Out of Africa

Two African scholars strengthen Emory's programs in international law

By Allison O. Adams

Last fall, two scholars from opposite ends of Africa arrived at Emory's School of Law within the same week, bringing to the University expertise in international law as well as compelling personal stories of persecution in their homelands. Both Johan Van der Vyver of South Africa, I.T. Cohen Professor of International Law and Human Rights and a fellow in Emory's Law and Religion Program, and Abdullahi Ahmed An-Na'im of Sudan, professor of law and a fellow in the Law and Religion Program, are authorities in comparative constitutional law, human rights, and issues in law and religion.

"[Their simultaneous arrival] was partly coincidental, yet it was part of a larger plan," says Dean of the School of Law Howard O. Hunter. "Two areas we've been trying to strengthen are international law and the Law and Religion Program. Having Professor Van der Vyver and Professor An-Na'im at the same time is simply wonderful. They bring a breadth to our international law and Law and Religion programs that probably no law school in the country could match."

A leading scholarly advocate for reform in South Africa, Van der Vyver was driving into Pretoria on February 2, 1990, when an announcement from then-South African President F.W. de Klerk came over the radio: African National Congress leader Nelson Mandela was to be released from prison after twenty-eight years, and reform leading to the end of apartheid was to begin. Van der Vyver slammed on his brakes, turned his car around, and sped back home. "I just had to see it on television," he recalls. "[I thought] someone was playing the fool over the radio. I stood there watching, absolutely and profoundly amazed."

Van der Vyver says de Klerk's announcement was the last thing he expected. He had known de Klerk since the 1950s, when they were students at Potchefstroom University for Christian Higher Education, where Van der Vyver earned a bachelor of commerce degree in 1954, a bachelor of laws degree in 1956, and an honors bachelor of arts degree in philosophy in 1965. "Our political paths separated as I became estranged from the National Party [the all-white party that imposed apartheid on South Africa]," says Van der Vyver. "I always regarded him very highly . . . , but there was evidence that he represented the right wing of the National Party, the most conservative voice." The law professor's career couldn't have taken a more divergent turn from the politician's. From the early 1970s until the day de Klerk stunned the world with his announcement, Van der Vyver was an outspoken critic of the ruling party's policies.

In 1970, Van der Vyver became a professor of law at Potchefstroom, a seat of the Calvinist doctrine then followed by the National Party government. From 1972 to 1974, he was dean of the university's law faculty. In 1974, he completed his doctor of laws degree from the University of Pretoria with a dissertation on the philosophy and application of human rights.

In his dissertation, Van der Vyver candidly criticized human rights abuses inherent in the South African system. "I've always believed that teaching a philosophy is no use unless you can bring it to bear on practical problems of this day and age," he says. Because he opposed governmental policy with an outspokenness considered unacceptable at Potchefstroom, Van der Vyver quickly became a controversial figure in the national press.

The scholar continued to write and speak frankly on politically sensitive subjects, such as the use of criminal law to enforce racial policies. The furor surrounding his efforts led to a confrontation in 1978 with the Potchefstroom University Council. The council objected to a newspaper article he had written on the South African Security Legislation. "It was actually demanded that before I write anything or speak on any contentious political issue, I had to first enter into discussion with what they called a forum of the University Council," Van der Vyver says. He refused to comply, resigned from Potchefstroom, and was offered a position at the University of the Witswatersrand in Johannesburg. There, he taught human rights law, constitutional law, and property law until his appointment at Emory.

Undeterred by the events at Potchefstroom, Van der Vyver defied the government throughout the 1980s. Many of his eight books and numerous articles have addressed human rights abuses in South Africa. He is reserved about his dissident role, emphasizing his objective, scholarly pursuits of accuracy and truth. "I'm not a politician," he says. "An academic should try to see things as they really are and describe and disclose them, not play off public opinion. . . . Being an academic, I regarded it as my duty to make sure that I knew what went on. I also felt that it was my right to evaluate what was going on."

