To Graça Machel and the Mandela family; to President Zuma and members of the government; to heads of state and government, past and present; distinguished guests – it is a singular honor to be with you today, to celebrate a life unlike any other. To the people of South Africa – people of every race and walk of life – the world thanks you for sharing Nelson Mandela with us. His struggle was your struggle. His triumph was your triumph. Your dignity and hope found expression in his life, and your freedom, your democracy is his cherished legacy.
It is hard to eulogise any man – to capture in words not just the facts and the dates that make a life, but the essential truth of a person – their private joys and sorrows; the quiet moments and unique qualities that illuminate someone’s soul. How much harder to do so for a giant of history, who moved a nation toward justice, and in the process moved billions around the world.
Born during World War I, far from the corridors of power, a boy raised herding cattle and tutored by elders of his Thembu tribe – Madiba would emerge as the last great liberator of the 20th century. Like Gandhi, he would lead a resistance movement – a movement that at its start held little prospect of success. Like King, he would give potent voice to the claims of the oppressed, and the moral necessity of racial justice. He would endure a brutal imprisonment that began in the time of Kennedy and Khrushchev, and reached the final days of the Cold War. Emerging from prison, without force of arms, he would – like Lincoln – hold his country together when it threatened to break apart. Like America's founding fathers, he would erect a constitutional order to preserve freedom for future generations - a commitment to democracy and rule of law ratified not only by his election, but by his willingness to step down from power.
Given the sweep of his life, and the adoration that he so rightly earned, it is tempting then to remember Nelson Mandela as an icon, smiling and serene, detached from the tawdry affairs of lesser men. But Madiba himself strongly resisted such a lifeless portrait. Instead, he insisted on sharing with us his doubts and fears; his miscalculations along with his victories. "I'm not a saint," he said, "unless you think of a saint as a sinner who keeps on trying."
It was precisely because he could admit to imperfection – because he could be so full of good humor, even mischief, despite the heavy burdens he carried - that we loved him so. He was not a bust made of marble; he was a man of flesh and blood – a son and husband, a father and a friend. That is why we learned so much from him; that is why we can learn from him still. For nothing he achieved was inevitable. In the arc of his life, we see a man who earned his place in history through struggle and shrewdness; persistence and faith. He tells us what’s possible not just in the pages of dusty history books, but in our own lives as well.
Mandela showed us the power of action; of taking risks on behalf of our ideals. Perhaps Madiba was right that he inherited, "a proud rebelliousness, a stubborn sense of fairness" from his father. Certainly he shared with millions of black and colored South Africans the anger born of, "a thousand slights, a thousand indignities, a thousand unremembered moments … a desire to fight the system that imprisoned my people."
But like other early giants of the ANC – the Sisulus and Tambos – Madiba disciplined his anger; and channelled his desire to fight into organisation, and platforms, and strategies for action, so men and women could stand-up for their dignity. Moreover, he accepted the consequences of his actions, knowing that standing up to powerful interests and injustice carries a price. "I have fought against white domination and I have fought against black domination," he said at his 1964 trial. "I’ve cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die."
Mandela taught us the power of action, but also ideas; the importance of reason and arguments; the need to study not only those you agree with, but those who you don’t. He understood that ideas cannot be contained by prison walls, or extinguished by a sniper’s bullet. He turned his trial into an indictment of apartheid because of his eloquence and passion, but also his training as an advocate. He used decades in prison to sharpen his arguments, but also to spread his thirst for knowledge to others in the movement. And he learned the language and customs of his oppressor so that one day he might better convey to them how their own freedom depended upon his.
Mandela demonstrated that action and ideas are not enough; no matter how right, they must be chiseled into laws and institutions. He was practical, testing his beliefs against the hard surface of circumstance and history. On core principles he was unyielding, which is why he could rebuff offers of conditional release, reminding the Apartheid regime that, "prisoners cannot enter into contracts." But as he showed in painstaking negotiations to transfer power and draft new laws, he was not afraid to compromise for the sake of a larger goal. And because he was not only a leader of a movement, but a skillful politician, the Constitution that emerged was worthy of this multiracial democracy; true to his vision of laws that protect minority as well as majority rights, and the precious freedoms of every South African.
Finally, Mandela understood the ties that bind the human spirit. There is a word in South Africa – Ubuntu – that describes his greatest gift: his recognition that we are all bound together in ways that can be invisible to the eye; that there is a oneness to humanity; that we achieve ourselves by sharing ourselves with others, and caring for those around us. We can never know how much of this was innate in him, or how much of it was shaped and burnished in a dark, solitary cell. But we remember the gestures, large and small – introducing his jailors as honoured guests at his inauguration; taking the pitch in a Springbok uniform; turning his family’s heartbreak into a call to confront HIV and Aids – that revealed the depth of his empathy and understanding. He not only embodied Ubuntu; he taught millions to find that truth within themselves. It took a man like Madiba to free not just the prisoner, but the jailor as well; to show that you must trust others so that they may trust you; to teach that reconciliation is not a matter of ignoring a cruel past, but a means of confronting it with inclusion, generosity and truth. He changed laws, but also hearts.
For the people of South Africa, for those he inspired around the globe – Madiba’s passing is rightly a time of mourning, and a time to celebrate his heroic life. But I believe it should also prompt in each of us a time for self-reflection. With honesty, regardless of our station or circumstance, we must ask: how well have I applied his lessons in my own life?
It is a question I ask myself – as a man and as a president. We know that like South Africa, the United States had to overcome centuries of racial subjugation. As was true here, it took the sacrifice of countless people – known and unknown – to see the dawn of a new day. Michelle and I are the beneficiaries of that struggle. But in America and South Africa, and countries around the globe, we cannot allow our progress to cloud the fact that our work is not done. The struggles that follow the victory of formal equality and universal franchise may not be as filled with drama and moral clarity as those that came before, but they are no less important. For around the world today, we still see children suffering from hunger, and disease; run-down schools, and few prospects for the future. Around the world today, men and women are still imprisoned for their political beliefs; and are still persecuted for what they look like, or how they worship, or who they love.
We, too, must act on behalf of justice. We, too, must act on behalf of peace. There are too many of us who happily embrace Madiba’s legacy of racial reconciliation, but passionately resist even modest reforms that would challenge chronic poverty and growing inequality. There are too many leaders who claim solidarity with Madiba’s struggle for freedom, but do not tolerate dissent from their own people. And there are too many of us who stand on the sidelines, comfortable in complacency or cynicism when our voices must be heard.
The questions we face today – how to promote equality and justice; to uphold freedom and human rights; to end conflict and sectarian war – do not have easy answers. But there were no easy answers in front of that child in Qunu. Nelson Mandela reminds us that it always seems impossible until it is done. South Africa shows us that is true. South Africa shows us we can change. We can choose to live in a world defined not by our differences, but by our common hopes. We can choose a world defined not by conflict, but by peace and justice and opportunity.
We will never see the likes of Nelson Mandela again. But let me say to the young people of Africa, and young people around the world – you can make his life’s work your own. Over thirty years ago, while still a student, I learned of Mandela and the struggles in this land. It stirred something in me. It woke me up to my responsibilities – to others, and to myself – and set me on an improbable journey that finds me here today. And while I will always fall short of Madiba’s example, he makes me want to be better. He speaks to what is best inside us. After this great liberator is laid to rest; when we have returned to our cities and villages, and rejoined our daily routines, let us search then for his strength – for his largeness of spirit – somewhere inside ourselves. And when the night grows dark, when injustice weighs heavy on our hearts, or our best laid plans seem beyond our reach – think of Madiba, and the words that brought him comfort within the four walls of a cell:
It matters not how strait the gate,
How charged with punishments the scroll,
I am the master of my fate:
I am the captain of my soul.
What a great soul it was. We will miss him deeply. May God bless the memory of Nelson Mandela. May God bless the people of South Africa.
Source: Mail & Guardian
Showing posts with label Constitutionalism. Show all posts
Showing posts with label Constitutionalism. Show all posts
Tuesday, December 10, 2013
Tuesday, February 14, 2012
An unambiguous attack on constitutional democracy
In 1934 the Appeal Court in the case of Sachs v Minister of Justice; Diamond v Minister of Justice had to consider the validity of a banning order issued by the Minister of Police. Banning orders, which prohibited a person from being present in specific areas because the Minister was satisfied that the person “is in the area promoting feelings of hostility between the European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand”, was a powerful tool used by the authorities to restrict the political activities of those opposed to the policies of the government. In rejecting the challenge to the banning order, Stratford ACJ made the following statement about the nature of parliamentary sovereignty in South Africa:
Regardless of the spin later put on his words by presidential spin doctors, President Jacob Zuma’s latest comments about the judiciary reflect a yearning to return to this system of Parliamentary sovereignty. President Zuma said that there was a need to review the powers of the Constitutional Court because judges were not “special people”, but fallible human beings. As proof of this statement he pointed to the phenomenon of split judgments, saying:
Judges were “influenced by what’s happening and who are influenced by you guys (the media)”, Zuma said. If the decisions of Parliament and the executive could be challenged, there was nothing wrong in questioning the decisions of the judiciary, he said.
Of course, President Zuma is correct that judges are fallible human beings and that different judges might view a legal question differently. (What he did not mention is that judges are usually slightly more intelligent than the average politician and usually far more honest. After all, as far as I know, no South African judge has ever faced bribery and corruption charges in court; no person has ever been convicted in South Africa for bribing a judge; and no judge has had to resign because he went to visit his drug dealing girlfriend in a Swiss jail on state expense.)
Reasonable lawyers often differ about what a legal provision or a judicial precedent might mean in a particular case. That is why lawyers take cases to court: most of them believe that they have some chance of winning their case or of getting a better deal for their client (even if they do lose the case). If they thought they had no chance of swaying the judge this way or that, they would not bother to submit papers and present oral arguments to court. They only believe that because reasonable people could differ on the correct interpretation and application of the facts or the law.
There is therefore nothing strange about different judges in the same court sometimes disagreeing with one another and writing a majority and minority opinion. Unlike some politicians, South African judges usually do not disagree with one another because they took bribes from different parties before the court or because they have another direct interest in the outcome of a matter. They do so because there is a genuine intellectual disagreement between the judges about the meaning of a legal rule or principle.
When this happens judges write different judgments in which they motivate why they took the view they took and these judgments can then be analysed and critiqued, thus keeping judges accountable for their decisions (unlike politicians, who are not held accountable for each decision they take, but are only held indirectly accountable by their party who might or might not gain more votes in the next election).
There is therefore also nothing wrong with criticising judicial decisions. Even sharp criticism of judicial decisions that engages with the legal arguments developed in a judgement must be welcomed, as such criticism and analysis ensure some form of accountability for the judiciary. (Of course, if a politician whose friend was convicted of bribing that politician argues that a specific majority decision handed down by the Constitutional Court is wrong, one might well take that opinion of the politician with more than a pinch of salt.)
But President Zuma’s claim that the powers of the Constitutional Court need to be reviewed because those judges sometimes hand down split decisions makes no sense whatsoever. Either the Constitutional Court has the power to interpret and enforce the provisions of the Constitution, or this power is taken away via a constitutional amendment. It is not possible to tinker with the powers of judicial review currently enjoyed by the Constitutional Court. Where a majority of judges, whose independence is guaranteed, are not allowed to review and set aside acts of Parliament or the executive, one does not have a constitutional democracy under the Rule of Law but a different system in which people enjoy rights by the grace of the majority party.
One can, of course, abolish the powers of the Constitutional Court to declare invalid legislation or acts of the executive, returning to a system of Parliamentary sovereignty which was in place during the apartheid years when the Sachs case was decided. This would mean that we would no longer live in a country in which the human rights of everyone is protected by the courts and President Zuma would then be free to act in accordance with even the most draconian legislation which would not be revieweable by the courts.
If one favoured a system, say, in which individuals could legally be arrested and detained without bringing them to trail, in which political opponents could be silenced with legally imposed “banning orders”, in which women or any unfavoured group (say, somebody who speaks Xhosa instead of Zulu or is disabled instead of able bodied) could legally be discriminated against by the government, then this system would obviously look particularly attractive.
But that is not the system on which the ANC had agreed years before the current Constitution was drafted. Recall that in 1989 in the Harare Declaration the ANC committed itself to the kind of system of judicial review that is currently in place in South Africa, affirming that in a democratic South Africa:
There is no context which can explain away the words of the President about a need to review the powers of the Constitutional Court. Poor Mac Maharaj issued a statement in which he pretended that the President’s words could be interpreted to mean something completely different from what he actually said. But the statement about a need for a review of the Constitutional Court’s powers leaves no room for ambiguity or a different interpretation based on context. There is therefore no way to interpret President Zuma’s statement other than as an attack on the principles underlying a constitutional democracy.
In fact Maharaj’s statement added fuel to the fire by suggesting that the executive should be able to influence the judges. He stated that President Zuma’s statement that the powers of the Constitutional Court should be reviewed:
This statement does not only fail to explain away the shocking attack of the President on our constitutional democracy, but signals that the Presidency has a rather strange understanding of the principle of the separation of powers and the independence of the judiciary. How the study by the executive of the judgments of the Constitutional Court could “contribute to the shaping of our evolving constitutional jurisprudence” without an attempt by the executive to intimidate the judges is unclear.
Judges have a constitutional duty to be impartial and independent. They cannot be swayed or influenced by the views of the executive who might wish to shape their jurisprudence. So if the executive aims to “shape” the decisions of the Constitutional Court, then it is aiming to interfere with the independence of the judiciary and hence to undermine one of the pillars of the constitutional democracy. This means that even the spin by the Presidency trying to excuse the inexcusable, displays a shocking lack of respect for our system of separation of powers and checks and balances.
One cannot interfere – legally, at least – with the supremacy of the Constitution and the independence of the judiciary without changing various provisions of the Constitution, including the founding values in section 1 which states, inter alia, that the “Republic of South Africa is one, sovereign, democratic state founded on the values of … supremacy of the constitution and the rule of law.” Such an amendment would require a 75% majority in the National Assembly, something the ANC would not be able to muster – even if they managed to bribe a few small parties to support its anti-constitutional scheme.
