Lobola Lessons for Brexit

Author: Ntsekhe Moiloa

There is an amusing television advert by a local insurance company that illustrates the misunderstanding that can arise when lobola negotiations occur in Southern African culture. In the ad, the European gentlemen is depicted speeding across a rural landscape in an old pick-up van to reach the homestead of his beloved. He alights and the exchange that follows with the father of the would-be bride is uncannily like the exchange currently ensuing between the United Kingdom and the rest of its partners in the European Union.

As the British pound dropped to one-year lows against the US dollar and the euro, we are reminded of how the British electorate’s understanding of its EU membership was so fundamentally different to its reality. Like the European gentleman in the insurance ad, Britons thought the cost to them would be “kettles” where in fact it is “cattles”.

What is remarkable in the Brexit negotiations is the pervasiveness of hand-wringing about whether Brexit will be soft or hard. There is a tendency to think that Britain wields great negotiating leverage because it is the third most populous EU nation after Germany and France. Or because it is the third largest contributor to the EU budget. Or because at 16 percent of EU GDP, the UK is the second largest economy. Or because it is the richest per capita. The UK is undoubtedly important to the EU, yet hardly indispensable.

To put it bluntly, there is almost no chance that the exit of the UK can be anything other than hard. Consider first that most countries experience their easiest and greatest value trade with their closest neighbours. For the UK that means that the best trade opportunities are with the countries of Europe. Yet, the government of Theresa May has declared that it cannot accept a deal that involves free movement of people. According to Article 3 in the EU’s Lisbon Treaty, the free movement of goods, money and services is inextricably bound to the free movement of people. The result is that the EU cannot be seen to allow the UK to cherry-pick from among the foundational pillars of the EU that it likes without accepting the ones that it does not like. Theresa May’s insistence on a final deal right away does not even allow the likes of Angela Merkel to send a transitional deal home with the hopes that their successors may one day have the unenviable task of deciding whether to violate Article 3.

Two years is too narrow a window of time, politically and practically. The current batch of EU politicians are likely to still be around to regret conceding to British demands. Secondly, the UK has an of inexperience gap of nearly five decades in the negotiation of trade arrangements. Third, its best chance of trade is with the very neighbours it is trying to separate from, which is a bit like divorcing and yet hoping to continue to share a matrimonial bed. Fourthly, since the early 1970s Brussels has handled trade matters that stretch to more than 50 countries outside the EU involving thousands of nomenclatures and yet thousands more sub-nomenclatures. Thus, a trade arrangement on steel as a nomenclature, will typically have specifics relating to grades of steel as sub-nomenclatures, and will address access, quotas, tariffs and related matters. The UK simply does not have the capacity to do all of that in two years. Brexiteers often mentioned the Commonwealth as a potential pool of trade partners, however, the UK itself makes up about a third of the Commonwealth economy. India, Canada, Australia and South Africa are the next largest and are so geographically distant that it is hard to imagine why they would prefer to import British-made cars rather than sourcing them from nearer locations. Especially not when the UK would pay third-country rates to transport goods through key trade routes like the Suez Canal as well as dodge Somali pirates and pirates in the Straits of Malacca. Quite apart from all of that, the UK is precluded from setting about to talk to potential trade partners for as long as it remains a member of the EU.

There is another matter; in the UK’s own EU Withdrawal Act, section 10(2)(b) provides that the UK itself may not “create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU.”

Allow that all to sink in for a minute: the UK needs replacement trade arrangements but cannot begin to make them. So far we have not even considered the dysfunction in the current Tory government over Brexit. How can a soft Brexit be plausible before March 2019?

