On Sunday afternoon the Helen Suzman Foundation (HSF) offices in Parktown, Johannesburg were the target of a military-style raid. Those conducting the raid clearly knew what they were looking for: computers and other documentation relating to the programmatic work of the HSF were taken. The brazen, coordinated nature of the operation and its targeted, selective focus are sinister. So, too, is its timing.
In its bid to promote constitutional democracy, the HSF undertakes vital but often politically sensitive and contentious activity. Among its most recent activities was the launch last Wednesday of an application in the Pretoria High Court to block the head of the Hawks from exercising any of his powers pending the outcome of its application to have his appointment set aside as irrational and unlawful.
We, the undersigned, are alarmed at the raid on the HSF. Thuggery such as this is probably intended to intimidate the HSF and others in civil society engaged in promoting constitutional democracy, advancing human rights, fighting endemic corruption and protecting the Rule of Law.
While the culprits of the raid have yet to be identified, we note that it takes place in a context of increasing hostility by some within the state towards civil society. Should it be established that the perpetrators of the raid are in any way linked to police, army or intelligence functionaries, it will represent an attack on our democracy of the gravest kind. Even absent such linkages, government is not without responsibility. The enmity currently characterising its relationship with outspoken NGOs helps encourage the view that NGOs are fair targets.
To discharge its responsibility, government will need to act swiftly and decisively. We call on it to ensure that the raid is properly investigated and the perpetrators prosecuted.
Centre for Applied Legal Studies (CALS)
Centre for Human Rights (CHR)
Centre for Environmental Rights
Corruption Watch
Freedom Under Law (FUL)
Lawyers for Human Rights (LHR)
Legal Resources Centre (LRC)
Socio-Economic Rights Institute of South Africa (SERI)
South African History Archive (SAHA)
Southern Africa Litigation Centre (SALC)
Treatment Action Campaign (TAC)
Women’s Legal Centre (WLC)
Showing posts with label Rule of Law. Show all posts
Showing posts with label Rule of Law. Show all posts
Tuesday, March 22, 2016
Wednesday, July 16, 2014
The NPA's reputation is in tatters: Our state institutions need to be rescued
Speech by the DA's Shadow Minister of Justice, Glynnis Breytenbach MP during the budget vote debate on Justice, Parliament, July 15 2014:Our state institutions need to be rescued
South Africa has, if not the strongest, then one of the strongest constitutional legislative frameworks in the world. It is designed to ensure that all our citizens live in safety and security, and that everyone is equal before the law. It is these principles that should guide the criminal justice cluster in the performance of their duties, guided always by the prescripts of the Constitution and the principle of the Rule of Law.
However, this has not been done successfully or at all, and the web of terror that crime throws over South Africa is so strong and far-reaching that every South African has been constrained by it in some way. The lives of many committed and talented South Africans have been lost. Many are deeply traumatised. We have become suspicious of our fellow citizens and distrusting of the institutions that are supposed to keep us safe.
This has a negative effect on the fight against crime in general, and the fight against corruption in particular. This in turn has a disastrous effect on the economy and investment. International investors are hesitant to invest where they believe that they may have no recourse, where they have little faith in the ability of the legal framework to offer adequate protection. A knock-on effect is the high unemployment rate, and the inability to create jobs and employ particularly young people and young graduates.
The 2007 Cabinet adopted a so-called seven-point plan to review and revamp the Criminal Justice System. This, very briefly, was designed to address the most serious shortcomings of the Criminal Justice System, and was to create an effective and efficient so-called Integrated Criminal Justice System. We now find ourselves in mid-2014, and no closer to achieving even the most modest of the goals set out in that plan. Seven years of planning, budgeting and promises of implementation have left us nowhere. Billions have been spent by the Department of Justice and the Criminal Justice Cluster in pursuit of these goals, with very little or nothing to show for it.
This year, again, in his overview of the proposed budget, Minister Masutha refers to these goals, how they will be pursued and achieved and how much will be spent in the pursuit thereof. And this year, again, there can be no realistic expectation of any success in this regard.
The National Prosecuting Authority (NPA) is an important player in the Criminal Justice Cluster, and the institution upon which the achievement of these goals largely rests, is in disarray. It has been without a permanent head for long periods, and the ensuing chaos is as a direct result of this. Acting heads, who by their very nature are directionless, and unsuitable appointments have wreaked havoc on a once strong and dependable institution. This is, of course, the direct result of unabashed and undisguised political meddling in the affairs of the National Prosecuting Authority, and the Criminal Justice Cluster as a whole.
The National Prosecuting Authority is an institution that should have no dirty linen to wash, let alone to be washed in public. Yet week after week we see it lurch from one damaging scandal to the next. Its reputation is in tatters. It is constantly in the news, and never for the right reasons. The public at large has no faith in the organization to fulfill even its most basic mandate, and a budget of billions annually sees no real improvement in its daily functions. Millions are wasted on litigation for poor or no reasons.
The hapless Koki Mpshe was appointed after the inexcusable firing of Vusi Pikoli, solely to facilitate the withdrawal of the corruption and other charges against the President. The appointment of the wholly unsuitable Menzi Simelane was defended to the doors of the Constitutional Court, the equally unsuitable Nomcgobo Jiba was rushed up the corporate ladder in order to be able to replace him, and to oversee the continued stonewalling surrounding the spy tapes saga and the protection of Richard Mdluli, astonishingly even in the face of various court judgements. Under pressure from various sources, the President, having had plenty of time to apply his mind, appointed Mxolisi Nxasana, only to institute an enquiry into his fitness to hold office ten months later, and only after he called for the spy tapes and related documents and re-instituted the charges against Richard Mdluli. It takes no great amount of intelligence to glean the golden thread in this sad tale.
The only sensible thing to do now is for the President to widen the still to be announced terms of reference of the Commission to include an enquiry into the behaviour of other senior managers, notably Adv Jiba and Adv Mrwebi. Both were severely criticized in judgements in the High Court and the Supreme Court of Appeal. The top structure of the National Prosecuting Authority needs to be cleaned out so that those who remain can get on with the core business of the organization.
The Special Investigating Unit (SIU) has not fared much better than the National Prosecuting Authority. Beset by leadership issues the Special Investigating Unit has largely failed to fulfill its proclaimed goals, despite a year on year increase in its budget. Many investigations have dragged on for years, and appear to be nowhere near completion. The Bosasa matter has been live for more than 5 years now, still with no end in sight, and the Head, Adv Soni, admitted last week before the Portfolio Committee that he could give no indication as to when the Nkandla investigation and report would be finalized and placed before the President.
Despite the importance of and public interest in the matter, the Special Investigating Unit only managed to gain access to the premises at Nkandla on 3 July 2014. Adv Soni declined to say who was responsible for the delay, despite the parties involved being legally obliged to co-operate with him. Given the profile of this matter, and the obvious importance and pressure to finalize it, no real progress could be demonstrated, and certainly no will to drive the matter was discernible.
The current presentation before the Portfolio Committee reveals an enormous decrease in cases expected to be finalized, but despite this the Special Investigating Unit felt comfortable to approach Parliament and request an increased budget in order to meet its significantly decreased goals. There can be very little confidence that even these modest goals will be met. Again we see an important component in the Criminal Justice Cluster being reduced to a somewhat embarrassing ineffectiveness due to overt political meddling.
The office of the public protector is a chapter 9 institution and an independent body reporting to Parliament, whose mandate is being followed and fulfilled, but is clearly under fire due to the independence being exhibited. The Public Protector herself is vilified, accused of overreaching her mandate, accused of playing politics and the target of severe personal criticism from certain limited sources, simply because she refuses to bow to political pressure and refuses to allow political interference in the institution, which derives its independence from the Constitution.
Again, the thread of political interference in these institutions is glaring, and the attack on the independence of the Criminal Justice Cluster is palpable.
No amount of budget increases will fix this. No amount of money is going to make these institutions effective in the face of such interference. The interference must stop. And it is our duty, the duty of this fifth Parliament, to all those citizens who voted for us to sit here, to make it stop, and to work towards making the Criminal Justice Cluster effective and efficient, in order to fulfill the role it is enjoined to fill by the Constitution. If we allow the Rule of Law to be eroded any further, we will find it impossible to regain the lost ground.
The great Russian author, Aleksandr Solzhenitsyn wrote: " in keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations."
We are tired. We want justice now. Sikathele manje. Sifuna ukulunga.
Issued by the DA, July 15 2014
Source: Politicsweb
South Africa has, if not the strongest, then one of the strongest constitutional legislative frameworks in the world. It is designed to ensure that all our citizens live in safety and security, and that everyone is equal before the law. It is these principles that should guide the criminal justice cluster in the performance of their duties, guided always by the prescripts of the Constitution and the principle of the Rule of Law.
However, this has not been done successfully or at all, and the web of terror that crime throws over South Africa is so strong and far-reaching that every South African has been constrained by it in some way. The lives of many committed and talented South Africans have been lost. Many are deeply traumatised. We have become suspicious of our fellow citizens and distrusting of the institutions that are supposed to keep us safe.
This has a negative effect on the fight against crime in general, and the fight against corruption in particular. This in turn has a disastrous effect on the economy and investment. International investors are hesitant to invest where they believe that they may have no recourse, where they have little faith in the ability of the legal framework to offer adequate protection. A knock-on effect is the high unemployment rate, and the inability to create jobs and employ particularly young people and young graduates.
The 2007 Cabinet adopted a so-called seven-point plan to review and revamp the Criminal Justice System. This, very briefly, was designed to address the most serious shortcomings of the Criminal Justice System, and was to create an effective and efficient so-called Integrated Criminal Justice System. We now find ourselves in mid-2014, and no closer to achieving even the most modest of the goals set out in that plan. Seven years of planning, budgeting and promises of implementation have left us nowhere. Billions have been spent by the Department of Justice and the Criminal Justice Cluster in pursuit of these goals, with very little or nothing to show for it.