This suggests that (in the absence of a coup d’état) President Zuma’s wish that the powers of the Constitutional Court should be reviewed and amended is never going to fly. He will just have to take his chances in the courts (as he has done on many previous occasions, often with great success) when various cases that could affect his corruption and bribery prosecution comes before the judiciary. Meanwhile, he should really think before he talks.
Source: Constitutionally Speaking
[O]nce we are satisfied on a construction of the Act, that it gives to the Minister an unfettered discretion, it is no function of a Court of law to curtail its scope in the least degree, indeed it would be quite improper to do so. The above observation is, perhaps, so trite that it needs no statement, yet in cases before the Courts when the exercise of a statutory discretion is challenged, arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its away, and that it is the function of courts of law to enforce its will.
Regardless of the spin later put on his words by presidential spin doctors, President Jacob Zuma’s latest comments about the judiciary reflect a yearning to return to this system of Parliamentary sovereignty. President Zuma said that there was a need to review the powers of the Constitutional Court because judges were not “special people”, but fallible human beings. As proof of this statement he pointed to the phenomenon of split judgments, saying:
How could you say that (the) judgment is absolutely correct when the judges themselves have different views about it? We don’t want to review the Constitutional Court, we want to review its powers. It is after experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with… There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case? That’s what has made the issue to become (one) of concern.
Judges were “influenced by what’s happening and who are influenced by you guys (the media)”, Zuma said. If the decisions of Parliament and the executive could be challenged, there was nothing wrong in questioning the decisions of the judiciary, he said.
Of course, President Zuma is correct that judges are fallible human beings and that different judges might view a legal question differently. (What he did not mention is that judges are usually slightly more intelligent than the average politician and usually far more honest. After all, as far as I know, no South African judge has ever faced bribery and corruption charges in court; no person has ever been convicted in South Africa for bribing a judge; and no judge has had to resign because he went to visit his drug dealing girlfriend in a Swiss jail on state expense.)
Reasonable lawyers often differ about what a legal provision or a judicial precedent might mean in a particular case. That is why lawyers take cases to court: most of them believe that they have some chance of winning their case or of getting a better deal for their client (even if they do lose the case). If they thought they had no chance of swaying the judge this way or that, they would not bother to submit papers and present oral arguments to court. They only believe that because reasonable people could differ on the correct interpretation and application of the facts or the law.
There is therefore nothing strange about different judges in the same court sometimes disagreeing with one another and writing a majority and minority opinion. Unlike some politicians, South African judges usually do not disagree with one another because they took bribes from different parties before the court or because they have another direct interest in the outcome of a matter. They do so because there is a genuine intellectual disagreement between the judges about the meaning of a legal rule or principle.
When this happens judges write different judgments in which they motivate why they took the view they took and these judgments can then be analysed and critiqued, thus keeping judges accountable for their decisions (unlike politicians, who are not held accountable for each decision they take, but are only held indirectly accountable by their party who might or might not gain more votes in the next election).
There is therefore also nothing wrong with criticising judicial decisions. Even sharp criticism of judicial decisions that engages with the legal arguments developed in a judgement must be welcomed, as such criticism and analysis ensure some form of accountability for the judiciary. (Of course, if a politician whose friend was convicted of bribing that politician argues that a specific majority decision handed down by the Constitutional Court is wrong, one might well take that opinion of the politician with more than a pinch of salt.)
But President Zuma’s claim that the powers of the Constitutional Court need to be reviewed because those judges sometimes hand down split decisions makes no sense whatsoever. Either the Constitutional Court has the power to interpret and enforce the provisions of the Constitution, or this power is taken away via a constitutional amendment. It is not possible to tinker with the powers of judicial review currently enjoyed by the Constitutional Court. Where a majority of judges, whose independence is guaranteed, are not allowed to review and set aside acts of Parliament or the executive, one does not have a constitutional democracy under the Rule of Law but a different system in which people enjoy rights by the grace of the majority party.
One can, of course, abolish the powers of the Constitutional Court to declare invalid legislation or acts of the executive, returning to a system of Parliamentary sovereignty which was in place during the apartheid years when the Sachs case was decided. This would mean that we would no longer live in a country in which the human rights of everyone is protected by the courts and President Zuma would then be free to act in accordance with even the most draconian legislation which would not be revieweable by the courts.
If one favoured a system, say, in which individuals could legally be arrested and detained without bringing them to trail, in which political opponents could be silenced with legally imposed “banning orders”, in which women or any unfavoured group (say, somebody who speaks Xhosa instead of Zulu or is disabled instead of able bodied) could legally be discriminated against by the government, then this system would obviously look particularly attractive.
But that is not the system on which the ANC had agreed years before the current Constitution was drafted. Recall that in 1989 in the Harare Declaration the ANC committed itself to the kind of system of judicial review that is currently in place in South Africa, affirming that in a democratic South Africa:
All shall enjoy universally recognised human rights, freedoms and civil liberties, protected under an entrenched Bill of Rights. South Africa shall have a new legal system which shall guarantee equality of all before the law. South Africa shall have an independent and non-racial judiciary.
There is no context which can explain away the words of the President about a need to review the powers of the Constitutional Court. Poor Mac Maharaj issued a statement in which he pretended that the President’s words could be interpreted to mean something completely different from what he actually said. But the statement about a need for a review of the Constitutional Court’s powers leaves no room for ambiguity or a different interpretation based on context. There is therefore no way to interpret President Zuma’s statement other than as an attack on the principles underlying a constitutional democracy.
In fact Maharaj’s statement added fuel to the fire by suggesting that the executive should be able to influence the judges. He stated that President Zuma’s statement that the powers of the Constitutional Court should be reviewed:
must therefore not be viewed as an attempt by government to undermine the independence of the judiciary and the rule of law which are entrenched in our Constitution. This is an exercise that falls within the mandate of the Executive of formulating and reviewing policies of government which seek to advance the transformative character of our Constitution. It is anticipated that the outcome of this exercise will not only assist in developing value-based solutions to address the legacy of the past but will contribute in shaping our evolving constitutional jurisprudence.
This statement does not only fail to explain away the shocking attack of the President on our constitutional democracy, but signals that the Presidency has a rather strange understanding of the principle of the separation of powers and the independence of the judiciary. How the study by the executive of the judgments of the Constitutional Court could “contribute to the shaping of our evolving constitutional jurisprudence” without an attempt by the executive to intimidate the judges is unclear.
Judges have a constitutional duty to be impartial and independent. They cannot be swayed or influenced by the views of the executive who might wish to shape their jurisprudence. So if the executive aims to “shape” the decisions of the Constitutional Court, then it is aiming to interfere with the independence of the judiciary and hence to undermine one of the pillars of the constitutional democracy. This means that even the spin by the Presidency trying to excuse the inexcusable, displays a shocking lack of respect for our system of separation of powers and checks and balances.
One cannot interfere – legally, at least – with the supremacy of the Constitution and the independence of the judiciary without changing various provisions of the Constitution, including the founding values in section 1 which states, inter alia, that the “Republic of South Africa is one, sovereign, democratic state founded on the values of … supremacy of the constitution and the rule of law.” Such an amendment would require a 75% majority in the National Assembly, something the ANC would not be able to muster – even if they managed to bribe a few small parties to support its anti-constitutional scheme.
This suggests that (in the absence of a coup d’état) President Zuma’s wish that the powers of the Constitutional Court should be reviewed and amended is never going to fly. He will just have to take his chances in the courts (as he has done on many previous occasions, often with great success) when various cases that could affect his corruption and bribery prosecution comes before the judiciary. Meanwhile, he should really think before he talks.
Source: Constitutionally Speaking
Let justice, fairness be our guide
We should make sure that even if the ANC does not give President Jacob Zuma a second party term in December, the party should under no circumstances be allowed to cut short his presidency. As torturous as this might be, principle should trounce passions. In the past week, the demise of ANC Youth League president Julius Malema was widely celebrated. When ANC bigwig Cyril Ramaphosa - who chairs the party's national disciplinary committee of appeals - confirmed the youth leader's guilt and sentence on Saturday, there was a collective sigh of relief from Constantia to Khutsong. Finally, the Mario Balotelli of our politics had been red-carded. One might argue that this was rightly so.
Like Mbeki, Malema has done a lot of harm to the country. It is therefore easy to understand why we are all inclined to ululate as he is blindfolded and led to the raised platform where he will hang until his neck breaks. Except for the fact that he swears by the skull and crossbones that symbolise the venerable 75-year-old South African institution called Orlando Pirates, Malema has no saving graces.
I had hoped against all hope that the honourable men and women on the ANC's appeals committee would rise above self-interest politics and allow their integrity to dictate their decision-making. At this juncture, as the comrades are wont to say, we should pause and ask ourselves if it is right and proper that Malema should be executed in this fashion for the sake of political expediency.
No doubt the country will be a much better place without Malema on newspaper front pages and at the top of broadcast bulletins every other day. His divisive verbosity will not be missed. Investors will nod. Ministers and policy-makers will no longer have to waste their breath explaining that nationalisation is not official policy but one young man's thoughts in the bath. Minority interest groups will have to find a new bogey. Farmers will not see Robert Mugabe on their doorsteps. The cantankerous chief from Ulundi will be less concerned that his grandchildren will be recruited into the ANC against his will. Hellen Zille and Lindiwe Mazibuko will be subjected to fewer insults. Mazibuko can make her tea and Zille can inject herself with botox with gay abandon. South Africans will not be subjected to to the sewer rhetoric that Malema had reduced political discourse to. Most crucially, Zuma's re-election strategists will sleep easier and plan better for the ANC's Mangaung elective conference. (That is all, of course, assuming that Malema is finished, which is far from conclusive at this point. Like Mgqumeni of Nquthu, Malema might rise from the dead and wow the masses again.)
But is the imminent execution right and proper? Is the elevation of political short-term gain above principle the right thing for a country that is trying to deepen and entrench a democratic culture? This lowly newspaperman thinks not.
Let's just take a cold look at the sins Malema is said to have committed against the ANC. As leader of the ANC Youth League, he led the charge against Botswana's governing party. He called for regime change in that country, labelling Ian Khama's government a puppet of Western imperialism. He did not call for a military overthrow of the government, but rather the unification of opposition forces for the democratic removal of the Botswana Democratic Party. By the way the "D" part of the party's name is almost as appropriate as North Korea's depiction of itself as democratic.
Now many in the ANC - including the secretary-general, members of the national executive and officials of other party structures - have pronounced themselves on foreign policy issues. Be it Zimbabwe, Israel, Swaziland or Tibet, we have heard differing views from individual members of the ANC leadership. Having read the national disciplinary committee's reasoning on the matter, I am still none the wiser as to why Botswana should be a holy cow, other than the fact that it has more cattle than human beings in its sovereign territory.
Malema's other serious offence was the unfavourable comparison of Zuma's leadership to that of Mbeki. Now what, pray thee, is the crime comparing the talents of the country's leaders? How are we to grow if we do not publicly share our views on the respective qualities of those who lead us? It would be a travesty if we were to create a culture where South Africans - and ANC functionaries in particular - were not able to evaluate the contribution of leaders to the development of our republic and our world. There were many other pots, spoons and saucers (euphimistically known as charges) thrown at Malema during a process in which the kangaroo court label can be deemed apt. It is a process that, as much as we may resent Malema, we will live to regret.
Rather than rushing to execute Malema, the ANC and the country should take some lessons from his rise and fall. In the rise of Malema, we should take care not to empower a demagogue to occupy centre stage in our discourse. Malema the hero and Malema the ogre were not the creation of the media and the South African public. The ANC gave birth to him, fattened him and unleashed him on an unsuspecting nation. It suited Zuma and his leadership to have an uncontrollable bloodhound to take on their opponents and external opponents. He was empowered to be the Malema that he was. The more despicable he became the more useful he was. Not once did the ANC give a care about the negative effect he was having on our body politic or the damage he was doing to our international standing. In its centenary introspections, the ANC should give careful thought to how it creates and nurtures monsters such as Malema.
Those outside the ANC should also think about how we deal with the monsters that the governing party creates. Do we empower the monsters by demonising and fearing them? Do we in the media give undue attention to the monsters that the ANC or any other societal force creates? Do we have a choice? Having done so, the ANC and the country should think seriously about the place of principle in our public discourse and the conduct of our politics.
We should make sure that no matter how much we resent, hate and fear an individual, these emotions should never compromise our commitment to justice and fairness.
Principle should always be our guide. Yesterday it was Mbeki. Today it is Malema. Tomorrow? ...
Written by Mondli Makhanya, editor-in-chief of Avusa Media newspapers
Source: The Sowetan
Wednesday, August 31, 2011
Hold off with the schadenfreugasms
"[Tuesday’s] events remind us that we do not live in an ordinary or normal country. We live in a country where some people (politicians and the old business elite among them) eat sushi from the bodies of semi-naked models; are protected by bodyguards and high walls from the young men and women who have no money, no jobs and little to lose; a country where some people travel across the world in first class and throw lavish parties, while the majority of South Africans languish in poverty and do not have the life chances to make meaningful decisions about their own lives."Source: Constitutionally Speaking
Tuesday, July 13, 2010
The ANC, human dignity and freedom of the media
Pierre De Vos wrote the following on his blog:
Source: Constitutionally Speaking
When Tony Blair became leader of the British Labour Party he set out to befriend media mogul Rupert Murdoch. Murdoch owns The Sun, the biggest tabloid newspaper in Britain, as well as Sky News. In previous elections The Sun had supported the Conservatives and Blair understood that he needed the support of The Sun (topless page three girls included) to win the next election. He soon got that support and in 1997 won the general election in a landslide.
The Sun remained a supporter of the Labour Party in election after election but switched sides before the general election earlier this year. Labour, of course, lost this election to a coalition of the Conservatives and the Liberal Democrats. (The fact that Sky News was obviously rooting for the Conservatives might also have helped a bit.)
Clearly the African National Congress (ANC) does not share Tony Blair’s Machiavellian view of how to influence the media. In recent days several ANC leaders and spokespeople have revived the idea of a Media Appeals Tribunal. It is unclear what this Tribunal would do or to what extent it would impose the ideological world view of the ANC on the media.
