality that drew liberally from multiple sources, including Christianity, historical precedent, and the exigencies of a judicial system that gave the kings and headmen considerable leeway in improvising punitive solutions that could serve as a deterrent to crime in their communities. Even in the midst of a colonial era that saw the South African state attempt to gain ever greater control over the actions of its African collaborators, the uncodified character of customary law gave the traditional authorities of Ovamboland a powerful tool through which they could maintain some autonomy from the colonial state, and some legitimacy among their own subjects, who continued to see in the figures of the kings and headmen a literal embodiment of ‘the law’. That this penality so often coalesced around corporal punishment was surely due in part to its irreversible nature, to the fact that its ‘texts’ were permanent – neither the scars from the epokolo nor the blasted out eyes of a criminal could ever be fully healed by the agents for the colonial state. Not even the white man's doctors could do more for Vainos than to restore 10 per cent of his sight in one of his two eyes.Footnote 63
Yet ultimately the power of traditional authorities to carry out sentences of corporal punishment was not as unlimited as they imagined it to be. Within the context of Ovamboland and the ‘minor cases’ that the colonial state had reserved for the kings and headmen to deal with, it could very much appear to be the case that a ruler like Ashikoto was ‘the captain and the law’. In almost all cases, he was exactly that. But when flogging and banishment failed to deter Vainos from thieving, Ashikoto turned to harsher measures and thus discovered the real limits placed on his power to punish. Soon after Vainos was blinded, word of the punishment reached the editor of the Windhoek Advertiser.Footnote 64 The South African government convinced the paper not to run the story while it considered its response. Public revelation of the king's actions was sure to provoke scandal, especially given the state's simultaneous efforts to promote an Ovamboland ‘independence’ that would be guaranteed by the authority of rulers like Ashikoto and the deputies who had helped him carry out the blinding of Vainos. This was sure to make a bad impression on a skeptical international community that was in the process of withdrawing its endorsement of South African rule in Namibia, and so the decision was finally made to remove Ashikoto from power and bring him before a white court in the Police Zone. We are not privy to the details of the discussions that led to Ashikoto's summary trial, but the long delay between the blinding of Vainos and the arrest of the king suggests that the South African regime's primary concern was not that Ashikoto had lost legitimacy among his own subjects, but rather that the international revelation of the punishment would undermine South Africa's Bantustan strategy for the region. After a trial that dragged on for several weeks, in June of 1967 Ashikoto was given a suspended sentence and formally deposed as ruler of Ndonga.Footnote 65 A new king, Paulus Elifas, was promoted to replace him. In October of the following year, Ovamboland was declared to be a ‘self-governing’ territory led by an Ovambo Legislative Assembly, of which Elifas was one elected representative.Footnote 66
If the above interpretation is correct, then Ashikoto was likely done in not by the brutality of his assault on Vainos, but rather by the evolving political situation in Ovamboland and the rest of Namibia. During the 1960s, the rise of SWAPO had forced the South African colonial state to more aggressively push a quasi ‘independence’ on Ovamboland. It was this strategy that SWAPO would disrupt by organizing a boycott of elections for the Ovambo Legislative Assembly in 1973. When the traditional authorities responded to this threat with the epokolo, they encountered a new limitation on their power to punish. Whereas the scandal of Ashikoto had demonstrated the vulnerability of the kings and headmen vis-à-vis their white patrons, the 1973 floggings scandal would expose the critical role that popular acceptance of corporal punishment had played in maintaining the legitimacy of the traditional authorities throughout the colonial era. In targeting SWAPO activists with the epokolo, the kings and headmen of the plains would attempt to portray their adversaries as just another in a long line of stubborn young men who were ouna omatundi. But to many in the region the articulate young firebrands who emerged to challenge the traditional authorities were something else altogether. By the time the 1973 floggings scandal had reached its conclusion, there could be no doubt that the era of ‘politics’ was fully at hand.