This year, again, in his overview of the proposed budget, Minister Masutha refers to these goals, how they will be pursued and achieved and how much will be spent in the pursuit thereof. And this year, again, there can be no realistic expectation of any success in this regard.
The National Prosecuting Authority (NPA) is an important player in the Criminal Justice Cluster, and the institution upon which the achievement of these goals largely rests, is in disarray. It has been without a permanent head for long periods, and the ensuing chaos is as a direct result of this. Acting heads, who by their very nature are directionless, and unsuitable appointments have wreaked havoc on a once strong and dependable institution. This is, of course, the direct result of unabashed and undisguised political meddling in the affairs of the National Prosecuting Authority, and the Criminal Justice Cluster as a whole.
The National Prosecuting Authority is an institution that should have no dirty linen to wash, let alone to be washed in public. Yet week after week we see it lurch from one damaging scandal to the next. Its reputation is in tatters. It is constantly in the news, and never for the right reasons. The public at large has no faith in the organization to fulfill even its most basic mandate, and a budget of billions annually sees no real improvement in its daily functions. Millions are wasted on litigation for poor or no reasons.
The hapless Koki Mpshe was appointed after the inexcusable firing of Vusi Pikoli, solely to facilitate the withdrawal of the corruption and other charges against the President. The appointment of the wholly unsuitable Menzi Simelane was defended to the doors of the Constitutional Court, the equally unsuitable Nomcgobo Jiba was rushed up the corporate ladder in order to be able to replace him, and to oversee the continued stonewalling surrounding the spy tapes saga and the protection of Richard Mdluli, astonishingly even in the face of various court judgements. Under pressure from various sources, the President, having had plenty of time to apply his mind, appointed Mxolisi Nxasana, only to institute an enquiry into his fitness to hold office ten months later, and only after he called for the spy tapes and related documents and re-instituted the charges against Richard Mdluli. It takes no great amount of intelligence to glean the golden thread in this sad tale.
The only sensible thing to do now is for the President to widen the still to be announced terms of reference of the Commission to include an enquiry into the behaviour of other senior managers, notably Adv Jiba and Adv Mrwebi. Both were severely criticized in judgements in the High Court and the Supreme Court of Appeal. The top structure of the National Prosecuting Authority needs to be cleaned out so that those who remain can get on with the core business of the organization.
The Special Investigating Unit (SIU) has not fared much better than the National Prosecuting Authority. Beset by leadership issues the Special Investigating Unit has largely failed to fulfill its proclaimed goals, despite a year on year increase in its budget. Many investigations have dragged on for years, and appear to be nowhere near completion. The Bosasa matter has been live for more than 5 years now, still with no end in sight, and the Head, Adv Soni, admitted last week before the Portfolio Committee that he could give no indication as to when the Nkandla investigation and report would be finalized and placed before the President.
Despite the importance of and public interest in the matter, the Special Investigating Unit only managed to gain access to the premises at Nkandla on 3 July 2014. Adv Soni declined to say who was responsible for the delay, despite the parties involved being legally obliged to co-operate with him. Given the profile of this matter, and the obvious importance and pressure to finalize it, no real progress could be demonstrated, and certainly no will to drive the matter was discernible.
The current presentation before the Portfolio Committee reveals an enormous decrease in cases expected to be finalized, but despite this the Special Investigating Unit felt comfortable to approach Parliament and request an increased budget in order to meet its significantly decreased goals. There can be very little confidence that even these modest goals will be met. Again we see an important component in the Criminal Justice Cluster being reduced to a somewhat embarrassing ineffectiveness due to overt political meddling.
The office of the public protector is a chapter 9 institution and an independent body reporting to Parliament, whose mandate is being followed and fulfilled, but is clearly under fire due to the independence being exhibited. The Public Protector herself is vilified, accused of overreaching her mandate, accused of playing politics and the target of severe personal criticism from certain limited sources, simply because she refuses to bow to political pressure and refuses to allow political interference in the institution, which derives its independence from the Constitution.
Again, the thread of political interference in these institutions is glaring, and the attack on the independence of the Criminal Justice Cluster is palpable.
No amount of budget increases will fix this. No amount of money is going to make these institutions effective in the face of such interference. The interference must stop. And it is our duty, the duty of this fifth Parliament, to all those citizens who voted for us to sit here, to make it stop, and to work towards making the Criminal Justice Cluster effective and efficient, in order to fulfill the role it is enjoined to fill by the Constitution. If we allow the Rule of Law to be eroded any further, we will find it impossible to regain the lost ground.
The great Russian author, Aleksandr Solzhenitsyn wrote: " in keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations."
We are tired. We want justice now. Sikathele manje. Sifuna ukulunga.
Issued by the DA, July 15 2014
Source: Politicsweb
Tuesday, May 6, 2014
Abahlali baseMjondolo Press Statement: The ANC Must be removed from Office
For nine years our movement has boycotted elections. We have been clear that no political party represents the interests of the poor and that it was necessary for us to build our own power in order to present our own needs and demands to society. In these nine years we have won many victories but most of us remain in shacks. Twenty years of shack life is a disgrace in a democracy.
Corruption is also a disgrace. In Durban you get nothing without a membership card for the ANC. All development goes through the councillors and their ward committees and ANC branch executive committees. Development is there to make ANC leaders rich and to control the rest of us by only making it available to ANC members. Development is not for the people. This kind of corruption is a disgrace in a democracy.
But an even bigger disgrace is the repression that we have faced from the ANC, its members, its leaders and its assassins. They have banned our marches; attacked our marches; arrested us on trumped up charges; assaulted us in detention; used armed men to drive us from our homes with police support; used death threats, attacks in our homes and torture in police stations to intimidate people to manufacture evidence against us; detained us for months and months while we wait for a trial that gets thrown out of court because there is no evidence against us; used their anti-land invasion unit to evict us for political reasons and beaten and shot us in our communities. Senior members of the ANC and the Municipality have made public death threats against us. Two activists were assassinated in Cato Crest last year and another, an unarmed teenage girl, was executed by the police.
We cannot go on with this level of repression. As everyone knows we are not the only people who face this kind of repression. We all know about Andries Tatane and all the others murdered by the police on protests. We all know about the Marikana Massacre.
In Durban court orders are just ignored by the Municipality and so the courts cannot protect us. Mostly the media and civil society tend to agree that because we are poor and black we are automatically violent and criminal and too stupid to think our own politics and so we do not get that much protection from the media and civil society either. We have some valued comrades on the left among the middle classes but mostly this left just wants to bus us into its meetings so that it can look credible without having any interest at all in our struggles, our ideas or our safety. NUMSA asked us to support their march in Durban but they have not shown any concern to support us when we face repression. The EFF also asked us to support their march in Durban but, like NUMSA, they have not supported us when we face repression. So far our experience of both these organisations is that they are operating like the left NGOs – we are treated as if our only role is to provide the large numbers of people that they need to be bussed in to justify their politics.
Because we cannot carry on like this we took a decision to vote against the ANC. We did not want to split our vote. We decided to collectivise our vote in order to make it stronger. Our main priority was that the ANC must be removed from office. We knew that this will not happen in this election but we were still clear that if we can weaken the ANC then we must do that. Also we knew that if we collectivise our vote all the political parties will know that there is a large bloc of votes that will be available at the next election for the party that does the best job in opposing repression and takes the best position on shack settlements.
We decided that all political parties except the ANC would be invited to make a presentation to the movement. Some of our members did not want to invite the DA to make a presentation as they are known to represent the rich and, in Cape Town, they are no different to the ANC when it comes to illegal and violent evictions. However we debated this at length and decided to invite them to make a presentation on the grounds that the removal of the ANC was our first priority and the weakening of the ANC was our second priority.
The DA, EFF, NFP and WASP all accepted the invitation to make a presentation to our members at the Diakonia Centre on 25 April and they all came and made their presentations.
The delegates to that meeting then returned to their branches to discuss the presentations there. We met again on 2 May and held a general meeting. At this meeting the general leadership did not vote as their role was to facilitate the meeting. The rest of the delegates voted and the results were as follows:
2 - undecided
2 - WASP
16 - EFF
26 - NFP
146 – DA
The DA and the EFF returned to witness the voting. WASP did not return. The NFP arrived three hours late with lots of car, bodyguards and their senior people. But by that time we were already dispersing.
The whole meeting was recorded on video and this video can be made available. Even those who were very disappointed with the results agree that it was a highly democratic process. The collective discipline of a democratic organisation requires that we all accept this outcome. Of course this decision is only for this election and it does not bind our members in Cape Town. When the next election comes we will again decide whether or not to vote and, if so, which party to vote for.
The main reason why the majority of the delegates supported the DA was because they wanted to have the strongest possible opposition to the ANC to put the maximum pressure on the ANC and to prevent it from doing what it pleases – which includes murdering us. We negotiated a legal agreement with DA which commits them to support some of our more basic demands. We hope that they will stand up for these issues and that they, and all other parties, will realise that if they want the support of the shack dwellers they will have to support us rather than see us as a problem to be eradicated or forcibly removed from the cities and taken to the human dumping grounds.
We will vote, as one bloc, for the DA tomorrow. We will not take membership of the party, we do not endorse its policies and we will continue to insist that no one can hold a position as an elected leader in our movement if they join a political party. We do not love or trust the DA. Already they are telling lies about our choice and we are not surprised. We have made a purely tactical choice. We will certainly continue to organise against all and any attacks on the poor in Cape Town by the DA government there.