For Gwede Mantashe, it seems, a Media Appeals Tribunal will help to “correct” the anti-ANC bias in the media. He argues that the media is driven by a dark conspiracy to discredit the National Democratic Revolution (conveniently forgetting that the vast majority of South Africans receive their news from the SABC, a state broadcaster masquerading as a public broadcaster).
Blade Nzimande would like to see the Tribunal used to stop the alleged corruption in the media. He points out, correctly, that the Ashley Smith affair asks some serious questions not only about the integrity of Ebrahim Rasool, but also of Smith and other members of the media and calls for a re-evaluation of the role the media plays in South Africa.
(Is it not ironic that a cabinet Minister has taken the allegations made by former Cape Argus reporter Ashley Smith at face value and has used it to argue for the institution of a Media Appeals Tribunal, while the President has appointed the very person who has allegedly bribed Smith as our ambassador to Washington? Will Nzimande demand that the appointment be rescinded or will he show himself to be a rank hypocrite?)
ANC spokesperson, Jackson Mthembu, so it seems, want to use the Media Appeals Tribunal to censor the media and to stop them publishing things that might be upsetting or distasteful. Lambasting the Mail & Guardian for publishing a picture of the highly controversial Mandela autopsy painting, Mthembu stated:
This unbridled freedom of the media, as evidenced by projection of this so called art in the Mail and Guardian, confirms that the self-regulated print media environment is a recipe for disaster and negates the core values we hold dear as the society as contained in our constitution.
All these statements have at least two very scary things in common. First, it shares an utter lack of understanding of freedom of expression and the media in a well-functioning constitutional democracy. Second it endorses a view that ideas, facts, practices or opinions that the ruling party opposes or thinks is dangerous or harmful (to itself, to the state?) should not be published in the media and that a Tribunal should regulate the media to stop them printing such things.
In an open and democratic society, the media is an important and powerful player. It would be naive to think that members of the media do not have political views and that such views are not reflected in the choices of stories they carry and the way these stories are told. What is excluded is often just as important as what is included.
That is why one does not have to be a rocket scientist to know that the SABC is close to a mouthpiece of the ANC, while ETV and the print media are more critical of the ANC. No wonder the ANC wins every election with more than 60% of the vote, as the SABC is the main source of information and news for almost 80% of South Africans.
A free media is important because it protects and enhances our human dignity. It does this by providing us with different views so that we can make up our own minds about who we are, what we think and how we want to live. A free media helps us to have some agency and thus to become people whose inherent human dignity is respected.
The diversity of views seem all important, which means that as a rule, the majority or the majority political party should not be able to tell the media what it can and cannot publish as this would infringe on the human dignity of every South African. If we know nothing except that which we are allowed to know by our leaders, we do not live lives of dignity. Instead we live lives as people who are only half human, cut off from a sense of self, part of a collective, yes, but not able to change our minds or decide for ourselves what is good or bad in our world and how we want to deal with this reality.
Of course, in a democracy, political parties try to woo the media to get them to write nice things about them. If they make mistakes, they try and manage the media to limit the negative effects of their mistakes. Helen Zille, as a former journalist, is quite good at this kind of media management when she keeps her paranoid anti-ANC rhetoric in check. ANC leaders are seldom good at it and if they are (like Tokyo Sexwale) they are viewed with suspicion.
People who work in the real media (as opposed to those who work for the bureaucratic pro-state SABC) like to think of themselves as cool, intelligent and hip. When the ANC talks about the National Democratic Revolution, deploy fake revolutionary phrases that went out of fashion around the time that the USSR invaded Hungary, and talk about dark conspiracies by the enemies of the new order (by which they usually mean critics of the ANC and the government of the day), they alienate ordinary, decent, journalists who might otherwise have been ideologically rather close to the ANC.
What the ANC and the government it leads actually needs is not a Media Appeals Tribunal, but a media strategy to woo the non-state media to its side by talking the language of ordinary people and citizens. Instead of talking that fuax revolutionary drivel and blaming the Dark Lord Sauron, anti-transformation forces, the CIA or the Devil himself for their bad record on service delivery and for the bad publicity on corruption and the like, the ANC needs to face up to the facts and take quick and decisive action to correct mistakes to try and convince the real media that it really, really cares and is doing its best to stamp out corruption and to improve service delivery.
The ANC has been spoilt by its praise singers at the SABC, so it does not understand or respect real media freedom. Thus it cannot see the difference between disagreeing with something the media did (publishing the Mandela painting, for example) and demanding that the media be stopped from doing it. In a real democracy there are laws of defamation that protects the dignity of everyone and the media must operate within those laws but otherwise freedom of the media means exactly that: freedom to publish even things that the majority party does not like or finds despicable.
When the media does something that one really finds upsetting, one is of course entitled to criticise them. One can call the Mail and Guardian callous for publishing the painting of Mandela’s autopsy, or one can argue that the painting is just a really bad piece of art and that the Mail & Guardian has been sensationalistic and has shown a shocking lack of taste in publishing a “work of art” that is no more than a cheap and pathetic attempt to garner publicity for the artist.
That is all fair comment. But to suggest that the Mail & Guardian should not be allowed to publish the painting is to endorse a kind of censorship that cannot be squared with a constitutional democracy. I for one want to know what the fuss is about and want to make up my own mind on whether the painting is a cheap and pathetic publicity stunt or a meaningful and thought-provoking meditation on wisdom and learning.
The problem is that the ANC has not yet embraced the notion that its own views about what is right and wrong, what is acceptable or not, about what is an affront to the dignity of one of its leaders or not, is just that: its own view and one of many. It has not yet accepted that it does not speak on behalf of the nation (what a paternalistic notion!) and can thus not tell everyone what it is allowed to publish or to think. Its views – no matter how widely shared, cogent or laudable - is just one set of views.
There are many other views and if we want to live in a real democracy (and not the kind of fake democracy found in Hungary after 1956) we have to allow the many different views as long as the expression of these views stays within the bounds of the law of defamation.
This does not mean we cannot get upset or that we have no right to express our contempt and anger at the media. It just means that we cannot impose our own view – which is one of many different views that must be allowed to flourish in a society based on human dignity – on all.
Source: Constitutionally Speaking
Wednesday, July 7, 2010
Time for rethink on traditional leaders
Millions of South Africans live much of their lives according to customary law (instead of having their lives regulated via the common law). During the apartheid era, customary law was viewed as second class law. We were told that the law that counted was statute law and, more importantly (for most – white – lawyers and legal academics), the “magisterial”, so called “conceptually refined” and “fundamentally fair” system of common law. When I studied law at Stellenbosch University, we did not study a single aspect of customary law. It was as if customary law (and the millions of people who lived in terms of it) did not exist.
Later I discovered that some of the ideological underpinnings of the Roman Dutch common law were rather suspect, what with its radical assumptions about freedom of contract and a predisposition to favour the powerful and the propertied classes above all others. At the same time it dawned on many that, for better or worse, millions of South Africans lived much of their lives in terms of customary law.
The official view on customary law has thankfully now changed, as the status of customary law in South Africa is constitutionally entrenched. Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised subject to the Constitution. As the Constitutional Court has made clear in the case of Alexkor v Richtersveld Community, customary law must now be regarded as equal with the common law and as an “integral part of our law” and “an independent source of norms within the legal system.” Like any other source of law, customary law has a status that requires respect. Customary law must also not be judged through the lens of the common law.
But what happens if traditional customary law rules – interpreted and applied in its proper context and not with reference to the common law – conflicts with other provisions in the Bill of Rights? This question came to mind when I read about claims by Princess NomaXhosa Sigcawu from the East Cape that she had been overlooked to lead the AmaGcaleka Kingdom and that this was unconstitutional.
NomaXhosa said her mother, Queen Nozizwe, had been her father (King Zwelidumile Sigcawu’s) senior wife. Because she had been a baby when he died, King Xolilizwe, her older brother from another mother, had been made king. When King Xolilizwe died in 2006, one of his sons, Mpendulo, took the throne. The Princess claims that this move – based on the customary law rule in that community that only the oldest male heir could become King or Chief – discriminated against her on the basis of her sex or gender.
This case differs from the case of Shilubane and Others v Mwamitwa, where the Constitutional Court recognised the fact that a traditional community itself could change the rules to allow the female children of chiefs to take up the reigns, despite a previous custom that only the oldest male child could do so. This is because in the case of Princess Sigcawu, the community had not changed the custom and is resisting her attempts to become the Queen.
Commenting on the case, Chief Patekile Holomisa, Congress of Traditional Leaders of South Africa (CONTRALESA) president, said custom dictated who should be a royal leader. “Legitimacy of ubukhosi is derived from custom, not from the Constitution and the Bill of Rights,” he said, referring to kingship. “It is not automatic that a woman as the first-born is a successor. If a traditional council decides to go against the custom, the court can allow that, but we do not accept it.”
As the Constitutional Court makes clear, this view by the President of CONTRALESA is not sustainable. Several provisions in the Constitution affirm that – like common law – customary law is now subject to the Constitution and cannot contravene the Constitution. Moreover, although Courts should try and respect the right of communities that observe systems of customary law and should try and respect their right to develop their law as they wish, where a custom discriminates against women or infringes on the rights of individuals, a court had a duty to declare that custom unconstitutional and to amend it.
There is a serious debate raging in academic circles and also amongst judges on how to deal with this issue. On the one hand, courts – especially the Constitutional Court – is acutely aware that customary law has been disregarded and disrespected in the past and that courts should now recognise the fact that customary law is a living law that can change over time. It is not the rigid and inflexible system of fossilised rules, written down by white colonialists and enforced by white judges during the apartheid era, and courts should be sensitive to this and, where possible, should allow the customary law to be develop by the relevant community themselves.
On the other hand, the courts have a duty to develop customary law rules to bring them in line with the spirit, purport and object of the Bill of Rights. Where customary law rules discriminate against women, they must be developed or declared unconstitutional. As the Court said in Shilubana:
courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.
Whether a court will show deference to customary law and wait for it to develop organically, or whether it will intervene will depend on several factors. These factors would include:
the nature of the law in question, in particular the implications of change for constitutional and other legal rights; the process by which the alleged change has occurred or is occurring; and the vulnerability of parties affected by the law.
It is clear that a customary law rule that prohibits women from becoming traditional leaders like chiefs or queens, unfairly discriminates against women. It is based on patriarchal notions about the “proper” roles of men and women in society and is often justified on the basis that a chief or a king can only become one if he was fathered by a chief or a king. As women cannot father any children, they cannot and should not become chiefs or kings.
This view perpetuates the notion that men – because they father children – have a higher status in society than women. Although very few women will therefore directly be affected by this customary law rule (as very few women are actually the daughters of chiefs or kings), the rule would have far-reaching consequences for many women living in traditional communities exactly because it is based on patriarchal assumptions about the general subordination of women to men and because it reinforces and perpetuates this subordination.
I would therefore argue that in this case, the court should not wait for the community to develop the customary law rule to bring it in line with the requirements of gender equality, but should intervene (if asked to do so) to declare this customary law rule unconstitutional.
This is a pressing problem for another reason. There is a dirty little secret at the heart of traditional leadership which is never spoken about or acknowledged by Contralesa. The fact is that many traditional communities are controlled by Chiefs who were appointed as proxies of the apartheid government to exercise control on behalf of the apartheid state and they will not want to diminish their power and prestige by amending customary law rules to recognise gender equality. The very system of traditional leadership has been completely subverted by colonialism and apartheid and is far removed from the kind of benign system which made King Moshoeshoe such a revered leader more than hundred years ago.
Maybe it is time to recognise that our whole system of traditional leadership as it has evolved, is deeply problematic and not really compatable with a system of democratic governance. On the one hand one is acutely aware of the need to respect the traditional beliefs and cultural practices of millions of South Africans whose way of live was so fundamentally circumscribed and for ever changed by colonialism and apartheid.
On the other hand the system of customary law and of traditional leadership has been fundamentally subverted and corrupted by the colonial authorities and the apartheid state – often (but not always) with the collusion of traditional leaders. Some Chiefs or other traditional leaders do not always act in the best interest of the community and according to rules of customary law that protect everyone in the community as a member of the community.
Such unscrupolous and unelected leaders often borrow from customary law those parts that suit them and then also rely on common law or statute law rules based on a more individualistic view of the world in order to subvert the very system of rules which organised communal living, which (it could be argued) used to operate for the benefit of all. Instead many traditional leaders now act to cement their own hold on communities and to enforce completely unacceptable and bastardised forms of customary laws on their subjects. This leads to much hardship and suffering on the part of their “subjects” and seems to be in conflict with principles of democracy and the demand for respect of the inherent human dignity of all.
Maybe it is time for the government to return to the original policies regarding traditional leadership adopted by the ANC when they were still in exile and to do away with the undemocratic and often oppressive system of traditional leadership. I suspect this will not happen, but I also suspect customary law will only be able to take its rightful place as an equal and important body of law alongside the common law – as required by the Constitution – when traditional leadership structures are fundamentally reformed and democratised. The current system is undemocratic and (often) oppressive and has no place in a Constitutional democracy.
Source: Constitutionally Speaking
Later I discovered that some of the ideological underpinnings of the Roman Dutch common law were rather suspect, what with its radical assumptions about freedom of contract and a predisposition to favour the powerful and the propertied classes above all others. At the same time it dawned on many that, for better or worse, millions of South Africans lived much of their lives in terms of customary law.
The official view on customary law has thankfully now changed, as the status of customary law in South Africa is constitutionally entrenched. Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised subject to the Constitution. As the Constitutional Court has made clear in the case of Alexkor v Richtersveld Community, customary law must now be regarded as equal with the common law and as an “integral part of our law” and “an independent source of norms within the legal system.” Like any other source of law, customary law has a status that requires respect. Customary law must also not be judged through the lens of the common law.
But what happens if traditional customary law rules – interpreted and applied in its proper context and not with reference to the common law – conflicts with other provisions in the Bill of Rights? This question came to mind when I read about claims by Princess NomaXhosa Sigcawu from the East Cape that she had been overlooked to lead the AmaGcaleka Kingdom and that this was unconstitutional.