CORPORAL PUNISHMENT AND THE POLITICS OF NOSTALGIA
Following the Supreme Court of Appeal's ruling in 1975, public corporal punishment appears to have disappeared from Ovamboland, and upon Namibia achieving its national independence in 1990, the practice was ruled unconstitutional in light of the new republic's declarations on the abolition of ‘cruel, inhuman, or degrading treatment or punishment’.Footnote 67 Yet for many of the older men and women living in Ovamboland, the imposition of these changes has not been entirely welcome. After all, the scandal that emerged in the wake of the 1973 floggings did not represent a new consensus that flogging itself was unacceptable, but rather introduced a new discursive categorization, within which the activities of ‘politicians’ were protected while ‘criminals’ remained legitimate targets for public abuse and scorn. As Tomas Ashiana explained, ‘[y]es, epokolo was only used for criminals, but if you are talking about politics they will hit you with the epokolo and they will take you to jail. They were misusing the epokolo.’Footnote 68
In line with Ashiana's position, my research uncovered widespread nostalgia for the days when criminals and young arrogant men were thrashed with the epokolo, the disappearance of which has been blamed for the rising crime rates of the post-independence era. ‘The epokolo was good’, Kashuupulwa Kaitanus told me. ‘People would [watch] and they were afraid. But now crime is high, because there are no more omapokolo. If you just buy your sugar now, people will come and steal your sugar.’Footnote 69 Commented another: ‘Prison is useless because people will just go and eat nice food. They are even eating eggs and they have shelter and everything.’Footnote 70 And still another: ‘The country has torn apart. The botsotsos [criminals] are just doing whatever they want. And then they go in jail and come out after a week and nothing happens.’Footnote 71
How are we to interpret such fondness for the epokolo, such disgust at the shortcomings of national independence? As Kenda Mutongi has argued, such opinions can serve as windows into the failures of African governance, and also shed light on the ability of Africans to take advantage of more paternalistic systems of colonial rule.Footnote 72 Yet I also think that this nostalgia for a seemingly brutal form of punishment should cause us to reexamine our assumptions about the adaptability of Western punitive methods in foreign contexts. As the Soviet legal sociologist Evgeny Pashukanis pointed out long ago, the Western legal system developed from within the specific environment of an emerging capitalist society, where ‘freedom’ meant the ability to sell one's labor for a specified period of time. Deprivation of this freedom through a prison sentence of a fixed length thus served as punishment against the (undoubtedly idealized) Western legal subject.Footnote 73 But what does it mean to deprive someone of such ‘freedom’ when they live in a society with extremely high levels of unemployment and poverty, and where the food, shelter, and security rumored to be provided in prison exceeds the comforts often found in the poorest and most rural areas of Ovamboland? It may be that my informants, living at the economic margins of what is by most estimates one of the most unequal economies in the world, are uniquely sensitive to the failures of citizenship in postcolonial Namibia, and thus see in the prison the emergence of an impersonal institution that is at odds with the communal methods of discipline associated with the epokolo. The greater tragedy, though, is the perception among my informants that they are powerless to reshape their society in ways that are consistent with their own values. All speak of an omnipresent, impersonal, and alien ‘law’ that has dictated the boundaries of the possible, fostering a deep sense of resignation about the rise of criminals in their communities, and the failures of an unaccountable political leadership. As Johannes Mbowa put it to me, ‘[i]t's already too late. We let the dogs come out of the house.’Footnote 74
But if the politicians, bearers of Western-derived laws that have abolished corporal punishment, have banished the epokolo from the realm of judicial – and public – punishment, in typically unrecorded ways, communities in Ovamboland continue to insist on its relevance: against lax scholars in school and as a kind of vigilante justice, deployed against criminals who have been accosted by the public but not yet arrested by the police.Footnote 75 Each of these uses and more continue to mark the epokolo as a symbol of power and justice, albeit one that has been more consigned to the shadows than it was on the fateful day Ndaxu Namoloh, later to become Namibia's minister of defence, took a pen to his clothes and, for that, was granted his own opportunity to face the epokolo.