One of the lies that is being told is that the DA are saying that we have endorsed them for this election in the Western Cape. This is not true. Our Western Cape branch has endorsed our decision to make a tactical vote for the DA in KwaZulu-Natal. Our Western Cape branch has not decided to make any collective vote for any party in this election.
Over the last nine years we have protected our autonomy from NGOs very carefully even though we do work with some NGOs. Now that we feel that it is necessary for our safety and our ability to continue to organise to use our numbers to make deals with political parties we will protect our autonomy from political parties in the same way.
Our politics puts people first. We cannot do nothing but wait for socialism to come one day in the far distant future. Our children are dying from diarrhoea right now, our old people and disabled people are dying in shack fires right now, we are being evicted and disconnected right now and we are being beaten and shot during evictions and disconnections right now. We been repressed, and even murdered, right now. We have to act to do what we can to make our members’ lives better right now. We have to act to protect our ability to organise and to sustain our living politics right now. This does not mean that we have given up on our vision of a world where land, cities, wealth and power are shared fairly. We call this a living communism and we remain committed to it. But we also remain committed to the human beings that we are now and to our families, neighbours and comrades. We will make what deals we have to make to protect our politics and improve our members’ lives right now but we will not give up on our political vision. We represent thousands of people who live in shack settlements. Those people who sit in university offices and NGO offices only represent themselves. Their children are safe. Their lives are not at risk. They are free to put ideology before people because they are not accountable to oppressed people and because they are not themselves oppressed people. But the fact that we do not enjoy that freedom does not mean that we have given up our politics. It means that we are searching for a practical way forward in a difficult and dangerous struggle.
The new Abahlali electoral position has offered us a lot to learn about. There is a lot to learn about party politics and its dirty campaigning tactics. There is a lot to learn about the deeper politics of our time. And, yes, there is a lot to learn about who cares and doesn't care about the struggles of the poor and the working class.
Ideology and principle are vital but if they both fail to house the homeless and rescue the repressed and recognise the humanity of the inhumanized then the oppressed are not doing any harm to anyone in trying to emancipate ourselves by taking practical action now to keep people safe and to make their lives better while always keeping a bigger vision of freedom and justice in mind.
We share a sadness that we have had to make this decision. Very few people outside the movement have been witness to what we’ve been going through in the hands of the ANC. We do not have words to explain the pain many of us have gone through. We do not have words to explain our pain of twenty years of shack life and all the state repression that has come to us when we stood up for our humanity. Last year we came to the ceiling of hopelessness. It was clear that we are people that can be freely killed. The stress that this created led to some intense internal conflicts. We knew that we could not carry on with our old politics. Our new position has enabled us to rethink our struggle. It may not be the perfect way but it brought a robust discussion about us that was seriously trying to find ways of creating a new hope from no hope.
We are not surprised at the way some people on the so called left have reacted on our position. We are not surprised at the usual lies from the usual people on the internet. Many people and organisations on the left do not accept that we have the right to think our own struggle and to make our own decisions. They think that because they are on the left they have the right to tell us what to do. We do not accept this. These people see our decision as stupid and as a sell-out while they are nowhere to be seen in our times of great difficulty. It makes us to think that such people enjoy our suffering or even benefit from it. Why will people who claim to be in our support judge us instead of contacting us to first understand our decision? It may be a wrong decision but the reality is that we cannot deceive ourselves purposefully on our pain. Why should we be made to struggle in a way that is only designed to try and impress other people simple because they say that they are on the left? We will never do this. Our members must live in shacks and they must try and survive repression. Their organisation is theirs and it will be directed by their decisions. We have never compromised on this and for this we have always been attacked by the regressive left that only want us to take their money so that in exchange we can arrange for people to be bussed into their meetings. This is not emancipation. It is another kind of oppression.
Is the left doing enough to care about our struggle? Or do they see our struggles as projects from which they can prove and debate their findings and analysis rather than as a struggle to genuinely confront the forces of darkness? Our decision aims at trying to keep the space open for us to liberate ourselves by making a tactical move. We do not love the DA or agree with its policies. Why do people who failed to condemn the ANC attacks on us get so angry with us when we try to punish the ANC by making a tactical vote for its enemy? Maybe for these people it is better for us to be oppressed by the ANC than the DA. For us it is better not to be oppressed. Some of the left is just like some of the development NGOs and some of the state. They want to experiment on us, to use us for their own projects. We say no. On this there is no compromise. We continue to say ‘talk to us, not for us’ and ‘think with us not for us’.
Our position remains honouring those who have supported and who continue to support us. Since we all don't know the answers in this struggle to humanise the world we will keep hunting and trying. Sometimes we will make wrong decisions but at least we offer debate and learning for ourselves and all our friends and comrades.
The ANC are a serious threat to society and to right of the poor to organise freely in this society. They must be removed from office and until we can remove them we must do all that we can to weaken them.
For further information and comment please contact:
Mnikelo Ndabankulu on 081 263 3462
Zodwa Nsibande on 082 902 2960
Thembani Ngongoma on 084 613 9772
Nono Majola on 074 803 1986
Source: Abahlali baseMjondolo
Corruption is also a disgrace. In Durban you get nothing without a membership card for the ANC. All development goes through the councillors and their ward committees and ANC branch executive committees. Development is there to make ANC leaders rich and to control the rest of us by only making it available to ANC members. Development is not for the people. This kind of corruption is a disgrace in a democracy.
But an even bigger disgrace is the repression that we have faced from the ANC, its members, its leaders and its assassins. They have banned our marches; attacked our marches; arrested us on trumped up charges; assaulted us in detention; used armed men to drive us from our homes with police support; used death threats, attacks in our homes and torture in police stations to intimidate people to manufacture evidence against us; detained us for months and months while we wait for a trial that gets thrown out of court because there is no evidence against us; used their anti-land invasion unit to evict us for political reasons and beaten and shot us in our communities. Senior members of the ANC and the Municipality have made public death threats against us. Two activists were assassinated in Cato Crest last year and another, an unarmed teenage girl, was executed by the police.
We cannot go on with this level of repression. As everyone knows we are not the only people who face this kind of repression. We all know about Andries Tatane and all the others murdered by the police on protests. We all know about the Marikana Massacre.
In Durban court orders are just ignored by the Municipality and so the courts cannot protect us. Mostly the media and civil society tend to agree that because we are poor and black we are automatically violent and criminal and too stupid to think our own politics and so we do not get that much protection from the media and civil society either. We have some valued comrades on the left among the middle classes but mostly this left just wants to bus us into its meetings so that it can look credible without having any interest at all in our struggles, our ideas or our safety. NUMSA asked us to support their march in Durban but they have not shown any concern to support us when we face repression. The EFF also asked us to support their march in Durban but, like NUMSA, they have not supported us when we face repression. So far our experience of both these organisations is that they are operating like the left NGOs – we are treated as if our only role is to provide the large numbers of people that they need to be bussed in to justify their politics.
Because we cannot carry on like this we took a decision to vote against the ANC. We did not want to split our vote. We decided to collectivise our vote in order to make it stronger. Our main priority was that the ANC must be removed from office. We knew that this will not happen in this election but we were still clear that if we can weaken the ANC then we must do that. Also we knew that if we collectivise our vote all the political parties will know that there is a large bloc of votes that will be available at the next election for the party that does the best job in opposing repression and takes the best position on shack settlements.
We decided that all political parties except the ANC would be invited to make a presentation to the movement. Some of our members did not want to invite the DA to make a presentation as they are known to represent the rich and, in Cape Town, they are no different to the ANC when it comes to illegal and violent evictions. However we debated this at length and decided to invite them to make a presentation on the grounds that the removal of the ANC was our first priority and the weakening of the ANC was our second priority.
The DA, EFF, NFP and WASP all accepted the invitation to make a presentation to our members at the Diakonia Centre on 25 April and they all came and made their presentations.
The delegates to that meeting then returned to their branches to discuss the presentations there. We met again on 2 May and held a general meeting. At this meeting the general leadership did not vote as their role was to facilitate the meeting. The rest of the delegates voted and the results were as follows:
2 - undecided
2 - WASP
16 - EFF
26 - NFP
146 – DA
The DA and the EFF returned to witness the voting. WASP did not return. The NFP arrived three hours late with lots of car, bodyguards and their senior people. But by that time we were already dispersing.
The whole meeting was recorded on video and this video can be made available. Even those who were very disappointed with the results agree that it was a highly democratic process. The collective discipline of a democratic organisation requires that we all accept this outcome. Of course this decision is only for this election and it does not bind our members in Cape Town. When the next election comes we will again decide whether or not to vote and, if so, which party to vote for.
The main reason why the majority of the delegates supported the DA was because they wanted to have the strongest possible opposition to the ANC to put the maximum pressure on the ANC and to prevent it from doing what it pleases – which includes murdering us. We negotiated a legal agreement with DA which commits them to support some of our more basic demands. We hope that they will stand up for these issues and that they, and all other parties, will realise that if they want the support of the shack dwellers they will have to support us rather than see us as a problem to be eradicated or forcibly removed from the cities and taken to the human dumping grounds.
We will vote, as one bloc, for the DA tomorrow. We will not take membership of the party, we do not endorse its policies and we will continue to insist that no one can hold a position as an elected leader in our movement if they join a political party. We do not love or trust the DA. Already they are telling lies about our choice and we are not surprised. We have made a purely tactical choice. We will certainly continue to organise against all and any attacks on the poor in Cape Town by the DA government there.
One of the lies that is being told is that the DA are saying that we have endorsed them for this election in the Western Cape. This is not true. Our Western Cape branch has endorsed our decision to make a tactical vote for the DA in KwaZulu-Natal. Our Western Cape branch has not decided to make any collective vote for any party in this election.