NomaXhosa said her mother, Queen Nozizwe, had been her father (King Zwelidumile Sigcawu’s) senior wife. Because she had been a baby when he died, King Xolilizwe, her older brother from another mother, had been made king. When King Xolilizwe died in 2006, one of his sons, Mpendulo, took the throne. The Princess claims that this move – based on the customary law rule in that community that only the oldest male heir could become King or Chief – discriminated against her on the basis of her sex or gender.
This case differs from the case of Shilubane and Others v Mwamitwa, where the Constitutional Court recognised the fact that a traditional community itself could change the rules to allow the female children of chiefs to take up the reigns, despite a previous custom that only the oldest male child could do so. This is because in the case of Princess Sigcawu, the community had not changed the custom and is resisting her attempts to become the Queen.
Commenting on the case, Chief Patekile Holomisa, Congress of Traditional Leaders of South Africa (CONTRALESA) president, said custom dictated who should be a royal leader. “Legitimacy of ubukhosi is derived from custom, not from the Constitution and the Bill of Rights,” he said, referring to kingship. “It is not automatic that a woman as the first-born is a successor. If a traditional council decides to go against the custom, the court can allow that, but we do not accept it.”
As the Constitutional Court makes clear, this view by the President of CONTRALESA is not sustainable. Several provisions in the Constitution affirm that – like common law – customary law is now subject to the Constitution and cannot contravene the Constitution. Moreover, although Courts should try and respect the right of communities that observe systems of customary law and should try and respect their right to develop their law as they wish, where a custom discriminates against women or infringes on the rights of individuals, a court had a duty to declare that custom unconstitutional and to amend it.
There is a serious debate raging in academic circles and also amongst judges on how to deal with this issue. On the one hand, courts – especially the Constitutional Court – is acutely aware that customary law has been disregarded and disrespected in the past and that courts should now recognise the fact that customary law is a living law that can change over time. It is not the rigid and inflexible system of fossilised rules, written down by white colonialists and enforced by white judges during the apartheid era, and courts should be sensitive to this and, where possible, should allow the customary law to be develop by the relevant community themselves.
On the other hand, the courts have a duty to develop customary law rules to bring them in line with the spirit, purport and object of the Bill of Rights. Where customary law rules discriminate against women, they must be developed or declared unconstitutional. As the Court said in Shilubana:
courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.
Whether a court will show deference to customary law and wait for it to develop organically, or whether it will intervene will depend on several factors. These factors would include:
the nature of the law in question, in particular the implications of change for constitutional and other legal rights; the process by which the alleged change has occurred or is occurring; and the vulnerability of parties affected by the law.
It is clear that a customary law rule that prohibits women from becoming traditional leaders like chiefs or queens, unfairly discriminates against women. It is based on patriarchal notions about the “proper” roles of men and women in society and is often justified on the basis that a chief or a king can only become one if he was fathered by a chief or a king. As women cannot father any children, they cannot and should not become chiefs or kings.
This view perpetuates the notion that men – because they father children – have a higher status in society than women. Although very few women will therefore directly be affected by this customary law rule (as very few women are actually the daughters of chiefs or kings), the rule would have far-reaching consequences for many women living in traditional communities exactly because it is based on patriarchal assumptions about the general subordination of women to men and because it reinforces and perpetuates this subordination.
I would therefore argue that in this case, the court should not wait for the community to develop the customary law rule to bring it in line with the requirements of gender equality, but should intervene (if asked to do so) to declare this customary law rule unconstitutional.
This is a pressing problem for another reason. There is a dirty little secret at the heart of traditional leadership which is never spoken about or acknowledged by Contralesa. The fact is that many traditional communities are controlled by Chiefs who were appointed as proxies of the apartheid government to exercise control on behalf of the apartheid state and they will not want to diminish their power and prestige by amending customary law rules to recognise gender equality. The very system of traditional leadership has been completely subverted by colonialism and apartheid and is far removed from the kind of benign system which made King Moshoeshoe such a revered leader more than hundred years ago.
Maybe it is time to recognise that our whole system of traditional leadership as it has evolved, is deeply problematic and not really compatable with a system of democratic governance. On the one hand one is acutely aware of the need to respect the traditional beliefs and cultural practices of millions of South Africans whose way of live was so fundamentally circumscribed and for ever changed by colonialism and apartheid.
On the other hand the system of customary law and of traditional leadership has been fundamentally subverted and corrupted by the colonial authorities and the apartheid state – often (but not always) with the collusion of traditional leaders. Some Chiefs or other traditional leaders do not always act in the best interest of the community and according to rules of customary law that protect everyone in the community as a member of the community.
Such unscrupolous and unelected leaders often borrow from customary law those parts that suit them and then also rely on common law or statute law rules based on a more individualistic view of the world in order to subvert the very system of rules which organised communal living, which (it could be argued) used to operate for the benefit of all. Instead many traditional leaders now act to cement their own hold on communities and to enforce completely unacceptable and bastardised forms of customary laws on their subjects. This leads to much hardship and suffering on the part of their “subjects” and seems to be in conflict with principles of democracy and the demand for respect of the inherent human dignity of all.
Maybe it is time for the government to return to the original policies regarding traditional leadership adopted by the ANC when they were still in exile and to do away with the undemocratic and often oppressive system of traditional leadership. I suspect this will not happen, but I also suspect customary law will only be able to take its rightful place as an equal and important body of law alongside the common law – as required by the Constitution – when traditional leadership structures are fundamentally reformed and democratised. The current system is undemocratic and (often) oppressive and has no place in a Constitutional democracy.
Source: Constitutionally Speaking
Monday, April 19, 2010
How corruption sustains the ANC – and is killing our democracy
Official opposition leader Helen Zille’s latest weekly newsletter offers up an essential analysis of why corruption within the ANC is endemic and how its deep, poisonous tentacles are steadily strangling South Africa’s constitutional democracy.
Read it below:
Why Zuma couldn’t stop corruption, even if he wanted to
The utterances of the ANC today have all the hallmarks of the double-think of George Orwell’s 1984. If you haven’t read the book, double-think involves holding two contradictory ideas in your head at the same time. This means that when your actions contradict your words, you actually believe your own propaganda. Examples of ANC double-think abound, but nowhere is it more apparent than its stance on corruption. How often have we seen commentators praising ANC leaders, including the President, for their tough talk on corruption? It always ends with rhetoric. Action never follows.
When the President launched the ANC’s manifesto before the last election, he said: “Most importantly, the ANC will step up measures in the fight against corruption within its ranks and the State…this will include measures to review the tendering system, to ensure that ANC members in business, public servants and elected representatives do not abuse the State for corrupt practices.”
In his State of the Nation address this year, he said: “We will pay particular attention to combating corruption and fraud in procurement and tender processes…” He said the same thing the year before. Yet, we have seen no measures introduced to actually do anything about corruption.
These repeated anti-corruption promises are deeply ironic given the cloud of corruption that hangs over the President himself. Extreme double-think must be necessary for Zuma to speak of his “zero tolerance” approach to corruption when he knows how many quashed charges hang over his own head. More than that. As he attacks corruption, President Zuma knows that the ANC undermined the independence of the National Prosecuting Authority to avoid ANC leaders, including himself, having to answer corruption charges in court. The Constitution itself is being sacrificed to the ANC’s corruption.
What’s more, the ANC has even set up front companies to institutionalise corruption. Most notorious is Chancellor House. Its purpose is to channel tenders and contracts from the ANC in government to the ANC in business in order to enrich the ANC and its leaders. Straight, institutionalised corruption.
Chancellor House facilitated the deal between Eskom and Hitachi Africa, to manufacture boilers for the proposed Medupi Power Station, from which the ANC stands to make an estimated R1-billion tax free profit. Eskom will have to pay with taxpayers’ money. And, as a result, the ANC will become one of the wealthiest political parties in the world. Let South Africans remember this when they pay their inflated electricity bills.
So, while some in the ANC leadership rail against the proliferation of tenderpreneurs, the ANC has become the tenderpreneur-in-chief. A pattern is emerging here: the more corrupt the ANC becomes, the tougher its anti-corruption stance. Indeed, this is how double-think works. The graver the deed, the greater the falsehood required to neutralise it in one’s mind.
It is time for everyone to realise that corruption is not just an aberration in the ANC that must be ‘rooted out’ from time to time. The ANC needs corruption to survive, it is its lifeblood. It needs it to fund its election campaigns. It needs it to pay the loyalty networks necessary for ANC leaders to entrench their power. And it needs corruption to pay for its leadership’s lifestyles. ANC leaders in the party, the state, and in business have become an interlocked network of patronage and corruption. Everyone knows that everyone else is corrupt, so they cover up for each other, and abuse power to tighten their grip, undermining independent institutions and eliminating opposition both inside and outside the Party.
In the process, the ANC is turning South Africa into a criminal state. What will it take to get us out of this sordid mess?
The obvious thing would be for President Zuma to stop talking about corruption and take decisive action to actually expose and prevent it. He could announce anti-corruption measures such as preventing political parties from doing business with the state. He could announce laws which prevent government employees from doing business with government. And, he could stop the deployment of cadres to parastatals and institutions integral to the fight against corruption, such as the National Prosecuting Authority (NPA). He could re-instate the independence of the criminal justice system to expose and prosecute corruption without fear or favour.
But he cannot do any of these things without exposing himself and his closest political allies to criminal prosecution. The criminal justice system has been perverted as an instrument for persecuting political opponents and protecting political allies. But even this selective use of the criminal justice system is becoming difficult because the entire ANC edifice — allies and opponents alike — are caught in what Allister Sparks calls a ‘corruption gridlock’. Senior ANC members have so much dirt on each other, that they dare not take action against corruption. If one goes down, he will take the rest down with them. This is precisely what Jacob Zuma himself threatened to do when faced with prosecution relating to the arms deal before he became President.
This explains why the corruption in the arms deal was so successfully covered up. It explains why Julius Malema was able to get away with what he did and said before any rebuke whatsoever from Zuma. It explains why Schabir Shaik is still on medical parole, despite no evidence that he is terminally ill.
In all of these cases, the ANC leadership is paralysed because of its dubious past and future interest in maintaining the status quo. Zuma cannot go beyond rhetoric and take real action against corruption for fear of alienating those who have enough information to bring him down. His time and energy is spent placating those who hold this power over him instead of governing. This is the consequence of endemic corruption.
Most people think Zuma needed to avoid jail so he could become President. Actually, the opposite is true. Zuma needed to become President so that he could avoid jail.
Now that he has succeeded, Zuma is paralysed as a President. You can be sure that nothing will come of his rebuke of Malema. There will be no tough anti-corruption measures taken while he is in office. And, in time, Schabir Shaik will receive a presidential pardon.
If we dig deep enough, I believe we would discover that Jacob Zuma continues to benefit from corrupt relationships to this day. The lifestyle of his family is too lavish to be affordable on his presidential income. We wonder how he can spend R65 million – which he has insisted is his own money – renovating his residence at Nkandla. And we marvel at how he can support his wives, his fiancée and 20 children on a single salary.
But we also know that his family members, including his wives, are involved in over 100 companies – some of which benefit from state contracts. It was therefore not surprising that Zuma missed the deadline to declare his financial interests by 10 months, and only disclosed his assets when public pressure forced him to. The irresistible inference is that his advisors were sanitising his business interests for public consumption.
All of this tells us why Zuma cannot get tough on corruption, even if he wanted to. The cronies he relies on for political support benefit from corruption too much. Not only this, the ANC benefits. Most of all, Zuma and his family benefit.
This week, the DA tabled private members legislation in the National Assembly that, if passed, would put an end to political parties doing business with the state. This would have prevented the ANC from using its influence at Eskom to grant a multi-billion rand state contract to a company it has a stake in.
Also this week, we announced new legislation in the Western Cape, where the DA governs, that will prevent state employees and their families from doing business with the state, because of the clear conflict of interest this presents.
I have challenged President Zuma to implement this legislation at national level and I look forward to seeing his response. But I am not holding my breath. After all, he is caught in a corruption gridlock. He has too much to lose from taking decisive action against graft.
But what Zuma and his cronies need to understand is that, if they do not act against corruption in their ranks soon, they will lose in the end. They must remember that we live in a democracy and that they are subject to the will of the people. The time will come when even the ANC’s staunchest supporters will realise what their party has become. The only remedy available in a democracy is to vote for an alternative.
As ANC NEC member Jeremy Cronin said this week: “The ANC should realise overwhelmingly that the honeymoon is over.”
Source: Afrodissident: Alex Matthews
Read it below:
Why Zuma couldn’t stop corruption, even if he wanted to
The utterances of the ANC today have all the hallmarks of the double-think of George Orwell’s 1984. If you haven’t read the book, double-think involves holding two contradictory ideas in your head at the same time. This means that when your actions contradict your words, you actually believe your own propaganda. Examples of ANC double-think abound, but nowhere is it more apparent than its stance on corruption. How often have we seen commentators praising ANC leaders, including the President, for their tough talk on corruption? It always ends with rhetoric. Action never follows.
When the President launched the ANC’s manifesto before the last election, he said: “Most importantly, the ANC will step up measures in the fight against corruption within its ranks and the State…this will include measures to review the tendering system, to ensure that ANC members in business, public servants and elected representatives do not abuse the State for corrupt practices.”
In his State of the Nation address this year, he said: “We will pay particular attention to combating corruption and fraud in procurement and tender processes…” He said the same thing the year before. Yet, we have seen no measures introduced to actually do anything about corruption.
These repeated anti-corruption promises are deeply ironic given the cloud of corruption that hangs over the President himself. Extreme double-think must be necessary for Zuma to speak of his “zero tolerance” approach to corruption when he knows how many quashed charges hang over his own head. More than that. As he attacks corruption, President Zuma knows that the ANC undermined the independence of the National Prosecuting Authority to avoid ANC leaders, including himself, having to answer corruption charges in court. The Constitution itself is being sacrificed to the ANC’s corruption.