It cannot, except if the EU accepts an approach advanced by Jacob Rees-Mogg MP, leader of the Eurosceptic Conservative Party parliamentarians in Westminster. Rees-Mogg claims that the Irish border situation is a red herring. In his estimation, the UK has said it wants no hard border and both the Irish government and the EU prefer no hard border, therefore, if no one wants a hard border he asks why the border is still being debated. Instead, what should happen on the border is naturally a function of the kind of trade deal the UK can secure. Specifically, the control mechanisms should depend on what is decided in the trade deal, not the other way around. It is an interesting position, but it pre-supposes an interest on the part of the EU to do away with its version of lobola. Over the years, the EU has invested a lot of political capital in the idea that joining the EU is a partnership beyond dating; there is no getting in and getting out at will and without friction. The conduct of the UK government and Brexit supporters in general has, however, not made it easy for EU leaders to respond without looking weak.

The referendum was legally non-binding, yet the UK government bound itself to the result. The UK government could have waited until the Conservative party was more united on the way forward, but the Prime Minister hurried along anyway to raise the immigration drawbridges she had long desired to raise as Home Office Secretary. What the UK should have done upon submitting its Article 50 letter was to immediately ask for an off-the-shelf arrangement for perhaps up to 10 years, specifically the one that Norway has with the EU. It would exit the EU after 2 years and have perhaps 8 years to negotiate new arrangements from outside the Brussels trade team. It would have 8 years to figure out the Irish border. It would have 8 more years to provide certainty for European citizens living and working on both sides of the English Channel.

The Norway model is not without its costs. Norway is subject to the European Court of Justice. Norway has to agree to freedom of movement. Norway has to pay into the EU budget. And Norway has to align its legislation to EU regulations.

While the UK is an estranged marriage partner to the EU, one might say Norway has a civil partnership with the EU. Norway enjoys substantially all of the benefits and costs of marriage without perhaps the best tax breaks reserved for married couples.

Lobola negotiations are an everyday occurrence in many Southern African communities. They culminate in the payment of lobola which is understood as a demonstration that the prospective husband is able to provide for his prospective family. Some families eschew receipt of an actual payment but this is typically after the prospective groom has demonstrated capacity and intent to pay. As a practice, the payment of lobola is also thought to encourage disputing partners to resolve conflicts because a high price has already been paid to make the union possible.

In its legal arrangements, the European Union has designed its divorce procedures to exact a high price for leaving. Like the parties to lobola, the marriage partners in the European Union pay a high price to give themselves over to one another. Yet with Brexit the EU is being asked to pay for British independence.

The South African Supreme Court of Appeal made note of certain lobola procedures in a 2012 case – Moropane v Southon (755/12)[2014] ZASCA 76 (29 May 2014) – including the payment of a sum to open negotiations. In the case the learned judges mentioned “go bula molomo” or “go kokota”, both Tswana expressions with the first literally “to open the mouth” and the second meaning “to knock”. In Sesotho the negotiating parties may refer to “sebula molomo” meaning “that which opens the mouth”. Zulu culture has an analog in “imvula mlomo”. In lobola negotiations, the prospective groom’s representatives could approach the would-be bride’s home with all sorts of entreaties and be met with stone silence until “imvula mlomo” is put on the table. So has it been in the Brexit negotiations; Brussels has all along insisted on a two phase negotiation where the first phase involved the British agreeing to committing to paying amounts that the EU calculated to be due as a result of UK commitments before the Brexit referendum. Only after the so-called divorce fee was agreed, could the parties proceed to a discussion of the future trade relationship between the two. All the while, the two-year clock was ticking.

In the meantime, the EU’s chief negotiator has criss-crossed Europe speaking to European officials and businesses, communicating the same key lines in the precise manner of someone not speaking in their home tongue: “The clock is ticking”; “It cannot be business as usual”; “This is their red lines, not our red lines”. By contrast, the speculation ahead of Theresa May’s Chequers Deal suggests a team that has developed its ideas without the involvement of a range of stakeholders. The messaging has been less tight. And key Brexit personalities like Jacob Rees-Mogg have only visited the Irish border under duress, claiming that looking at the borderline would add no nuance to their view of the border issue.

What is sometimes hard for the British to understand is that we don’t want to negotiate, and we don’t want to compromise on who we are. They want to leave, that’s their choice.

— Michel Barnier, Chief Negotiator for the European Union in an interview with VICE News published 31 May 2018