Over the last nine years we have protected our autonomy from NGOs very carefully even though we do work with some NGOs. Now that we feel that it is necessary for our safety and our ability to continue to organise to use our numbers to make deals with political parties we will protect our autonomy from political parties in the same way.
Our politics puts people first. We cannot do nothing but wait for socialism to come one day in the far distant future. Our children are dying from diarrhoea right now, our old people and disabled people are dying in shack fires right now, we are being evicted and disconnected right now and we are being beaten and shot during evictions and disconnections right now. We been repressed, and even murdered, right now. We have to act to do what we can to make our members’ lives better right now. We have to act to protect our ability to organise and to sustain our living politics right now. This does not mean that we have given up on our vision of a world where land, cities, wealth and power are shared fairly. We call this a living communism and we remain committed to it. But we also remain committed to the human beings that we are now and to our families, neighbours and comrades. We will make what deals we have to make to protect our politics and improve our members’ lives right now but we will not give up on our political vision. We represent thousands of people who live in shack settlements. Those people who sit in university offices and NGO offices only represent themselves. Their children are safe. Their lives are not at risk. They are free to put ideology before people because they are not accountable to oppressed people and because they are not themselves oppressed people. But the fact that we do not enjoy that freedom does not mean that we have given up our politics. It means that we are searching for a practical way forward in a difficult and dangerous struggle.
The new Abahlali electoral position has offered us a lot to learn about. There is a lot to learn about party politics and its dirty campaigning tactics. There is a lot to learn about the deeper politics of our time. And, yes, there is a lot to learn about who cares and doesn't care about the struggles of the poor and the working class.
Ideology and principle are vital but if they both fail to house the homeless and rescue the repressed and recognise the humanity of the inhumanized then the oppressed are not doing any harm to anyone in trying to emancipate ourselves by taking practical action now to keep people safe and to make their lives better while always keeping a bigger vision of freedom and justice in mind.
We share a sadness that we have had to make this decision. Very few people outside the movement have been witness to what we’ve been going through in the hands of the ANC. We do not have words to explain the pain many of us have gone through. We do not have words to explain our pain of twenty years of shack life and all the state repression that has come to us when we stood up for our humanity. Last year we came to the ceiling of hopelessness. It was clear that we are people that can be freely killed. The stress that this created led to some intense internal conflicts. We knew that we could not carry on with our old politics. Our new position has enabled us to rethink our struggle. It may not be the perfect way but it brought a robust discussion about us that was seriously trying to find ways of creating a new hope from no hope.
We are not surprised at the way some people on the so called left have reacted on our position. We are not surprised at the usual lies from the usual people on the internet. Many people and organisations on the left do not accept that we have the right to think our own struggle and to make our own decisions. They think that because they are on the left they have the right to tell us what to do. We do not accept this. These people see our decision as stupid and as a sell-out while they are nowhere to be seen in our times of great difficulty. It makes us to think that such people enjoy our suffering or even benefit from it. Why will people who claim to be in our support judge us instead of contacting us to first understand our decision? It may be a wrong decision but the reality is that we cannot deceive ourselves purposefully on our pain. Why should we be made to struggle in a way that is only designed to try and impress other people simple because they say that they are on the left? We will never do this. Our members must live in shacks and they must try and survive repression. Their organisation is theirs and it will be directed by their decisions. We have never compromised on this and for this we have always been attacked by the regressive left that only want us to take their money so that in exchange we can arrange for people to be bussed into their meetings. This is not emancipation. It is another kind of oppression.
Is the left doing enough to care about our struggle? Or do they see our struggles as projects from which they can prove and debate their findings and analysis rather than as a struggle to genuinely confront the forces of darkness? Our decision aims at trying to keep the space open for us to liberate ourselves by making a tactical move. We do not love the DA or agree with its policies. Why do people who failed to condemn the ANC attacks on us get so angry with us when we try to punish the ANC by making a tactical vote for its enemy? Maybe for these people it is better for us to be oppressed by the ANC than the DA. For us it is better not to be oppressed. Some of the left is just like some of the development NGOs and some of the state. They want to experiment on us, to use us for their own projects. We say no. On this there is no compromise. We continue to say ‘talk to us, not for us’ and ‘think with us not for us’.
Our position remains honouring those who have supported and who continue to support us. Since we all don't know the answers in this struggle to humanise the world we will keep hunting and trying. Sometimes we will make wrong decisions but at least we offer debate and learning for ourselves and all our friends and comrades.
The ANC are a serious threat to society and to right of the poor to organise freely in this society. They must be removed from office and until we can remove them we must do all that we can to weaken them.
For further information and comment please contact:
Mnikelo Ndabankulu on 081 263 3462
Zodwa Nsibande on 082 902 2960
Thembani Ngongoma on 084 613 9772
Nono Majola on 074 803 1986
Source: Abahlali baseMjondolo
Sunday, February 2, 2014
The politics of Mohammed Morsi's trial
The trial of Mohammed Morsi is a political trial designed by the Egyptian authorities to disgrace, delegitimise and dispose of the Muslim Brotherhood from the Egyptian political landscape. In a seminal study widely regarded as the most definitive account of the political trial, the Frankfurt school jurist Otto Kirchheimer regarded the political trial as a strategic mobilisation of the devices of law and justice to attain political ends.
"The classic political trial", Kirchheimer argued, is one in which the regime "attempt[s] to incriminate its foe's public behaviour with a view to evicting him from the political scene". Morsi's trial is a classic political trial designed to evict Morsi and his movement from the Egyptian political space.
Political trials are inevitable consequences of revolutions. From the English and French revolutions the 17th and 18th century to the Chinese and Iranian revolutions in the 20th century, the courtroom provided a convenient space for a ritualised elimination of former regimes.
Courts are mobilised not so much to eliminate the defunct regimes but to clarify, rationalise, justify and finally authenticate the revolution in an act of judgment. This is what is at work in Morsi's trial - the use of the courtroom to validate and authenticate a contested revolution. The court is not concerned with the determination of guilt and innocence so much as the rationalisation and justification of the events of July 3, 2013.
A revolution, not a coup d'etat?
The rhetoric of law and order, terrorism, and national security are all smokescreens for the power struggle between the Muslim Brotherhood and the military-backed regime. Beneath the rhetoric of terrorism and national security, there are the unfathomable purposes of history and power - a history of a botched revolution; conflicting accounts of what happened on 3 July 2013 (a coup d'etat, a counter-revolution or a second revolution); and the violence and crackdown that followed. The trial reduces these complex historico-political events into an either - or binary proposition that fits the self-referential logic of law.
The charges against Morsi and others - "incitement to violence" and "conspiracy to commit terrorism" - are charges carefully chosen to serve as fulcrums - narrative anchors in which to ground the regime's pedagogic stunts. The trial provides the event - the stage, the language, and the choreography - that lends bodily form, as Alexis De Tocqueville once noted, to the pedagogic enterprise.
As a truth-bearing platform with superior ability of image formation and saturation, the trial gives juridical reality and an appearance of neutrality and objectivity to the narrative of the state.
Within its own self-referential logic, the trial weighs the charges, assigns blame and attributes responsibility for the events alleged by the prosecution. It does not take account of the political and historical war that rages just beneath the invocation of its discourses. The objections of Morsi and his co-accused regarding the coup d'etat, the violence of the military, and the criminal origin of the regime are incompatible with "how the law thinks". For the purpose of criminal law, these are "objection[s] that cannot be heard": They do not signify within law's logic, its rationality, and modes of thought.
Order legitimation and power rationalisation
The immediate purpose of the trial is two-fold. Firstly, the trial is the most effective silencing device: By delegating the matter to a sympathetic judiciary, the regime silences all forms of criticism while it neutralises the political field from its adversary. Secondly, and perhaps most importantly, the trial has the aim of rationalising and justifying the coup d'etat by retroactively situating Morsi's defeat within a broader historical, political and moral narrative.
Using its truth-bearing discourses that allow it to create images that can neither be effaced nor rectified, the trial rationalises and justifies the power of the military regime. By presenting the adversary in the worst possible moral and political light, the trial both elaborates and consolidates a historico-political thesis in the image of the military and its civilian elites. What matters is not the validity or meaningfulness of the image so much as its effectiveness.
By accusing and judging the defendants for these crimes, the regime has a didactic goal that far exceeds the elimination of the Muslim Brotherhood: It aims to create a generative politico-historical thesis and an enduring image capable of instilling fear, prudence and obedience in potential foes. By projecting and amplifying a terrorist image of Morsi and his movement in the courtroom, a site of truth and justice supposedly elevated from the expediency of power and politics, the trial vindicates and authenticates a historico-political thesis in the image of the regime.
'I am your president. You have no legitimacy'
However, trials are not chess games that go according to pre-arranged rules. They can denaturalise, as to expose its flimsy facade of legality. In exercising the authority to judge its enemies, it submits itself to the accusation of its adversaries and the judgment of history. Just as the state uses the devices of law as political weapons, Morsi too can turn to these weapons.
The device is not equally available to the state and Morsi, but the deliberative framework of the trial and the principle of calling to account means that the defendant has a speaking position from which he can give an account of himself and the charges. Indeed, if Morsi's first day in court is any indication to go by, his trial could well be the trial of the military regime.
In his first court appearance, Morsi rejected the legitimacy and the authority of the court to try him. He argues that he is "the legitimate president" of the republic and accuses the military of a coup and treason. He challenges the court to justify how an illegal action - a coup d'etat - gives rise to a legal right that enables the criminals to judge an elected president: "This coup is a crime and treasonous, and the court is held responsible for it."