What’s more, the ANC has even set up front companies to institutionalise corruption. Most notorious is Chancellor House. Its purpose is to channel tenders and contracts from the ANC in government to the ANC in business in order to enrich the ANC and its leaders. Straight, institutionalised corruption.
Chancellor House facilitated the deal between Eskom and Hitachi Africa, to manufacture boilers for the proposed Medupi Power Station, from which the ANC stands to make an estimated R1-billion tax free profit. Eskom will have to pay with taxpayers’ money. And, as a result, the ANC will become one of the wealthiest political parties in the world. Let South Africans remember this when they pay their inflated electricity bills.
So, while some in the ANC leadership rail against the proliferation of tenderpreneurs, the ANC has become the tenderpreneur-in-chief. A pattern is emerging here: the more corrupt the ANC becomes, the tougher its anti-corruption stance. Indeed, this is how double-think works. The graver the deed, the greater the falsehood required to neutralise it in one’s mind.
It is time for everyone to realise that corruption is not just an aberration in the ANC that must be ‘rooted out’ from time to time. The ANC needs corruption to survive, it is its lifeblood. It needs it to fund its election campaigns. It needs it to pay the loyalty networks necessary for ANC leaders to entrench their power. And it needs corruption to pay for its leadership’s lifestyles. ANC leaders in the party, the state, and in business have become an interlocked network of patronage and corruption. Everyone knows that everyone else is corrupt, so they cover up for each other, and abuse power to tighten their grip, undermining independent institutions and eliminating opposition both inside and outside the Party.
In the process, the ANC is turning South Africa into a criminal state. What will it take to get us out of this sordid mess?
The obvious thing would be for President Zuma to stop talking about corruption and take decisive action to actually expose and prevent it. He could announce anti-corruption measures such as preventing political parties from doing business with the state. He could announce laws which prevent government employees from doing business with government. And, he could stop the deployment of cadres to parastatals and institutions integral to the fight against corruption, such as the National Prosecuting Authority (NPA). He could re-instate the independence of the criminal justice system to expose and prosecute corruption without fear or favour.
But he cannot do any of these things without exposing himself and his closest political allies to criminal prosecution. The criminal justice system has been perverted as an instrument for persecuting political opponents and protecting political allies. But even this selective use of the criminal justice system is becoming difficult because the entire ANC edifice — allies and opponents alike — are caught in what Allister Sparks calls a ‘corruption gridlock’. Senior ANC members have so much dirt on each other, that they dare not take action against corruption. If one goes down, he will take the rest down with them. This is precisely what Jacob Zuma himself threatened to do when faced with prosecution relating to the arms deal before he became President.
This explains why the corruption in the arms deal was so successfully covered up. It explains why Julius Malema was able to get away with what he did and said before any rebuke whatsoever from Zuma. It explains why Schabir Shaik is still on medical parole, despite no evidence that he is terminally ill.
In all of these cases, the ANC leadership is paralysed because of its dubious past and future interest in maintaining the status quo. Zuma cannot go beyond rhetoric and take real action against corruption for fear of alienating those who have enough information to bring him down. His time and energy is spent placating those who hold this power over him instead of governing. This is the consequence of endemic corruption.
Most people think Zuma needed to avoid jail so he could become President. Actually, the opposite is true. Zuma needed to become President so that he could avoid jail.
Now that he has succeeded, Zuma is paralysed as a President. You can be sure that nothing will come of his rebuke of Malema. There will be no tough anti-corruption measures taken while he is in office. And, in time, Schabir Shaik will receive a presidential pardon.
If we dig deep enough, I believe we would discover that Jacob Zuma continues to benefit from corrupt relationships to this day. The lifestyle of his family is too lavish to be affordable on his presidential income. We wonder how he can spend R65 million – which he has insisted is his own money – renovating his residence at Nkandla. And we marvel at how he can support his wives, his fiancée and 20 children on a single salary.
But we also know that his family members, including his wives, are involved in over 100 companies – some of which benefit from state contracts. It was therefore not surprising that Zuma missed the deadline to declare his financial interests by 10 months, and only disclosed his assets when public pressure forced him to. The irresistible inference is that his advisors were sanitising his business interests for public consumption.
All of this tells us why Zuma cannot get tough on corruption, even if he wanted to. The cronies he relies on for political support benefit from corruption too much. Not only this, the ANC benefits. Most of all, Zuma and his family benefit.
This week, the DA tabled private members legislation in the National Assembly that, if passed, would put an end to political parties doing business with the state. This would have prevented the ANC from using its influence at Eskom to grant a multi-billion rand state contract to a company it has a stake in.
Also this week, we announced new legislation in the Western Cape, where the DA governs, that will prevent state employees and their families from doing business with the state, because of the clear conflict of interest this presents.
I have challenged President Zuma to implement this legislation at national level and I look forward to seeing his response. But I am not holding my breath. After all, he is caught in a corruption gridlock. He has too much to lose from taking decisive action against graft.
But what Zuma and his cronies need to understand is that, if they do not act against corruption in their ranks soon, they will lose in the end. They must remember that we live in a democracy and that they are subject to the will of the people. The time will come when even the ANC’s staunchest supporters will realise what their party has become. The only remedy available in a democracy is to vote for an alternative.
As ANC NEC member Jeremy Cronin said this week: “The ANC should realise overwhelmingly that the honeymoon is over.”
Source: Afrodissident: Alex Matthews
Saturday, March 27, 2010
Malema gagged
ANC Youth League leader Julius Malema has been muzzled - on the same day that another youth movement threatened to kill him. If Malema is caught singing Dubula ibhunu (Kill the boer), he could be arrested and charged with inciting murder.
Yesterday, in a landmark ruling slated by the ANC, Acting Johannesburg High Court Judge Leon Halgryn declared the singing and publication of the song "unconstitutional and unlawful" and said any person found in violation of the court order could face charges of incitement to murder. And, after Malema claimed Sharpeville had been hijacked by the Pan Africanist Congress on the 50th anniversary of the massacre, the PAC Youth Congress told Malema to apologise or end up "in a hospital or a mortuary".
Yesterday's urgent application had been brought by Willem Harmse, who insinuated that Malema's singing of the song in public had increased farm murders. The Freedom Front Plus also laid a charge of incitement in the Equality Court. Harmse's application was opposed by fellow Mpumalanga businessman Muhammed Vawda, who, in his replying affidavits, argued that the song was not an assault on white people, but on apartheid. He said the song means "kill apartheid".
Judge Halgryn ordered "that the utterance and/publication of the words 'Dubula Ibhunu' is unconstitutional and unlawful. Dubula Ibhunu translated means 'shoot the boer/ white man'. The publication and chanting of the words 'dubula ibhunu' prima facie satisfies the crime of incitement". Harmse and Vawda, both members of the Society for the Protection of Our Constitution, embraced outside court after the ruling and vowed to continue with their campaign. Harmse hailed the verdict, asking: "How would Malema feel if I sing the song 'kill the black man'?"
Freedom Front Plus Leader Pieter Mulder welcomed the decision, saying it would strengthen their case against Malema in the Equality Court.
The ANC has briefed its lawyers to fight the ruling at the Constitutional Court. Party spokesman Jackson Mthembu accused the Johannesburg High Court of failing to call the ANC as an expert witness and therefore coming to the wrong conclusion. "We believe this song, like many others that were sung during the struggle days, is part of our history and heritage. It will be very unfortunate if through our courts our history and heritage were outlawed."
Source: IoL
Yesterday, in a landmark ruling slated by the ANC, Acting Johannesburg High Court Judge Leon Halgryn declared the singing and publication of the song "unconstitutional and unlawful" and said any person found in violation of the court order could face charges of incitement to murder. And, after Malema claimed Sharpeville had been hijacked by the Pan Africanist Congress on the 50th anniversary of the massacre, the PAC Youth Congress told Malema to apologise or end up "in a hospital or a mortuary".
Yesterday's urgent application had been brought by Willem Harmse, who insinuated that Malema's singing of the song in public had increased farm murders. The Freedom Front Plus also laid a charge of incitement in the Equality Court. Harmse's application was opposed by fellow Mpumalanga businessman Muhammed Vawda, who, in his replying affidavits, argued that the song was not an assault on white people, but on apartheid. He said the song means "kill apartheid".
Judge Halgryn ordered "that the utterance and/publication of the words 'Dubula Ibhunu' is unconstitutional and unlawful. Dubula Ibhunu translated means 'shoot the boer/ white man'. The publication and chanting of the words 'dubula ibhunu' prima facie satisfies the crime of incitement". Harmse and Vawda, both members of the Society for the Protection of Our Constitution, embraced outside court after the ruling and vowed to continue with their campaign. Harmse hailed the verdict, asking: "How would Malema feel if I sing the song 'kill the black man'?"
Freedom Front Plus Leader Pieter Mulder welcomed the decision, saying it would strengthen their case against Malema in the Equality Court.
The ANC has briefed its lawyers to fight the ruling at the Constitutional Court. Party spokesman Jackson Mthembu accused the Johannesburg High Court of failing to call the ANC as an expert witness and therefore coming to the wrong conclusion. "We believe this song, like many others that were sung during the struggle days, is part of our history and heritage. It will be very unfortunate if through our courts our history and heritage were outlawed."
Source: IoL
Thursday, March 18, 2010
Hanging himself in public?
Julius Malema's recent "struggle song" has led to another charge of hate speech against him -- in the same week that the Equality Court found him guilty of the same charge deriving from his comments on Jacob Zuma's rape accuser.
The African National Congress Youth League (ANCYL) president sang the song at his 29th birthday celebrations in Limpopo this month, and again last week while addressing students at a rally at the University of Johannesburg.
The song lyrics include "dubul' ibhunu" (shoot the Boer), and "ziyareypa lezinja" (these dogs are raping). [Full lyrics below].
ANC secretary general Gwede Mantashe defended the song last weekend, saying: "Anyone who relegates this song to hate speech is part of those who are trying to erase our history. That would be unfortunate, as it is a struggle song that was used when we were still fighting for liberation. This song will not be erased from our history because of people who are sensitive."
The song echoes the slogan "Kill the Boer, kill the farmer", associated especially with late ANCYL president Peter Mokaba. On Monday this week, civil rights group AfriForum Youth laid a charge of hate speech against Malema at the Equality Court.
This was the same day on which the Equality Court found Malema guilty of hate speech for comments he made about Zuma's rape accuser. Addressing students at the Cape Peninsula University of Technology in January 2009, Malema said, "When a woman didn't enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning that lady requested breakfast and taxi money"
The Mail & Guardian asked five high-profile experts on freedom of speech, constitutional law and both Afrikaner and black nationalism what they thought of Malema's recent bursts into song.
* Hermann Giliomee, historian and author of Afrikaners: Biography of a People, said the song was "dangerous and likely to incite some people".
* Pierre de Vos, constitutional law lecturer at the University of Cape Town, said songs like these were sung at a specific time "when an apartheid government needed to be overthrown. Because we are in a democracy, there is no need for those songs. If you follow human rights, Mr Mantashe's defence will not hold -- apartheid is no more."
Because of Malema's history and the insecurity of minority groups in the country, "some people are reacting to the person saying it", instead of what is being said, De Vos said.
* Melissa Moore, acting director of the Freedom of Expression Institute, said, "It is extremely worrying that the leaders of our country view this kind of speech as acceptable. This indicates a blatant disregard and disrespect for fundamental human rights and the well-being of South African society.
"Malema's statement amounts to hate speech, which is a form of speech that is not protected by the Constitution. Section 16(2) (c) of the Constitution prohibits the advocacy of hatred that is based on race, ethnicity, gender, religion and that constitutes incitement to cause harm. The statement clearly incites harm to a specific group of people based on their race and ethnicity. Such speech should not be condoned and should not go unpunished."
* Zandi Radebe, spokesperson for Blackwash, a Black Consciousness youth social movement based in Soweto, said, "Malema's behaviour is predictable." Blackwash condemns any hate speech, regardless of who it comes from. "For me the issue is: Why do we continuously applaud the behaviour of people like Julius Malema? He makes the same noise and we give him the same reaction, I'm really tired of this."
* Jane Duncan, professor of journalism at Rhodes University, said, "Struggle songs help people to remember the spirit of resistance that led to South Africa's transition to democracy. For as long as South Africa remains untransformed on many levels of the social formation -- for instance, racism or economic inequalities remain -- these songs will continue to be sung, as people take courage from the spirit of resistance from the past to overcome the injustices of the present."
"The song as sung by Mokaba could not be considered hate speech, even when people sung it at Mokaba's funeral, and the Human Rights Commission [HRC] erred in making this judgement at the time. In order for speech to constitute incitement to cause harm, specific targets of that harm need to be identified. The song cannot be said to be directed at specific individuals, and in fact, the song is strongly metaphorical in that it refers to the system of apartheid being killed, so the specificity of speech that is necessary for something to constitute incitement to cause harm was absent.
"In addition, the HRC extended the definition of harm too far, to include psychological harm to 'minorities or vulnerable groups': forms of harm that are virtually impossible to prove as they are too subjective. If the song was not hate speech then, then it is doubtful that Malema's rendition of the song constituted hate speech either.
"The point is that these struggle songs will not go away, and banning them out of existence will merely reinforce their mystique, leading to greater determination to chant them.
"The tide is turning against Malema; every time he opens his mouth, it becomes clearer that he is not leadership material. He should be allowed the space to hang himself in public. The tendency of many social actors to cry 'hate speech' every time Malema says something outrageous may backfire against those with genuine grievances in the long run.
"The Equality Court's recent ruling against Malema's 'hate speech' underlines the problem. His statements were stupid and misogynistic, but the court's ruling has broadened the definition of hate speech so much that speech that is merely considered to be harmful can now be proscribed. This means that huge swathes of speech on political matters can now be punished. Society as a whole is set back by such rulings, and it is important for us to see this bigger picture and not be blinded by our disdain for Malema. Future judgements proscribing socially necessary speech will be based on this precedent."