Van der Vyver assisted the Negotiating Forum during the reform process that began in 1990. He was appointed to a committee that dealt with laws that were to be abolished "to level the playing field," as Van der Vyver says. He also worked with the government's Department of Communication Services to explain to lay audiences what the constitutional change meant. The Department of Justice hired him to help train lower court judges and public prosecutors in constitutional litigation, a task he continues during the summers when he returns to South Africa.

While he watches the maturing of the new South African government, Van der Vyver plays a dual role in Atlanta. As a fellow for human rights at the Carter Center of Emory University, he has been involved in such efforts as training Albanian politicians in the functions of an independent judiciary. As a professor, he teaches international law and international human rights law. "There's a very thin divide between diplomacy and hypocrisy," Van der Vyver says. "If you regard me as outspoken, I don't do it deliberately. I just want to make quite clear what I'm trying to convey. That's what a good law teacher should do."

In 1983, less than five years after Van der Vyver risked his career to denounce apartheid, Abdullahi An-Na'im found himself being persecuted for opposing human rights violations in Sudan, which is situated in northern Africa between Egypt and Eritrea. An-Na'im, who earned a law degree from the University of Khartoum in 1970, law and M.A. degrees in criminology from the University of Cambridge in 1973, and a Ph.D. degree in law from the University of Edinburgh in 1976, remembers in chilling detail the day he was arrested.

"May 17 was such a typical day," he says. "I was head of the department of public law at the University of Khartoum, and I had finished a class in constitutional law around eleven a.m. My brother and I were going downtown in Khartoum for some shopping. This man just walked up to me and said, `The Chief of Security would like to talk to you.' . . . When I went to his car, I suddenly found men in plain clothes with submachine guns. . . . I remember telling my brother, `If I don't show up by two o'clock, go ahead and have lunch.' I thought it would be just a few hours, and it lasted eighteen months."

An-Na'im was arrested with about fifty others who, like him, were members of the Republican Brotherhood. That alliance opposed Sudan's extreme fundamentalist Islamic government and instead advocated a more tolerant and moderate interpretation of Islamic law. The country's autocratic leaders had begun a gradual process of replacing the country's civil law with their version of Shari'a, a central concept of Islam which controls every aspect of life, from the banking and legal systems to individual rights. "Their vision of Islamic law relegates women and non-Muslims to the status of second- and third-class citizens," An-Na'im wrote in a Los Angeles Times editorial in 1986. "The mutilation of criminal offenders, suppression of political opponents and international terrorism in the name of jihad (holy war) are their primary contributions to civilization."

During the year and a half that An-Na'im and his colleagues were kept in a large prison dormitory, they were never charged with a crime, interrogated, or given a reason for their imprisonment. Without explanation, they were released on December 19, 1984. That evening, the group decided to issue a statement denouncing the imposed Shari'a codes and calling for their repeal. Several weeks later, the leader of the Republican Brotherhood, Mahmoud Taha, and four others were arrested for distributing copies of the statement. On January 18, 1985, Taha was executed. In April, An-Na'im left the country.

Living in exile, An-Na'im went on to teach law at UCLA and the University of Saskatchewan in Canada. He also taught at Uppsala University in Sweden before becoming a scholar-in-residence in the Office for the Middle East and North Africa of the Ford Foundation in Cairo. He completed an English translation of Taha's writings, and he has written or edited six books on human rights and Islam. From 1993 to 1995, he served as executive director of Human Rights Watch/Africa, a monitoring agency in Washington, D.C.

At Emory, he teaches Islamic law, comparative criminal law, and a course in Islam and politics. He co-directs, along with Van der Vyver and Law and Religion Program director John Witte, the Religion and Human Rights Project at Emory University, which explores religion as a source of both conflict and human rights protection. Currently, he is writing a book on constitutionalism in Africa. As the current military regime in Sudan entrenches, he does not foresee returning home. "The Sudan I used to know, the Sudan I used to fit in, is no longer there," he says. "At the same time, there is a part of me that can never be outside Sudan. I will always miss being home. The exile experience is that you are neither of this place nor of the other place."

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