Morsi's defence will ask questions the prosecutor and the court cannot answer legally: According to what law, according to what rule of judgment and principle of justice do the courts and the social order they serve exercise the right to judge and punish an elected president? For Morsi and his supporters, "This is a military coup whose leaders must be put on trial in accordance with the constitution."
If an elected president can be called to the court to account for these acts, what of the military leaders who committed a treasonous offense? In other words, can the military bring Morsi to the court without calling the Revolution to the court? It is this question that law is ultimately incapable of answering without sliding into the abyss, to its origin in self-help. It is also here that the disjuncture between law and revolutions becomes most manifest, exposing the government and its courts to the judgement of history.
Regardless of how the court frames and ultimately settles these destabilising questions, Morsi's trial brings both the military and the revolution into the courtroom. The narratives and the verdict leave behind traces or remainders that cannot be integrated, or contained by the trial. It is this remainder, this excess, that exceeds the trial's ability to conceal and suppress, that returns to haunt Egypt and unsettle it from within.
Awol K Allo is a Fellow in Human Rights at the London School of Economics and Political Science.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.
Source: Al Jazeera
"The classic political trial", Kirchheimer argued, is one in which the regime "attempt[s] to incriminate its foe's public behaviour with a view to evicting him from the political scene". Morsi's trial is a classic political trial designed to evict Morsi and his movement from the Egyptian political space.
Political trials are inevitable consequences of revolutions. From the English and French revolutions the 17th and 18th century to the Chinese and Iranian revolutions in the 20th century, the courtroom provided a convenient space for a ritualised elimination of former regimes.
Courts are mobilised not so much to eliminate the defunct regimes but to clarify, rationalise, justify and finally authenticate the revolution in an act of judgment. This is what is at work in Morsi's trial - the use of the courtroom to validate and authenticate a contested revolution. The court is not concerned with the determination of guilt and innocence so much as the rationalisation and justification of the events of July 3, 2013.
A revolution, not a coup d'etat?
The rhetoric of law and order, terrorism, and national security are all smokescreens for the power struggle between the Muslim Brotherhood and the military-backed regime. Beneath the rhetoric of terrorism and national security, there are the unfathomable purposes of history and power - a history of a botched revolution; conflicting accounts of what happened on 3 July 2013 (a coup d'etat, a counter-revolution or a second revolution); and the violence and crackdown that followed. The trial reduces these complex historico-political events into an either - or binary proposition that fits the self-referential logic of law.
The charges against Morsi and others - "incitement to violence" and "conspiracy to commit terrorism" - are charges carefully chosen to serve as fulcrums - narrative anchors in which to ground the regime's pedagogic stunts. The trial provides the event - the stage, the language, and the choreography - that lends bodily form, as Alexis De Tocqueville once noted, to the pedagogic enterprise.
As a truth-bearing platform with superior ability of image formation and saturation, the trial gives juridical reality and an appearance of neutrality and objectivity to the narrative of the state.
Within its own self-referential logic, the trial weighs the charges, assigns blame and attributes responsibility for the events alleged by the prosecution. It does not take account of the political and historical war that rages just beneath the invocation of its discourses. The objections of Morsi and his co-accused regarding the coup d'etat, the violence of the military, and the criminal origin of the regime are incompatible with "how the law thinks". For the purpose of criminal law, these are "objection[s] that cannot be heard": They do not signify within law's logic, its rationality, and modes of thought.
Order legitimation and power rationalisation
The immediate purpose of the trial is two-fold. Firstly, the trial is the most effective silencing device: By delegating the matter to a sympathetic judiciary, the regime silences all forms of criticism while it neutralises the political field from its adversary. Secondly, and perhaps most importantly, the trial has the aim of rationalising and justifying the coup d'etat by retroactively situating Morsi's defeat within a broader historical, political and moral narrative.
Using its truth-bearing discourses that allow it to create images that can neither be effaced nor rectified, the trial rationalises and justifies the power of the military regime. By presenting the adversary in the worst possible moral and political light, the trial both elaborates and consolidates a historico-political thesis in the image of the military and its civilian elites. What matters is not the validity or meaningfulness of the image so much as its effectiveness.
By accusing and judging the defendants for these crimes, the regime has a didactic goal that far exceeds the elimination of the Muslim Brotherhood: It aims to create a generative politico-historical thesis and an enduring image capable of instilling fear, prudence and obedience in potential foes. By projecting and amplifying a terrorist image of Morsi and his movement in the courtroom, a site of truth and justice supposedly elevated from the expediency of power and politics, the trial vindicates and authenticates a historico-political thesis in the image of the regime.
'I am your president. You have no legitimacy'
However, trials are not chess games that go according to pre-arranged rules. They can denaturalise, as to expose its flimsy facade of legality. In exercising the authority to judge its enemies, it submits itself to the accusation of its adversaries and the judgment of history. Just as the state uses the devices of law as political weapons, Morsi too can turn to these weapons.
The device is not equally available to the state and Morsi, but the deliberative framework of the trial and the principle of calling to account means that the defendant has a speaking position from which he can give an account of himself and the charges. Indeed, if Morsi's first day in court is any indication to go by, his trial could well be the trial of the military regime.
In his first court appearance, Morsi rejected the legitimacy and the authority of the court to try him. He argues that he is "the legitimate president" of the republic and accuses the military of a coup and treason. He challenges the court to justify how an illegal action - a coup d'etat - gives rise to a legal right that enables the criminals to judge an elected president: "This coup is a crime and treasonous, and the court is held responsible for it."
Morsi's defence will ask questions the prosecutor and the court cannot answer legally: According to what law, according to what rule of judgment and principle of justice do the courts and the social order they serve exercise the right to judge and punish an elected president? For Morsi and his supporters, "This is a military coup whose leaders must be put on trial in accordance with the constitution."
If an elected president can be called to the court to account for these acts, what of the military leaders who committed a treasonous offense? In other words, can the military bring Morsi to the court without calling the Revolution to the court? It is this question that law is ultimately incapable of answering without sliding into the abyss, to its origin in self-help. It is also here that the disjuncture between law and revolutions becomes most manifest, exposing the government and its courts to the judgement of history.
Regardless of how the court frames and ultimately settles these destabilising questions, Morsi's trial brings both the military and the revolution into the courtroom. The narratives and the verdict leave behind traces or remainders that cannot be integrated, or contained by the trial. It is this remainder, this excess, that exceeds the trial's ability to conceal and suppress, that returns to haunt Egypt and unsettle it from within.
Awol K Allo is a Fellow in Human Rights at the London School of Economics and Political Science.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.
Source: Al Jazeera
Tuesday, December 10, 2013
Obama's tribute to Mandela: The full speech
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
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
Thursday, October 17, 2013
Marikana funding case hints at larger problems with gaining access to justice
Most South Africans do not have effective access to justice. Without adequate legal representation, which few people can afford, not many litigants or criminal defendants will truly savour the sweet taste of justice. While banks, other large corporations, the very wealthy and organs of state will have the funds to employ an army of lawyers to exploit every legal loophole and to pursue every legal argument to win their case, most ordinary persons of moderate means will not. Unless the legal system is substantially reformed or the state pumps billions of rands into the Legal Aid system, this will not change – despite the quixotic court victory of the survivors of the Marikana massacre to legal representation at state expense.
The Marikana massacre, in which the South African Police Service (SAPS) killed 34 striking mine workers, may well turn out to have been a watershed moment in South African politics. From where I sit, it looks suspiciously as if the ruling elite (ab)used its control of the SAPS (or its political access to those who control the SAPS) to teach miners taking part in a violent and unprotected strike a “lesson”, because these striking miners threatened its financial and class interests. As a result, 34 striking and protesting miners were killed by the SAPS and more than 78 people were injured.
The Farlam Commission of Inquiry into the massacre, and the events that led up to it, may not come to the same conclusion. Commissions of Inquiry – even Commissions that do a good job – are usually better at determining the small truths than at uncovering the larger political truths of a tragic event like this. It is also not yet clear to what extent the alleged SAPS cover-up of the event and the possible protection of political principals and mine company executives will succeed.
This does not mean that the work done by the Farlam Commission is not important. Like the Truth and Reconciliation Commission it might uncover at least part of the truth, creating a factual matrix within which, over time, we will come to understand the political significance of the events on 16 August 2012. For that reason it is essential that the Commission must be seen to be acting fairly: if its findings are not trusted by everyone, it will be difficult to rely on these findings as a springboard for more searching analysis of the political import of the Marikana massacre.
The Commission’s legitimacy was threatened by the withdrawal of the legal teams representing the families of the killed miners as well as of the injured and arrested miners because of a dispute about the funding of the lawyers of the injured and arrested miners (led by Adv. Dali Mpofu). It therefore came as a great relief when the North Gauteng High Court (in a legally daring judgment by Makgoka J) in the case of Magidiwana and Another v President of the Republic of South Africa and Others ordered Legal Aid SA to fund Adv. Mpofu and his team.
I am delighted that Legal Aid SA has now agreed to fund Adv. Mpofu’s team. However, Legal Aid SA may still appeal the judgment because of the potentially far-reaching consequences the judgment poses to the continued financial viability of Legal Aid SA and it will not at all be surprising if such an appeal succeeds.
The bulk of the judgment focuses on the right of surviving miners to be represented by legal representatives and does an admirable job of showing why section 34 of the Constitution – which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing – entitles miners to such legal representation.
What the judgment fails to do convincingly, in my opinion, is to show that this right must translate into a right to have those lawyers funded at state expense through Legal Aid SA.