Lyrics of the song sung by Malema during his birthday speech (transcribed and translated from the Times's online audio of Malema's birthday speech):
Ayasab' amagwala (the cowards are scared)
dubula dubula (shoot shoot)
ayeah
dubula dubula (shoot shoot )
ayasab 'a magwala (the cowards are scared)
dubula dubula (shoot shoot)
awu yoh
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
awe mama ndiyekele (mother leave me be)
awe mama iyeah (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Ayasab' amagwala (the cowards are scared)
dubula dubula (shoot shoot )
ayeah
dubula dubula (shoot shoot)
ayasab 'a magwala (the cowards are scared)
dubula dubula (shoot shoot)
iii yoh
dubula dubala (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iyeah
dubula dubula (shoot shoot)
Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iiiyo
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Ayasab' amagwala (the cowards are scared)
Dubula dubula (shoot shoot)
Ay iyeah
Dubula dubula (shoot shoot)
Ayasab' amagwala (the cowards are scared)
Dubula dubula (shoot shoot)
Ay iyeah
Source: Mail & Guardian
The African National Congress Youth League (ANCYL) president sang the song at his 29th birthday celebrations in Limpopo this month, and again last week while addressing students at a rally at the University of Johannesburg.
The song lyrics include "dubul' ibhunu" (shoot the Boer), and "ziyareypa lezinja" (these dogs are raping). [Full lyrics below].
ANC secretary general Gwede Mantashe defended the song last weekend, saying: "Anyone who relegates this song to hate speech is part of those who are trying to erase our history. That would be unfortunate, as it is a struggle song that was used when we were still fighting for liberation. This song will not be erased from our history because of people who are sensitive."
The song echoes the slogan "Kill the Boer, kill the farmer", associated especially with late ANCYL president Peter Mokaba. On Monday this week, civil rights group AfriForum Youth laid a charge of hate speech against Malema at the Equality Court.
This was the same day on which the Equality Court found Malema guilty of hate speech for comments he made about Zuma's rape accuser. Addressing students at the Cape Peninsula University of Technology in January 2009, Malema said, "When a woman didn't enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning that lady requested breakfast and taxi money"
The Mail & Guardian asked five high-profile experts on freedom of speech, constitutional law and both Afrikaner and black nationalism what they thought of Malema's recent bursts into song.
* Hermann Giliomee, historian and author of Afrikaners: Biography of a People, said the song was "dangerous and likely to incite some people".
* Pierre de Vos, constitutional law lecturer at the University of Cape Town, said songs like these were sung at a specific time "when an apartheid government needed to be overthrown. Because we are in a democracy, there is no need for those songs. If you follow human rights, Mr Mantashe's defence will not hold -- apartheid is no more."
Because of Malema's history and the insecurity of minority groups in the country, "some people are reacting to the person saying it", instead of what is being said, De Vos said.
* Melissa Moore, acting director of the Freedom of Expression Institute, said, "It is extremely worrying that the leaders of our country view this kind of speech as acceptable. This indicates a blatant disregard and disrespect for fundamental human rights and the well-being of South African society.
"Malema's statement amounts to hate speech, which is a form of speech that is not protected by the Constitution. Section 16(2) (c) of the Constitution prohibits the advocacy of hatred that is based on race, ethnicity, gender, religion and that constitutes incitement to cause harm. The statement clearly incites harm to a specific group of people based on their race and ethnicity. Such speech should not be condoned and should not go unpunished."
* Zandi Radebe, spokesperson for Blackwash, a Black Consciousness youth social movement based in Soweto, said, "Malema's behaviour is predictable." Blackwash condemns any hate speech, regardless of who it comes from. "For me the issue is: Why do we continuously applaud the behaviour of people like Julius Malema? He makes the same noise and we give him the same reaction, I'm really tired of this."
* Jane Duncan, professor of journalism at Rhodes University, said, "Struggle songs help people to remember the spirit of resistance that led to South Africa's transition to democracy. For as long as South Africa remains untransformed on many levels of the social formation -- for instance, racism or economic inequalities remain -- these songs will continue to be sung, as people take courage from the spirit of resistance from the past to overcome the injustices of the present."
"The song as sung by Mokaba could not be considered hate speech, even when people sung it at Mokaba's funeral, and the Human Rights Commission [HRC] erred in making this judgement at the time. In order for speech to constitute incitement to cause harm, specific targets of that harm need to be identified. The song cannot be said to be directed at specific individuals, and in fact, the song is strongly metaphorical in that it refers to the system of apartheid being killed, so the specificity of speech that is necessary for something to constitute incitement to cause harm was absent.
"In addition, the HRC extended the definition of harm too far, to include psychological harm to 'minorities or vulnerable groups': forms of harm that are virtually impossible to prove as they are too subjective. If the song was not hate speech then, then it is doubtful that Malema's rendition of the song constituted hate speech either.
"The point is that these struggle songs will not go away, and banning them out of existence will merely reinforce their mystique, leading to greater determination to chant them.
"The tide is turning against Malema; every time he opens his mouth, it becomes clearer that he is not leadership material. He should be allowed the space to hang himself in public. The tendency of many social actors to cry 'hate speech' every time Malema says something outrageous may backfire against those with genuine grievances in the long run.
"The Equality Court's recent ruling against Malema's 'hate speech' underlines the problem. His statements were stupid and misogynistic, but the court's ruling has broadened the definition of hate speech so much that speech that is merely considered to be harmful can now be proscribed. This means that huge swathes of speech on political matters can now be punished. Society as a whole is set back by such rulings, and it is important for us to see this bigger picture and not be blinded by our disdain for Malema. Future judgements proscribing socially necessary speech will be based on this precedent."
Lyrics of the song sung by Malema during his birthday speech (transcribed and translated from the Times's online audio of Malema's birthday speech):
Ayasab' amagwala (the cowards are scared)
dubula dubula (shoot shoot)
ayeah
dubula dubula (shoot shoot )
ayasab 'a magwala (the cowards are scared)
dubula dubula (shoot shoot)
awu yoh
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
awe mama ndiyekele (mother leave me be)
awe mama iyeah (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Ayasab' amagwala (the cowards are scared)
dubula dubula (shoot shoot )
ayeah
dubula dubula (shoot shoot)
ayasab 'a magwala (the cowards are scared)
dubula dubula (shoot shoot)
iii yoh
dubula dubala (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iyeah
dubula dubula (shoot shoot)
Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iiiyo
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Aw dubul'ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
Ayasab' amagwala (the cowards are scared)
Dubula dubula (shoot shoot)
Ay iyeah
Dubula dubula (shoot shoot)
Ayasab' amagwala (the cowards are scared)
Dubula dubula (shoot shoot)
Ay iyeah
Source: Mail & Guardian
Wednesday, March 10, 2010
Malema under fire for 'kill the boer' song
ANC Youth League leader Julius Malema is facing a barrage of complaints to the police and chapter nine institutions over his latest racial outburst, after he led students in singing "kill the boer".
Freedom Front Plus leader and Deputy Agriculture Minister Pieter Mulder will on Wednesday lodge a hate speech complaint against Malema at the Brooklyn police station, Pretoria. Mulder said the use of the slogan was a contravention of section 16 of the Constitution. "Freedom of speech does not include the advocacy of hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm and has in any case been declared as hate speech by the courts."
Malema, according to the Sowetan, led students at the University of Johannesburg in a song saying: "Shoot the boere [farmers], they are rapists". He told students that former president Nelson Mandela had convinced blacks to forgive, but they should never forget what was done to them.
AfriForum Youth national chairman Ernst Roets said the organisation would submit a complaint to the Equality Court in Johannesburg. Roets said it was not the first time Malema sang the song reminiscent of the late Peter Mokaba. He sang it at his birthday celebrations in Polokwane last week, in a province where six farmers were murdered in the past month, Roets said. "Julius Malema has become the biggest embarrassment of not only the youth, but also of the country. "There is no way in which you can dismiss the song as something that simply has to be viewed in a political context and that doesn't have any real consequences," he said.
The Afrikanerbond lodged a complaint with the SA Human Rights Commission (SAHRC). "It is clear that neither the ANCYL or the ANC have the political will or power to reign in Mr Malema and his daily tirades against everything we hold dear in South Africa," it said in a statement. "We trust that the Human Rights Commission will act in a manner which will restore our faith in this institution as well as in the promotion of human rights."
In the complaint, Afrikanerbond chief secretary Jan Bosman said there were about 750 to 850 attacks on farms each year, adding that last year alone 120 people were murdered on farms. "Incitement to violence is a serious offence and with the current problem with rural safety we simply do not need a politician such as Mr Malema to exacerbate the problem," he said.
In 2007, the slogan "kill the farmer, kill the boer" was defined as hate speech by the commission. The FF Plus lodged a complaint with the SAHRC after ANC members used the slogan during two public meetings in 2006. Initially, the commission said the slogan did not constitute hate speech, but was an instance, although an undesirable one, of the right to freedom of expression. However, the party successfully appealed against the finding.
Theunis Botha, acting chair of the Christian Democratic Alliance, said Malema's comments could not be ignored and dismissed as a joke. "By the ANC not denouncing statements made by Malema, the joker has now effectively countered one of the rare occasions on which farm murders are condemned by the Minister of Police [Nathi Mthethwa]. "While the slaughtering of farmers continues, we are again back to square one as far as the government's attitude to these farm murders are concerned."
Mthethwa on Monday said farm murders should not be politicised. He said additional police and efficient tactics would be employed to mitigate farm and rural murders. "Surely, if Mthethwa calls on politicians not to make politics of farm murders, the same should apply to ANC office bearers, such as Malema. "By not banning Malema from the ANC, which is apparently, the only way to cut him to size, the country is done a great disservice," Botha said.
The ANC on Wednesday said it had not yet decided whether it would talk to Malema about his comments.
Source: IoL
Freedom Front Plus leader and Deputy Agriculture Minister Pieter Mulder will on Wednesday lodge a hate speech complaint against Malema at the Brooklyn police station, Pretoria. Mulder said the use of the slogan was a contravention of section 16 of the Constitution. "Freedom of speech does not include the advocacy of hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm and has in any case been declared as hate speech by the courts."
Malema, according to the Sowetan, led students at the University of Johannesburg in a song saying: "Shoot the boere [farmers], they are rapists". He told students that former president Nelson Mandela had convinced blacks to forgive, but they should never forget what was done to them.
AfriForum Youth national chairman Ernst Roets said the organisation would submit a complaint to the Equality Court in Johannesburg. Roets said it was not the first time Malema sang the song reminiscent of the late Peter Mokaba. He sang it at his birthday celebrations in Polokwane last week, in a province where six farmers were murdered in the past month, Roets said. "Julius Malema has become the biggest embarrassment of not only the youth, but also of the country. "There is no way in which you can dismiss the song as something that simply has to be viewed in a political context and that doesn't have any real consequences," he said.
The Afrikanerbond lodged a complaint with the SA Human Rights Commission (SAHRC). "It is clear that neither the ANCYL or the ANC have the political will or power to reign in Mr Malema and his daily tirades against everything we hold dear in South Africa," it said in a statement. "We trust that the Human Rights Commission will act in a manner which will restore our faith in this institution as well as in the promotion of human rights."
In the complaint, Afrikanerbond chief secretary Jan Bosman said there were about 750 to 850 attacks on farms each year, adding that last year alone 120 people were murdered on farms. "Incitement to violence is a serious offence and with the current problem with rural safety we simply do not need a politician such as Mr Malema to exacerbate the problem," he said.
In 2007, the slogan "kill the farmer, kill the boer" was defined as hate speech by the commission. The FF Plus lodged a complaint with the SAHRC after ANC members used the slogan during two public meetings in 2006. Initially, the commission said the slogan did not constitute hate speech, but was an instance, although an undesirable one, of the right to freedom of expression. However, the party successfully appealed against the finding.
Theunis Botha, acting chair of the Christian Democratic Alliance, said Malema's comments could not be ignored and dismissed as a joke. "By the ANC not denouncing statements made by Malema, the joker has now effectively countered one of the rare occasions on which farm murders are condemned by the Minister of Police [Nathi Mthethwa]. "While the slaughtering of farmers continues, we are again back to square one as far as the government's attitude to these farm murders are concerned."
Mthethwa on Monday said farm murders should not be politicised. He said additional police and efficient tactics would be employed to mitigate farm and rural murders. "Surely, if Mthethwa calls on politicians not to make politics of farm murders, the same should apply to ANC office bearers, such as Malema. "By not banning Malema from the ANC, which is apparently, the only way to cut him to size, the country is done a great disservice," Botha said.
The ANC on Wednesday said it had not yet decided whether it would talk to Malema about his comments.
Source: IoL
That's 'General' Cele to you
Police National Commissioner Bheki Cele has insisted he be addressed as "general" from now on after the approval of military rankings for the police, Beeld reported on Wednesday. "I am now called 'general'," he told Parliament's portfolio committee on police on Tuesday. However, committee members continued calling him "commissioner", reported the Afrikaans daily.
Police Minister Nathi Mthethwa's spokesperson, Zweli Mnisi, told the South African Press Association that the military rankings for police had been approved by the Cabinet. "Currently, we just want to finalise some of the [details] around it, but we will make a public announcement soon," Mnisi said.
Mthethwa said in February the implementation of the new ranks would be announced within a "few weeks". But he also insisted Cele could already be addressed as "general".
The idea was first mooted in September last year when President Jacob Zuma addressed police station commanders from across the country in Pretoria. Mthethwa said the idea was to bring the discipline of the military back into the police.
Source: Mail & Guardian
Section 207 of the Constitution of South Africa
"Control of police service
1. The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service.
2. The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing."
Parliament's portfolio committee on police are correct in referring to the National Commissioner as Commissioner ... regardless of what the "General" may think.
Section 199 (2) of the Constitution of South Africa "The defence force is the only lawful military force in the Republic."
Police National Commissioner Bheki Cele is therefore acting unlawfully by referring to himself as "General".
Source: Constitutional Court
Police Minister Nathi Mthethwa's spokesperson, Zweli Mnisi, told the South African Press Association that the military rankings for police had been approved by the Cabinet. "Currently, we just want to finalise some of the [details] around it, but we will make a public announcement soon," Mnisi said.