As Legal Aid SA eventually conceded, its CEO does have the general discretion to fund the lawyers of interested parties who appear before a Commission of Inquiry. In fact, Legal Aid SA funded the lawyers of families of the deceased miners in accordance with this general discretion. The question is whether its decision to fund the lawyers representing the families of deceased miners (but not the injured and arrested miners) could be declared unconstitutional on the basis that it was irrational to fund the former but not the latter.
The court found that the injured and arrested miners did have a right to state funded legal representation in general, given their substantial and direct interest in the outcome of the commission; their vulnerability and financial position; the complexity of the proceedings and the capacity of the applicants to represent themselves; the procedures adopted by the commission; the need for an “equality of arms” between the parties; and the potential consequences of the findings and recommendations of the commission for the injured and arrested miners.
In a wonderful passage that could easily apply to the vast majority of litigants and accused persons of modest means who need legal representation in South Africa, the court stated:
Moreover, the court pointed out that the SAPS legal team is said to comprise five advocates (three senior counsel and two senior-junior counsel). In addition, the SAPS also use the services of a private firm of attorneys in Rustenburg, instead of State Attorney. Furthermore, the Minister of Police, whose interests should ordinarily coincide with those of SAPS, for some reason maintains a separate legal team on a so-called “watching brief” at the Commission (a fact that raises its own set of questions about the possible political involvement in the events of 16 August 2012).
According to the court, the State parties’ legal representation costs approximately R2 million to R3 million per month.
The judgment therefore concludes that considerations of fairness and the need for “equality of arms” between the parties require the state to fund the legal representatives of the miners. The interests of justice and the rule of law would be undermined by a failure to fund their lawyers.
It would be difficult to argue with the court that it would be fundamentally unfair for one party to be represented by lawyers to the cost of up to R3 million a month while another party with a direct interest in the outcome of the Commission have no legal representation at all. After all, those involved in the killing and injuring of the miners are represented by an army of lawyers, ever alert to protect the interest of their clients, who would obviously like to pin the blame for the massacre on the miners themselves in order to absolve the SAPS and its political principal from any blame. It seems extremely unfair that the one side is so well protected while one of the other parties is not.
However, apart from the profound political importance of the case, this situation is not fundamentally different from that faced daily by many litigants or potential litigants who wish to go to court to enforce their legal rights or to challenge the abuse of power or the flouting of the law by big banks, other large corporations, wealthy individuals or the state. Legal Aid SA very seldom provides funding for such litigants due to an acute shortage of Legal Aid funds. It is mandated by its rules and by the Constitution to fund lawyers for indigent criminal defendants “if substantial injustice would otherwise result”, but the Constitution does not explicitly impose a duty on the state (and hence Legal Aid SA) to fund civil matters (nor matters relating to Commissions of Inquiry).
Because of a lack of funds to pay good lawyers capable of taking on the “big boys” (and the difficulty of securing the services of such lawyers, given the financial interests many lawyers have in representing the “big boys” instead), ordinary people – both poor people and middle class people – often face insurmountable hurdles in securing justice in court.
There are no quick fix solutions to secure better access to justice for most South Africans. It would help if the state pumped additional billions of rands into the legal aid system – but that is not going to happen. Funds are needed for other “important” state matters – like upgrading the private residence of the president.
Establishing a system in which recent law graduates do one year of community service – similar to medical graduates – to assist indigent litigants may also help to secure better access to justice, but that would require a gargantuan administrative effort from the Department of Justice. The Department currently probably does not have the financial and human resources to pull this off successfully.
Simplifying legal rules and moving away from the absurdly rigid application of these rules by some courts, will also help. Many procedural rules unnecessary complicate litigation and increase costs – often to the advantage of those litigants with the deepest pockets and hence the best lawyers. It goes without saying that litigants without lawyers are often unfairly disadvantaged by these rules or are precluded from benefiting from access to the legal system at all because of their lack of knowledge of the rules.
But because of the formalistic legal culture – often inculcated and perpetuated by untransformed legal training provided at Law Schools – and because lawyers often benefit financially from the complicated and formalistic legal rules, there seems to be little appetite among elites in the legal profession to champion the streamlining and simplification of procedural rules.
It is judged against this background that the ultimate decision of the court in the Marikana case gets to look a bit shaky. This is so, not because it would have been fair to deny the injured and arrested miners legal representation at state expense, but because it is not clear that the decision of Legal Aid SA not to fund the lawyers can be said to have been irrational, given its many other commitments and the almost infinite demands on its limited funds.
Legal Aid SA provided three reasons for funding the legal team representing the families of the killed miners but not the legal team of the injured and arrested miners. First it claimed that the former group had a “substantial, proximate, and material interest in the outcome of the commission” to a degree that the latter did not. Second, it claimed that the latter group’s interests would be adequately protected by labour unions, NUM and AMCU. Third, it claimed that due to budgetary constraints it could not fund both parties.
The court (seemingly confusing or conflating the requirements for legality contained in section 1 of the Constitution and the test for a breach of section 9(1) of the Constitution) affirmed, correctly, that the exercise of public power by the executive and other functionaries should not be irrational. The court, more controversially, concluded that the refusal by Legal Aid SA to provide legal aid to the injured and arrested miners was not rationally related to the purpose of the Legal Aid Act, (as far as I can tell) because it found that this was not done to pursue a legitimate purpose.
The court did not really explain why this was the case. If the purpose of the decision was to manage Legal Aid SA’s funds properly, it is unclear why it would be irrational for Legal Aid SA to fund the one group but not the other. There is also clearly a difference in the position between the two groups: the loved ones of one group were killed, while the members of the other group are still alive.
Rationality review does not allow the court to set aside a decision of a public body because that body acted unwisely or because another decision would have resulted in a fairer outcome. It only allows the court to interfere if it can be shown that there was no rational reason for its decision: in other words, when the decision is arbitrary or capricious. In this case one can argue about the wisdom of the Legal Aid SA decision, but I am not sure one can say with confidence that it was irrational. To hold otherwise would have potentially catastrophic consequences for the financial viability of Legal Aid SA.
Despite the shaky legal argumentation, the judgment must be welcomed. Hopefully the clear injustice illustrated by the case may well spark a broader debate about the lack of access to justice and about what steps can be taken by the government and by the legal profession to provide ordinary people with a better chance to access the skills of competent lawyers.
Source: Constitutionally Speaking
The Marikana massacre, in which the South African Police Service (SAPS) killed 34 striking mine workers, may well turn out to have been a watershed moment in South African politics. From where I sit, it looks suspiciously as if the ruling elite (ab)used its control of the SAPS (or its political access to those who control the SAPS) to teach miners taking part in a violent and unprotected strike a “lesson”, because these striking miners threatened its financial and class interests. As a result, 34 striking and protesting miners were killed by the SAPS and more than 78 people were injured.
The Farlam Commission of Inquiry into the massacre, and the events that led up to it, may not come to the same conclusion. Commissions of Inquiry – even Commissions that do a good job – are usually better at determining the small truths than at uncovering the larger political truths of a tragic event like this. It is also not yet clear to what extent the alleged SAPS cover-up of the event and the possible protection of political principals and mine company executives will succeed.
This does not mean that the work done by the Farlam Commission is not important. Like the Truth and Reconciliation Commission it might uncover at least part of the truth, creating a factual matrix within which, over time, we will come to understand the political significance of the events on 16 August 2012. For that reason it is essential that the Commission must be seen to be acting fairly: if its findings are not trusted by everyone, it will be difficult to rely on these findings as a springboard for more searching analysis of the political import of the Marikana massacre.
The Commission’s legitimacy was threatened by the withdrawal of the legal teams representing the families of the killed miners as well as of the injured and arrested miners because of a dispute about the funding of the lawyers of the injured and arrested miners (led by Adv. Dali Mpofu). It therefore came as a great relief when the North Gauteng High Court (in a legally daring judgment by Makgoka J) in the case of Magidiwana and Another v President of the Republic of South Africa and Others ordered Legal Aid SA to fund Adv. Mpofu and his team.
I am delighted that Legal Aid SA has now agreed to fund Adv. Mpofu’s team. However, Legal Aid SA may still appeal the judgment because of the potentially far-reaching consequences the judgment poses to the continued financial viability of Legal Aid SA and it will not at all be surprising if such an appeal succeeds.
The bulk of the judgment focuses on the right of surviving miners to be represented by legal representatives and does an admirable job of showing why section 34 of the Constitution – which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing – entitles miners to such legal representation.
What the judgment fails to do convincingly, in my opinion, is to show that this right must translate into a right to have those lawyers funded at state expense through Legal Aid SA.
As Legal Aid SA eventually conceded, its CEO does have the general discretion to fund the lawyers of interested parties who appear before a Commission of Inquiry. In fact, Legal Aid SA funded the lawyers of families of the deceased miners in accordance with this general discretion. The question is whether its decision to fund the lawyers representing the families of deceased miners (but not the injured and arrested miners) could be declared unconstitutional on the basis that it was irrational to fund the former but not the latter.
The court found that the injured and arrested miners did have a right to state funded legal representation in general, given their substantial and direct interest in the outcome of the commission; their vulnerability and financial position; the complexity of the proceedings and the capacity of the applicants to represent themselves; the procedures adopted by the commission; the need for an “equality of arms” between the parties; and the potential consequences of the findings and recommendations of the commission for the injured and arrested miners.
In a wonderful passage that could easily apply to the vast majority of litigants and accused persons of modest means who need legal representation in South Africa, the court stated:
The fact that they [the miners] are poor should never be a basis to summarily dismiss their potential substantial prejudice. It is unthinkable and deeply offensive to basic fairness and the rule of law in a democratic state that the poor and vulnerable be left to their own devices, in a manner that will deny them exercise of their constitutional right in terms of s. 34 of the Constitution.