Mthethwa said in February the implementation of the new ranks would be announced within a "few weeks". But he also insisted Cele could already be addressed as "general".
The idea was first mooted in September last year when President Jacob Zuma addressed police station commanders from across the country in Pretoria. Mthethwa said the idea was to bring the discipline of the military back into the police.
Source: Mail & Guardian
Section 207 of the Constitution of South Africa
"Control of police service
1. The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service.
2. The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing."
Parliament's portfolio committee on police are correct in referring to the National Commissioner as Commissioner ... regardless of what the "General" may think.
Section 199 (2) of the Constitution of South Africa "The defence force is the only lawful military force in the Republic."
Police National Commissioner Bheki Cele is therefore acting unlawfully by referring to himself as "General".
Source: Constitutional Court
Malema on a racist tirade
ANC Youth League president Julius Malema went on a racist tirade yesterday, calling for white people to be shot and accused them of being rapists. Malema led students at the University of Johannesburg in a song saying: “Shoot the boere, they are rapists.”
He also reminded his audience that while they should forgive whites for apartheid, they should not forget. “Mandela taught us to forgive them but we must not forget,” he said.
Human Rights Commission spokesperson Vincent Moaga said those who felt aggrieved by the song could approach the commission. ANC spokesperson Jackson Mthembu declined to comment.
Malema dared the police to arrest him should they establish that he broke the laws of the country by not paying his tax . “I am not above the law. If there is any crime I have committed I am asking to be arrested,” Malema said. He also called on the SA Revenue Service (Sars) to access his bank account and should they find millions of rands he allegedly amassed through tenders, to “nationalise” the money. “I am giving you permission to take everything you find in my account and give it to the poor. I will never steal from the poor. I know poverty. I am a child of a domestic worker who died poor.”
Malema then turned to Cosatu general secretary Zwelinzima Vavi, whom he attacked for his recent call for lifestyle audits. He said lifestyle audits were not Vavi’s concepts and had been conducted in previous years by the Scorpions and Sars. “Last year alone Sars conducted more than 10000 lifestyle audits. Why should we be subjected to a factional lifestyle audit which is aimed at destroying people. I will never be ambushed or intimidated. “It is the people of Alexandra who can call me to come and account, not the people of Sandton.”
He called on the students to march to the offices of the Department of Higher Education to demand free education. “Stop toyi-toying here. Go where free education must be provided.”
Source: The Sowetan
He also reminded his audience that while they should forgive whites for apartheid, they should not forget. “Mandela taught us to forgive them but we must not forget,” he said.
Human Rights Commission spokesperson Vincent Moaga said those who felt aggrieved by the song could approach the commission. ANC spokesperson Jackson Mthembu declined to comment.
Malema dared the police to arrest him should they establish that he broke the laws of the country by not paying his tax . “I am not above the law. If there is any crime I have committed I am asking to be arrested,” Malema said. He also called on the SA Revenue Service (Sars) to access his bank account and should they find millions of rands he allegedly amassed through tenders, to “nationalise” the money. “I am giving you permission to take everything you find in my account and give it to the poor. I will never steal from the poor. I know poverty. I am a child of a domestic worker who died poor.”
Malema then turned to Cosatu general secretary Zwelinzima Vavi, whom he attacked for his recent call for lifestyle audits. He said lifestyle audits were not Vavi’s concepts and had been conducted in previous years by the Scorpions and Sars. “Last year alone Sars conducted more than 10000 lifestyle audits. Why should we be subjected to a factional lifestyle audit which is aimed at destroying people. I will never be ambushed or intimidated. “It is the people of Alexandra who can call me to come and account, not the people of Sandton.”
He called on the students to march to the offices of the Department of Higher Education to demand free education. “Stop toyi-toying here. Go where free education must be provided.”
Source: The Sowetan
Friday, February 26, 2010
Selebi’s Zuma option
Pierre De Vos has reported on his Blog Constitutionally Speaking the ETV news reports that lawyers for Jackie Selebi are to approach Menzi Simelane, National Director of Public Prosecutions (NDPP), in order to have the trial of Jackie Selebi stopped. According to De Vos, ETV news reports that Selebi will argue that there was a conspiracy against him and that the prosecution was tainted by prosecutorial misconduct.
In his article, he refers to section 179 of the South African Constitution and prosecution policy agreed to between the NDPP and the Minister of Justice.
According the De Vos, "If the ETV report is correct, it would present Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell."
Source: Constitutionally Speaking
In his article, he refers to section 179 of the South African Constitution and prosecution policy agreed to between the NDPP and the Minister of Justice.
According the De Vos, "If the ETV report is correct, it would present Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell."
Source: Constitutionally Speaking
Wednesday, February 10, 2010
Questions on Rule of Law Raised by Iraqi Leader’s Use of Army
The Iraqi Army’s Fourth Division cordoned off the provincial council building here overnight on Tuesday and showed no sign on Wednesday of leaving. It was the latest in a series of actions by the government of Prime Minister Nuri Kamal al-Maliki that have infuriated his political opponents, while raising doubts about the strength of the country’s laws and democratic institutions. In a dispute over the provincial council’s legal powers to appoint a governor, Mr. Maliki ordered in the military here — for the second time — to exert his influence.
American military commanders and diplomats expressed alarm at his willingness to use force. “You have the law on your side,” Col. Henry A. Arnold III, commander of the First Infantry Division’s Fourth Brigade, told a council member outside the besieged building on Wednesday morning. “Maliki knows it. The Americans know it. And they’re going to keep reminding him of it.”
The intervention in Tikrit, a densely Sunni Arab area near Saddam Hussein’s home village, occurred during an increasingly tense election campaign that has heightened fears of politically tinged violence. It highlighted what Mr. Maliki’s critics have denounced as an abusive use of the law and the security forces to settle political disputes and jockey for advantage in the parliamentary elections, scheduled for March 7. The political turmoil convulsing Iraq stems not just from suspenseful elections in which Mr. Maliki, a Shiite who has allied with several Sunni politicians, appears to be losing popular support and potentially his chances for re-election. It also stems from an untested separation of powers, opaque back-room agreements and a loose fidelity to the country’s laws, whose interpretation often depends on who is reading them. “Iraq is like a sick person,” the speaker of Parliament, Ayad al-Samarrai, said at a recent news conference. “All its organs are ailing.”
In just the last week, Mr. Maliki’s government has acted with, at best, disputed legal authority. In Diyala Province, a leading candidate from one of the main blocs challenging Mr. Maliki’s political coalition, known as State of Law, was arrested Sunday night by special forces sent from Baghdad only days after he took part in a recorded debate in which he criticized the security forces. Warrants are said to have been issued for five other members of that province’s legislature on charges that remain unclear.
When an appeals court last week reversed in part the disqualification of hundreds of candidates who had been barred because of reported ties to Mr. Hussein’s Ba'ath Party, Mr. Maliki denounced the ruling as illegal. He later met with parliamentary leaders and the chairman of Iraq’s Supreme Judicial Council to hash out a compromise that opponents said illustrated the undue political pressure exerted by Mr. Maliki on a supposedly independent judiciary. “A prime minister who should be the first defender of the Constitution, the first defender of the supremacy of law and law and order in the country — and this incidentally is the name of his group — should be the first person to defend a decision of the court and the judiciary,” said Ayad Allawi, a former prime minister whose bloc has emerged as a potent rival to Mr. Maliki’s, in a recent interview.
The process for disqualifying candidates accused of Baathist backgrounds was so murky that foreign diplomats, United Nations officials and even Iraqi officials knew little about what was happening — and are still in the dark. The list of those disqualified and the evidence for supporting their disqualification still have not been made public. A committee of Parliament at one point called for a “withdrawal of confidence” in the appeals court, an act that lacked any legal foundation.
An American official, referring to the disqualification process, said, “The emotional weight of this issue is too heavy for the nascent democratic institutions to manage.” The confrontation in Tikrit began with the newly elected provincial council’s vote in October to dismiss the governor of Salahuddin Province, Mtasher Hussein Ulaiwi, claiming negligence. Mr. Ulaiwi was elected by the council last year after provincial elections that were intended to expand the powers of Iraq’s regions to govern themselves after decades of authoritarian control from Baghdad. “The Iraqi government is used to using the army to settle its problems,” one council member, Abdullah Ejbarah, a former general in Mr. Hussein’s Republican Guard, said Wednesday at the council’s building.
The dispute has clearly become part of the larger electoral battle in Iraq. Mr. Maliki has sided with the former governor’s party, the Iraqi Islamic Party, whose support he is likely to need after the national elections if he hopes to remain in office. The party includes prominent Sunni leaders in Baghdad, among them Mr. Samarrai, the speaker of Parliament. For weeks after his dismissal, Mr. Ulaiwi refused to leave office, appealing to Iraq’s federal court and suing the council’s chairman on charges that he had a criminal record and a falsified high school diploma.
Mr. Maliki intervened first with a letter refusing to recognize the governor’s dismissal. When the federal court upheld the council’s actions, though, he ordered the governor removed from office. Then he ordered the army’s Fourth Division to occupy the building on the night of Jan. 20 to block the council from seating a new governor, elected by a council vote of 20 to 2. That action shut down many of the province’s basic functions until Feb. 7, when the first occupation ended after behind-closed-doors negotiations in Baghdad that allowed the appointment of an acting governor. According to members of the council, however, Mr. Maliki’s aides are still insisting on influencing the choice of governor. “We are just adhering to the law,” the acting governor, Ahmed Abdul Jabbar Abdul Karim, said in his office on Tuesday, only hours before the provincial council building was cordoned off. “You want my opinion? There is no law today in Baghdad.”
Mr. Maliki’s government has said nothing publicly about the intervention of the army.
The Americans in Salahuddin — including commanders of the Third Infantry Division and Colonel Arnold’s brigade, as well as the State Department’s provincial reconstruction team, at a sprawling base outside Tikrit — have been caught in the middle of the dispute over where the federal government’s powers end and the provincial council’s begin. The Third Infantry’s commander, Maj. Gen. Tony Cucolo, reached back to the early debates over the Constitution in the United States, saying in a videoconference at the Pentagon that there was “real Marbury v. Madison stuff going on here.” By emphasizing the provincial council’s new powers and calling for respect for the rule of law, however, the Americans have in effect put themselves in direct opposition to Mr. Maliki’s government. Mr. Maliki, who once enjoyed unwavering support from the United States, has increasingly taken to accusing the Americans of interfering in Iraq’s internal affairs.
On Wednesday morning, Colonel Arnold called the new cordon by the Iraqi Army “a desperate act.” “They’re losing,” he told Mr. Ejbarah, the council member. “That’s why they’re doing this.”
Source: New York Times
American military commanders and diplomats expressed alarm at his willingness to use force. “You have the law on your side,” Col. Henry A. Arnold III, commander of the First Infantry Division’s Fourth Brigade, told a council member outside the besieged building on Wednesday morning. “Maliki knows it. The Americans know it. And they’re going to keep reminding him of it.”
The intervention in Tikrit, a densely Sunni Arab area near Saddam Hussein’s home village, occurred during an increasingly tense election campaign that has heightened fears of politically tinged violence. It highlighted what Mr. Maliki’s critics have denounced as an abusive use of the law and the security forces to settle political disputes and jockey for advantage in the parliamentary elections, scheduled for March 7. The political turmoil convulsing Iraq stems not just from suspenseful elections in which Mr. Maliki, a Shiite who has allied with several Sunni politicians, appears to be losing popular support and potentially his chances for re-election. It also stems from an untested separation of powers, opaque back-room agreements and a loose fidelity to the country’s laws, whose interpretation often depends on who is reading them. “Iraq is like a sick person,” the speaker of Parliament, Ayad al-Samarrai, said at a recent news conference. “All its organs are ailing.”
In just the last week, Mr. Maliki’s government has acted with, at best, disputed legal authority. In Diyala Province, a leading candidate from one of the main blocs challenging Mr. Maliki’s political coalition, known as State of Law, was arrested Sunday night by special forces sent from Baghdad only days after he took part in a recorded debate in which he criticized the security forces. Warrants are said to have been issued for five other members of that province’s legislature on charges that remain unclear.
When an appeals court last week reversed in part the disqualification of hundreds of candidates who had been barred because of reported ties to Mr. Hussein’s Ba'ath Party, Mr. Maliki denounced the ruling as illegal. He later met with parliamentary leaders and the chairman of Iraq’s Supreme Judicial Council to hash out a compromise that opponents said illustrated the undue political pressure exerted by Mr. Maliki on a supposedly independent judiciary. “A prime minister who should be the first defender of the Constitution, the first defender of the supremacy of law and law and order in the country — and this incidentally is the name of his group — should be the first person to defend a decision of the court and the judiciary,” said Ayad Allawi, a former prime minister whose bloc has emerged as a potent rival to Mr. Maliki’s, in a recent interview.
The process for disqualifying candidates accused of Baathist backgrounds was so murky that foreign diplomats, United Nations officials and even Iraqi officials knew little about what was happening — and are still in the dark. The list of those disqualified and the evidence for supporting their disqualification still have not been made public. A committee of Parliament at one point called for a “withdrawal of confidence” in the appeals court, an act that lacked any legal foundation.
An American official, referring to the disqualification process, said, “The emotional weight of this issue is too heavy for the nascent democratic institutions to manage.” The confrontation in Tikrit began with the newly elected provincial council’s vote in October to dismiss the governor of Salahuddin Province, Mtasher Hussein Ulaiwi, claiming negligence. Mr. Ulaiwi was elected by the council last year after provincial elections that were intended to expand the powers of Iraq’s regions to govern themselves after decades of authoritarian control from Baghdad. “The Iraqi government is used to using the army to settle its problems,” one council member, Abdullah Ejbarah, a former general in Mr. Hussein’s Republican Guard, said Wednesday at the council’s building.
The dispute has clearly become part of the larger electoral battle in Iraq. Mr. Maliki has sided with the former governor’s party, the Iraqi Islamic Party, whose support he is likely to need after the national elections if he hopes to remain in office. The party includes prominent Sunni leaders in Baghdad, among them Mr. Samarrai, the speaker of Parliament. For weeks after his dismissal, Mr. Ulaiwi refused to leave office, appealing to Iraq’s federal court and suing the council’s chairman on charges that he had a criminal record and a falsified high school diploma.