Moreover, the court pointed out that the SAPS legal team is said to comprise five advocates (three senior counsel and two senior-junior counsel). In addition, the SAPS also use the services of a private firm of attorneys in Rustenburg, instead of State Attorney. Furthermore, the Minister of Police, whose interests should ordinarily coincide with those of SAPS, for some reason maintains a separate legal team on a so-called “watching brief” at the Commission (a fact that raises its own set of questions about the possible political involvement in the events of 16 August 2012).
According to the court, the State parties’ legal representation costs approximately R2 million to R3 million per month.
The judgment therefore concludes that considerations of fairness and the need for “equality of arms” between the parties require the state to fund the legal representatives of the miners. The interests of justice and the rule of law would be undermined by a failure to fund their lawyers.
It would be difficult to argue with the court that it would be fundamentally unfair for one party to be represented by lawyers to the cost of up to R3 million a month while another party with a direct interest in the outcome of the Commission have no legal representation at all. After all, those involved in the killing and injuring of the miners are represented by an army of lawyers, ever alert to protect the interest of their clients, who would obviously like to pin the blame for the massacre on the miners themselves in order to absolve the SAPS and its political principal from any blame. It seems extremely unfair that the one side is so well protected while one of the other parties is not.
However, apart from the profound political importance of the case, this situation is not fundamentally different from that faced daily by many litigants or potential litigants who wish to go to court to enforce their legal rights or to challenge the abuse of power or the flouting of the law by big banks, other large corporations, wealthy individuals or the state. Legal Aid SA very seldom provides funding for such litigants due to an acute shortage of Legal Aid funds. It is mandated by its rules and by the Constitution to fund lawyers for indigent criminal defendants “if substantial injustice would otherwise result”, but the Constitution does not explicitly impose a duty on the state (and hence Legal Aid SA) to fund civil matters (nor matters relating to Commissions of Inquiry).
Because of a lack of funds to pay good lawyers capable of taking on the “big boys” (and the difficulty of securing the services of such lawyers, given the financial interests many lawyers have in representing the “big boys” instead), ordinary people – both poor people and middle class people – often face insurmountable hurdles in securing justice in court.
There are no quick fix solutions to secure better access to justice for most South Africans. It would help if the state pumped additional billions of rands into the legal aid system – but that is not going to happen. Funds are needed for other “important” state matters – like upgrading the private residence of the president.
Establishing a system in which recent law graduates do one year of community service – similar to medical graduates – to assist indigent litigants may also help to secure better access to justice, but that would require a gargantuan administrative effort from the Department of Justice. The Department currently probably does not have the financial and human resources to pull this off successfully.
Simplifying legal rules and moving away from the absurdly rigid application of these rules by some courts, will also help. Many procedural rules unnecessary complicate litigation and increase costs – often to the advantage of those litigants with the deepest pockets and hence the best lawyers. It goes without saying that litigants without lawyers are often unfairly disadvantaged by these rules or are precluded from benefiting from access to the legal system at all because of their lack of knowledge of the rules.
But because of the formalistic legal culture – often inculcated and perpetuated by untransformed legal training provided at Law Schools – and because lawyers often benefit financially from the complicated and formalistic legal rules, there seems to be little appetite among elites in the legal profession to champion the streamlining and simplification of procedural rules.
It is judged against this background that the ultimate decision of the court in the Marikana case gets to look a bit shaky. This is so, not because it would have been fair to deny the injured and arrested miners legal representation at state expense, but because it is not clear that the decision of Legal Aid SA not to fund the lawyers can be said to have been irrational, given its many other commitments and the almost infinite demands on its limited funds.
Legal Aid SA provided three reasons for funding the legal team representing the families of the killed miners but not the legal team of the injured and arrested miners. First it claimed that the former group had a “substantial, proximate, and material interest in the outcome of the commission” to a degree that the latter did not. Second, it claimed that the latter group’s interests would be adequately protected by labour unions, NUM and AMCU. Third, it claimed that due to budgetary constraints it could not fund both parties.
The court (seemingly confusing or conflating the requirements for legality contained in section 1 of the Constitution and the test for a breach of section 9(1) of the Constitution) affirmed, correctly, that the exercise of public power by the executive and other functionaries should not be irrational. The court, more controversially, concluded that the refusal by Legal Aid SA to provide legal aid to the injured and arrested miners was not rationally related to the purpose of the Legal Aid Act, (as far as I can tell) because it found that this was not done to pursue a legitimate purpose.
The court did not really explain why this was the case. If the purpose of the decision was to manage Legal Aid SA’s funds properly, it is unclear why it would be irrational for Legal Aid SA to fund the one group but not the other. There is also clearly a difference in the position between the two groups: the loved ones of one group were killed, while the members of the other group are still alive.
Rationality review does not allow the court to set aside a decision of a public body because that body acted unwisely or because another decision would have resulted in a fairer outcome. It only allows the court to interfere if it can be shown that there was no rational reason for its decision: in other words, when the decision is arbitrary or capricious. In this case one can argue about the wisdom of the Legal Aid SA decision, but I am not sure one can say with confidence that it was irrational. To hold otherwise would have potentially catastrophic consequences for the financial viability of Legal Aid SA.
Despite the shaky legal argumentation, the judgment must be welcomed. Hopefully the clear injustice illustrated by the case may well spark a broader debate about the lack of access to justice and about what steps can be taken by the government and by the legal profession to provide ordinary people with a better chance to access the skills of competent lawyers.
Source: Constitutionally Speaking
Saturday, June 22, 2013
Agang launch: Nkandla, Guptas, Arms Deal - Ramphele criticises government
"The leaders of this current government set an appalling example that others follow ... They seem to think they are beyond the reach of the law," Agang SA leader Mamphela Ramphele said on Saturday at the Tshwane Events Centre.
"One by one they have systematically attacked the very foundations of our constitutional democracy, the judicial system, the freedom of the press, accountability of government and the human rights of all citizens."
She said the arrogance of the current government was "breathtaking". It was acting with impunity and abusing "the resources of the state for the enrichment of a party, themselves and their friends".
"The arms deal, Nkandla, the Guptas, the list of these abuses goes on and on," she said to a cheering crowd.
The former activist and businessperson was welcomed by cheers from the crowd who arrived to support her new party.
More than a thousand people, mostly dressed in white T-shirts with Agang SA printed on them, listened intently and cheered as Ramphele spoke about problems facing South Africa.
For the past five months Ramphele visited communities around the country listening to people's concerns.
"We are here to begin the restoration of the promise of our great nation and to offer the hope of a better future for South Africa," she told the crowd.
"There is a desperate need for change."
Leaders failed to deliver
After nearly 20 years, the country's leaders failed to deliver on the promise of freedom, she said. Adding that it was too long to wait for jobs, education and healthcare.
Ramphele said the country had reached a crossroads.
"I for one do not want to think about where we will be in five years time unless we change course. Imagine five more years of corruption," she said as the crowd shouted "no".
"Imagine five more years of young people being lost from the education system and the economy. Five more years of millions of people entering the workforce but not having jobs. Five more years of non-functioning hospitals and clinics."
However, the country had potential and it was this, according to Ramphele, which inspired her at the age of 65 to enter South African politics and start Agang SA.
During Ramphele's speech the mostly youthful crowd, started shouting "enough is enough".
She introduced her campaign team calling them world-class.
Nkosinathi Solomon, who joined Agang from Absa, was the campaign director.
Also on the team were Dr Mills Soko, director of policy, from the University of Cape Town's graduate school of business, Thabo Leshilo, a former Sowetan editor as director of communications, Zohra Dawood as director of fundraising and Rorisang Tshabalala as deputy director of field management.
Elective conference
Ramphele also announced that Vanessa Hani, former South African Communist Party leader Chris Hani's daughter, would join her team to focus on mobilising women as part of the field management team.
Moeketsi Mosola joined as political director and would lead the creation of the party's political leadership.
Ramphele said Agang would hold an elective conference towards the end of the year.
"There are many experienced parliamentarians and battle hardened activists who will join our national and provincial leadership in the coming months," she said.
"We will strike a balance between old hands and many new faces." – Sapa
Source: Mail & Guardian
"One by one they have systematically attacked the very foundations of our constitutional democracy, the judicial system, the freedom of the press, accountability of government and the human rights of all citizens."
She said the arrogance of the current government was "breathtaking". It was acting with impunity and abusing "the resources of the state for the enrichment of a party, themselves and their friends".
"The arms deal, Nkandla, the Guptas, the list of these abuses goes on and on," she said to a cheering crowd.
The former activist and businessperson was welcomed by cheers from the crowd who arrived to support her new party.
More than a thousand people, mostly dressed in white T-shirts with Agang SA printed on them, listened intently and cheered as Ramphele spoke about problems facing South Africa.
For the past five months Ramphele visited communities around the country listening to people's concerns.
"We are here to begin the restoration of the promise of our great nation and to offer the hope of a better future for South Africa," she told the crowd.
"There is a desperate need for change."
Leaders failed to deliver
After nearly 20 years, the country's leaders failed to deliver on the promise of freedom, she said. Adding that it was too long to wait for jobs, education and healthcare.
Ramphele said the country had reached a crossroads.
"I for one do not want to think about where we will be in five years time unless we change course. Imagine five more years of corruption," she said as the crowd shouted "no".
"Imagine five more years of young people being lost from the education system and the economy. Five more years of millions of people entering the workforce but not having jobs. Five more years of non-functioning hospitals and clinics."
However, the country had potential and it was this, according to Ramphele, which inspired her at the age of 65 to enter South African politics and start Agang SA.
During Ramphele's speech the mostly youthful crowd, started shouting "enough is enough".
She introduced her campaign team calling them world-class.