Mr. Maliki intervened first with a letter refusing to recognize the governor’s dismissal. When the federal court upheld the council’s actions, though, he ordered the governor removed from office. Then he ordered the army’s Fourth Division to occupy the building on the night of Jan. 20 to block the council from seating a new governor, elected by a council vote of 20 to 2. That action shut down many of the province’s basic functions until Feb. 7, when the first occupation ended after behind-closed-doors negotiations in Baghdad that allowed the appointment of an acting governor. According to members of the council, however, Mr. Maliki’s aides are still insisting on influencing the choice of governor. “We are just adhering to the law,” the acting governor, Ahmed Abdul Jabbar Abdul Karim, said in his office on Tuesday, only hours before the provincial council building was cordoned off. “You want my opinion? There is no law today in Baghdad.”
Mr. Maliki’s government has said nothing publicly about the intervention of the army.
The Americans in Salahuddin — including commanders of the Third Infantry Division and Colonel Arnold’s brigade, as well as the State Department’s provincial reconstruction team, at a sprawling base outside Tikrit — have been caught in the middle of the dispute over where the federal government’s powers end and the provincial council’s begin. The Third Infantry’s commander, Maj. Gen. Tony Cucolo, reached back to the early debates over the Constitution in the United States, saying in a videoconference at the Pentagon that there was “real Marbury v. Madison stuff going on here.” By emphasizing the provincial council’s new powers and calling for respect for the rule of law, however, the Americans have in effect put themselves in direct opposition to Mr. Maliki’s government. Mr. Maliki, who once enjoyed unwavering support from the United States, has increasingly taken to accusing the Americans of interfering in Iraq’s internal affairs.
On Wednesday morning, Colonel Arnold called the new cordon by the Iraqi Army “a desperate act.” “They’re losing,” he told Mr. Ejbarah, the council member. “That’s why they’re doing this.”
Source: New York Times
Monday, February 8, 2010
Mpshe’s appointment: scandalous attack on independence of the judiciary
On is blog Constitutionally Speaking, Pierre de Vos says the following:
"There are three reasons why this appointment [of Mokotedi Mpshe as acting judge in the North West Provincial Division] is scandalous and perhaps unlawful.
First, while section 175(2) of the Constitution states that “[t]he Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve”, this provision must be read in the light of the separation of powers doctrine and the constitutional guarantee of judicial independence. The present convention that gives effect to these principles is that the Judge President identifies candidates for appointment as acting judges and that the Minister then appoints them. The Minister is not supposed to canvass for a particular candidate.
This convention finds strong constitutional support in section 165(2) and (3) of the Constitution and the power of the Minister is in effect qualified by these provisions which states:
Judges need to be both impartial and independent. Even when they will be impartial it does not mean they will be independent. Because judges – even acting judges – might be called upon to hear cases in which the government of the day has an interest or is a party to, the separation of powers doctrine and the guarantees of an independent and impartial judiciary require the Minister not to take an active role in the appointment of acting judges.
If the Minister [Jeff Radebe] took an active role in such appointments and if that judge then later has to hear a case in which the government of the day has an interest, it would be akin to the Minister having chosen a judge to hear the government’s case and this would fundamentally erode the independence of the judiciary. This is because there would be a reasonable apprehension that the judge, who was only appointed because the Minister put pressure on the Judge President to appoint him, would not act without fear, favour or prejudice.
Second, in this case the problem is compounded by the fact that Mpshe was the acting head of the NDPP who controversially did the President and the governing party a HUGE favour by dropping all charges against its candidate for President shortly before the election. What is worse, he justified his decision by plagiarising an overturned Hong Kong Court decision and without referring at all to the prosecution policy to which he is constitutionally bound and which should have guided him in the decision. One would have to be very gullible not to have serious doubts (in law we would call it “a reasonable apprehension”) about the independence and impartiality of Mpshe and of his ability to resist political pressure.
Lastly, Mpshe I am told is still employed at the NPA. If this is correct, the appointment would surely not only be scandalous but also unconstitutional. Although members of the NPA fall administratively under the Ministry of Justice, they have a constitutional duty to act independently. Nevertheless, NPA members (like Mpshe) are state employees and are subject to the authority of the NDPP. A member of the NPA cannot serve two masters by being both subject to the authority of Simelane and subject only to the Constitution and the law which he must apply without fear, favour or prejudice. Although Mpshe might act impartially he would not be able to be independent because he is still a civil servant!
In the case of Law Society of Lesotho v The Prime Minister and Another the Lesotho Appeal Court nullified the appointment of an Adv Peete, a member of the Attorney General’s Office, as an acting judge, affirming the principle that justice should not only be done but should be seen to be done. “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”, the court said and continued:
The independence of judges does not only rely on the question of whether an appointee will indeed be impartial in his judgments and capable of acting independently, argued the court. The public’s right to feel confidence in the independence of judges is in itself part of the concept of independence. Where a current member of the NPA is appointed as acting judge the public would have no such confidence. Where that man is also the man who took a highly controversial decision to let the most powerful citizen off the hook and save his political bacon, the situation could not be clearer."
Source: Constitutionally Speaking
"There are three reasons why this appointment [of Mokotedi Mpshe as acting judge in the North West Provincial Division] is scandalous and perhaps unlawful.
First, while section 175(2) of the Constitution states that “[t]he Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve”, this provision must be read in the light of the separation of powers doctrine and the constitutional guarantee of judicial independence. The present convention that gives effect to these principles is that the Judge President identifies candidates for appointment as acting judges and that the Minister then appoints them. The Minister is not supposed to canvass for a particular candidate.
This convention finds strong constitutional support in section 165(2) and (3) of the Constitution and the power of the Minister is in effect qualified by these provisions which states:
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
Judges need to be both impartial and independent. Even when they will be impartial it does not mean they will be independent. Because judges – even acting judges – might be called upon to hear cases in which the government of the day has an interest or is a party to, the separation of powers doctrine and the guarantees of an independent and impartial judiciary require the Minister not to take an active role in the appointment of acting judges.
If the Minister [Jeff Radebe] took an active role in such appointments and if that judge then later has to hear a case in which the government of the day has an interest, it would be akin to the Minister having chosen a judge to hear the government’s case and this would fundamentally erode the independence of the judiciary. This is because there would be a reasonable apprehension that the judge, who was only appointed because the Minister put pressure on the Judge President to appoint him, would not act without fear, favour or prejudice.
Second, in this case the problem is compounded by the fact that Mpshe was the acting head of the NDPP who controversially did the President and the governing party a HUGE favour by dropping all charges against its candidate for President shortly before the election. What is worse, he justified his decision by plagiarising an overturned Hong Kong Court decision and without referring at all to the prosecution policy to which he is constitutionally bound and which should have guided him in the decision. One would have to be very gullible not to have serious doubts (in law we would call it “a reasonable apprehension”) about the independence and impartiality of Mpshe and of his ability to resist political pressure.
Lastly, Mpshe I am told is still employed at the NPA. If this is correct, the appointment would surely not only be scandalous but also unconstitutional. Although members of the NPA fall administratively under the Ministry of Justice, they have a constitutional duty to act independently. Nevertheless, NPA members (like Mpshe) are state employees and are subject to the authority of the NDPP. A member of the NPA cannot serve two masters by being both subject to the authority of Simelane and subject only to the Constitution and the law which he must apply without fear, favour or prejudice. Although Mpshe might act impartially he would not be able to be independent because he is still a civil servant!
In the case of Law Society of Lesotho v The Prime Minister and Another the Lesotho Appeal Court nullified the appointment of an Adv Peete, a member of the Attorney General’s Office, as an acting judge, affirming the principle that justice should not only be done but should be seen to be done. “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”, the court said and continued:
Peete AJ’s official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors!
The independence of judges does not only rely on the question of whether an appointee will indeed be impartial in his judgments and capable of acting independently, argued the court. The public’s right to feel confidence in the independence of judges is in itself part of the concept of independence. Where a current member of the NPA is appointed as acting judge the public would have no such confidence. Where that man is also the man who took a highly controversial decision to let the most powerful citizen off the hook and save his political bacon, the situation could not be clearer."
Source: Constitutionally Speaking
Tuesday, January 12, 2010
Government Should Respect Privacy Rights of All Malawians
On December 26, 2009, Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, conducted a traditional engagement ceremony (chinkhoswe, in Chichewa) in the city of Blantyre. After newspapers reported on the chinkhoswe, police in Blantyre arrested Monjeza and Chimbalanga at their home on December 28, charging them with "unnatural offenses" and "indecent practices between males" under sections 153 and 156 of Malawi's criminal code.
Malawi's law criminalizing consensual homosexual conduct is a legacy of the country's colonial past. As Human Rights Watch has documented, British colonial rulers imposed laws regulating sexual and social conduct in dozens of countries in Africa, Asia and the Pacific. These laws are now often defended by Asian and African governments in the name of native culture and tradition. "These laws criminalizing consensual homosexual conduct are legacies of foreign rule, but they still have teeth," Nath said. "Malawi should rid itself of this disgraceful colonial relic."
Chapter IV of the Malawian constitution guarantees every person's right to liberty, dignity, and security of person. Article 20 prohibits discrimination on all grounds, and article 21 guarantees the right to privacy. Section 153 of the Malawian criminal code, which criminalizes consensual sexual conduct between adults, and section 156, which criminalizes "indecency" in both public and private, directly violates the right to privacy.
These criminal law sections are also contrary to international human rights standards. Specifically, article 2 of the African Charter on Human and People's Rights prohibits discrimination on all grounds; articles 3 and 19 secure for all the right to equality; and articles 5 and 6 guarantee the right to dignity and liberty.
The United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) and evaluates the compliance of states with its provisions, found in the 1994 case of Toonen v. Australia that laws criminalizing consensual homosexual conduct among adults violate the covenant's protections of private life and against discrimination.
Forensic medical examinations to "prove" homosexual conduct are archaic and discredited, and when conducted without consent in conditions of detention, may constitute torture. Article 19(5) of Malawi's constitution reads: "No person shall be subjected to medical or scientific experimentation without his or her consent." Article 7 of the ICCPR protects against torture and cruel or degrading treatment; it specifically guarantees that "no one shall be subjected without his free consent to medical or scientific experimentation."
Source: Human Rights Watch
The Text of the nternational Covenant on Civil and Political Rights (ICCPR) can be found here.
Malawi's law criminalizing consensual homosexual conduct is a legacy of the country's colonial past. As Human Rights Watch has documented, British colonial rulers imposed laws regulating sexual and social conduct in dozens of countries in Africa, Asia and the Pacific. These laws are now often defended by Asian and African governments in the name of native culture and tradition. "These laws criminalizing consensual homosexual conduct are legacies of foreign rule, but they still have teeth," Nath said. "Malawi should rid itself of this disgraceful colonial relic."
Chapter IV of the Malawian constitution guarantees every person's right to liberty, dignity, and security of person. Article 20 prohibits discrimination on all grounds, and article 21 guarantees the right to privacy. Section 153 of the Malawian criminal code, which criminalizes consensual sexual conduct between adults, and section 156, which criminalizes "indecency" in both public and private, directly violates the right to privacy.
These criminal law sections are also contrary to international human rights standards. Specifically, article 2 of the African Charter on Human and People's Rights prohibits discrimination on all grounds; articles 3 and 19 secure for all the right to equality; and articles 5 and 6 guarantee the right to dignity and liberty.
The United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) and evaluates the compliance of states with its provisions, found in the 1994 case of Toonen v. Australia that laws criminalizing consensual homosexual conduct among adults violate the covenant's protections of private life and against discrimination.
Forensic medical examinations to "prove" homosexual conduct are archaic and discredited, and when conducted without consent in conditions of detention, may constitute torture. Article 19(5) of Malawi's constitution reads: "No person shall be subjected to medical or scientific experimentation without his or her consent." Article 7 of the ICCPR protects against torture and cruel or degrading treatment; it specifically guarantees that "no one shall be subjected without his free consent to medical or scientific experimentation."
Source: Human Rights Watch
The Text of the nternational Covenant on Civil and Political Rights (ICCPR) can be found here.
Monday, December 7, 2009
Simelane appointment is 'aberration'
Archbishop Emeritus Desmond Tutu on Monday called on President Jacob Zuma to reverse the appointment of national prosecutions boss Menzi Simelane, describing it as an "aberration". "The appointment of advocate Menzi Simelane as National Director of Public Prosecutions is a setback for the integrity of South Africa's post-apartheid legal system," Tutu said in a statement. "Simelane's integrity has been questioned from within his own political party and by his profession."Tutu said a statutory commission, headed by senior African National Congress stalwart Frene Ginwala, deemed him unfit for the job. Tutu was referring to the Ginwala commission of inquiry into whether Simelane's predecessor, Vusi Pikoli, was fit to hold office.In her findings, Ginwala said it seemed that Simelane had tried to interfere in the National Prosecuting Authority (NPA) decision to arrest ex-top cop Jackie Selebi for corruption. She came to this conclusion after Simelane testified at the hearings. But Justice Minister Jeff Radebe last week said Simelane was never given the opportunity to respond to Ginwala's accusations.
However, Tutu said the government's ignoring of Ginwala's finding "besmirches the office of the NDPP [National Director of Public Prosecutions]." "The appointment of one whose ready willingness to act on political instructions has been questioned by a statutory commission does nothing for people's confidence in the law," said Tutu.
The Pretoria Bar Council is currently investigating a complaint against Simelane, related to his appointed as NDPP despite the Ginwala commission findings. Tutu said: "To witness the professional body of South African advocates - Simelane's peers - considering disbarring him is a national embarrassment. This distresses me deeply." He said he had raised his objections with Radebe and Deputy President Kgalema Motlanthe while Zuma was out of the country. "I now appeal to President Zuma to do the right thing. Since his appointment, he has done much to restore the confidence of South Africans in government. But the appointment of advocate Simelane is an aberration. "The appointment should be reversed," said Tutu.
Source: IoL
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