Nkosinathi Solomon, who joined Agang from Absa, was the campaign director.
Also on the team were Dr Mills Soko, director of policy, from the University of Cape Town's graduate school of business, Thabo Leshilo, a former Sowetan editor as director of communications, Zohra Dawood as director of fundraising and Rorisang Tshabalala as deputy director of field management.
Elective conference
Ramphele also announced that Vanessa Hani, former South African Communist Party leader Chris Hani's daughter, would join her team to focus on mobilising women as part of the field management team.
Moeketsi Mosola joined as political director and would lead the creation of the party's political leadership.
Ramphele said Agang would hold an elective conference towards the end of the year.
"There are many experienced parliamentarians and battle hardened activists who will join our national and provincial leadership in the coming months," she said.
"We will strike a balance between old hands and many new faces." – Sapa
Source: Mail & Guardian
Monday, January 14, 2013
Mthethwa fails to stop Zille's police inquiry
A high court has dismissed an application by the police minister for an interdict against a commission of inquiry into Khayelitsha's policing.
On Monday the Western Cape High Court announced its dismissal of Police Minister Nathi Mthethwa's urgent interdict against the commission set up by Premier Helen Zille last year. The commission – headed by advocate Vusi Pikoli and retired Constitutional Court Judge Catherine O’Reagan – was tasked with investigating allegations of police inefficiency and the breakdown of the relationship of the police after public lobbying by organisations such as Equal Education, the Social Justice Coalition and the Treatment Action Campaign.
In response to arguments by advocates representing Zille, the Social Justice Coalition and the commission itself last year, Mthethwa's legal team argued Zille's decision to appoint the commission would have an impact on the independence of the South African Police Service. Advocate Peter Hawthorne, acting for the coalition, on Monday told the court Mthethwa's legal team failed to prove the commission would cause irreparable harm to the SAPS. The commission was meant to hold public hearings from November 12 to December 14, which was since suspended pending the outcome of Mthethwa's application.
Last year the M&G reported that there had been more than 18 vigilante killings in Khayelitsha in 2012 – which activists related to the community’s lack of trust in the police’s ability to maintain order – as well as a spate of gang violence in the area.
"The rationale behind the setting up of such a commission, which, at a strategic level, only focuses on the South African Police Service and not the Western Cape metro police, is suspicious if not questionable," Mthethwa said in November after the commission was set up.
"Despite the engagements we held with the premier over the past weeks, it is evident that she is determined to continue with the commission by hook or crook, which leaves us with no option but to challenge the matter through the legal framework," said Mthethwa when he challenged the validity of the commission.
Following Mthethwa’s urgent interdict in November, many residents of Khayelitsha and activists – including Social Justice Coalition founder Zackie Achmat and its workers – gathered outside the Western Cape High Court last year to protest against the police minister's attempt to stop the commission of inquiry.
Outside the court on Monday residents took part in the “people’s commission of inquiry into crime in Khayelitsha” where they shared stories about their experiences with the police in the township, and Achmat used a loudspeaker to call witnesses to the "stand".
Source: Mail & Guardian
On Monday the Western Cape High Court announced its dismissal of Police Minister Nathi Mthethwa's urgent interdict against the commission set up by Premier Helen Zille last year. The commission – headed by advocate Vusi Pikoli and retired Constitutional Court Judge Catherine O’Reagan – was tasked with investigating allegations of police inefficiency and the breakdown of the relationship of the police after public lobbying by organisations such as Equal Education, the Social Justice Coalition and the Treatment Action Campaign.
In response to arguments by advocates representing Zille, the Social Justice Coalition and the commission itself last year, Mthethwa's legal team argued Zille's decision to appoint the commission would have an impact on the independence of the South African Police Service. Advocate Peter Hawthorne, acting for the coalition, on Monday told the court Mthethwa's legal team failed to prove the commission would cause irreparable harm to the SAPS. The commission was meant to hold public hearings from November 12 to December 14, which was since suspended pending the outcome of Mthethwa's application.
Last year the M&G reported that there had been more than 18 vigilante killings in Khayelitsha in 2012 – which activists related to the community’s lack of trust in the police’s ability to maintain order – as well as a spate of gang violence in the area.
"The rationale behind the setting up of such a commission, which, at a strategic level, only focuses on the South African Police Service and not the Western Cape metro police, is suspicious if not questionable," Mthethwa said in November after the commission was set up.
"Despite the engagements we held with the premier over the past weeks, it is evident that she is determined to continue with the commission by hook or crook, which leaves us with no option but to challenge the matter through the legal framework," said Mthethwa when he challenged the validity of the commission.
Following Mthethwa’s urgent interdict in November, many residents of Khayelitsha and activists – including Social Justice Coalition founder Zackie Achmat and its workers – gathered outside the Western Cape High Court last year to protest against the police minister's attempt to stop the commission of inquiry.
Outside the court on Monday residents took part in the “people’s commission of inquiry into crime in Khayelitsha” where they shared stories about their experiences with the police in the township, and Achmat used a loudspeaker to call witnesses to the "stand".
Source: Mail & Guardian
Thursday, November 29, 2012
Glenister prepares for round 3 in ConCourt over Hawks Act
Hugh Glenister is preparing to return to the Constitutional Court, to argue that the amendments to the South African Police Amendment Act - known as the ‘Hawks Act' - do not meet that Court's criteria for an effective anti-corruption entity as laid out in the Glenister judgment of March 2011.
The Act was signed into law by President Zuma in September this year. Glenister submitted a notice of application to the Court today.
Glenister and his legal counsel have asked that the Court give the executive six months to remedy the legislation once again, and have suggested that a new entity with a specific mandate to combat corruption be established outside of the police service. Glenister says that this could be achieved in a number of ways, either through the creation of:
a new Chapter 9 institution;
a specialised unit within an existing Chapter 9 Institution (e.g. The office of the Public Protector or the Auditor General); or
a free-standing legislated body which is not accountable to the National Commissioner, the Minister or the cabinet.
The SAPS Amendment Act was first passed into law in 2008, when anti-corruption unit, the Scorpions, was disbanded and replaced by the Directorate for Priority Crime Investigation, a new unit within the police service known as ‘the Hawks'.
Glenister successfully argued that the legislation establishing the Hawks was unconstitutional when he won the 2011 ‘Glenister judgement' in the Constitutional Court. The Court found that the SAPS Amendment Act gave inadequate independence to the anti-graft unit in investigating corruption and gave the executive 18 months to amend the legislation. The cut-off date was 18 September 2012.
In its judgement, the Court clearly outlined its criteria for South Africa's anti-corruption entity:
Adequate specialisation and training;
independence from political influence and interference;
guaranteed resources; and
security of tenure for the entity's officials.
However, Glenister believes that the executive failed to adhere to these criteria and therefore to the requirements of the Constitution, specifically regarding the location of the Hawks and its reporting structure.
As a unit within the police, the Hawks head is answerable to the Commissioner of Police, the Minister of Police, Cabinet and ultimately, the President. Glenister believes that this makes the unit vulnerable to political meddling, compromising its ability to effectively investigate corruption at all levels of society.
"How can the Hawks combat corruption within the public sector if the ruling party has control over who can be investigated and who is above the law?" says Glenister, "The unit has its hands tied and is vulnerable to the kind of political interference which resulted in corruption charges being withdrawn against the President, without the opportunity of being tested in court."
According to the 2008/2009 annual report of the National Prosecuting Authority, the number of new investigations has dropped by 85% since the Hawks took over from the Scorpions in 2008, and the value of illegally acquired assets seized has fallen from R4 billion to R35 million.
Additionally, public perception about corruption within the SAPS is at an all time low according to an October survey by market research firm, TNS, which revealed that it is seen as the most corrupt government entity in South Africa. The Court regards public perception of independence as a relevant factor in its deliberations on the effectiveness and autonomy of the tweaked Hawks unit.
"If the unit itself is corrupt, how can it be expected to fight corruption?"
Statement issued by FTI Consulting on behalf of Hugh Glenister, November 29 2012
Source: Politicsweb
The Act was signed into law by President Zuma in September this year. Glenister submitted a notice of application to the Court today.
Glenister and his legal counsel have asked that the Court give the executive six months to remedy the legislation once again, and have suggested that a new entity with a specific mandate to combat corruption be established outside of the police service. Glenister says that this could be achieved in a number of ways, either through the creation of:
a new Chapter 9 institution;
a specialised unit within an existing Chapter 9 Institution (e.g. The office of the Public Protector or the Auditor General); or
a free-standing legislated body which is not accountable to the National Commissioner, the Minister or the cabinet.
The SAPS Amendment Act was first passed into law in 2008, when anti-corruption unit, the Scorpions, was disbanded and replaced by the Directorate for Priority Crime Investigation, a new unit within the police service known as ‘the Hawks'.
Glenister successfully argued that the legislation establishing the Hawks was unconstitutional when he won the 2011 ‘Glenister judgement' in the Constitutional Court. The Court found that the SAPS Amendment Act gave inadequate independence to the anti-graft unit in investigating corruption and gave the executive 18 months to amend the legislation. The cut-off date was 18 September 2012.
In its judgement, the Court clearly outlined its criteria for South Africa's anti-corruption entity:
Adequate specialisation and training;
independence from political influence and interference;
guaranteed resources; and
security of tenure for the entity's officials.
However, Glenister believes that the executive failed to adhere to these criteria and therefore to the requirements of the Constitution, specifically regarding the location of the Hawks and its reporting structure.
As a unit within the police, the Hawks head is answerable to the Commissioner of Police, the Minister of Police, Cabinet and ultimately, the President. Glenister believes that this makes the unit vulnerable to political meddling, compromising its ability to effectively investigate corruption at all levels of society.
"How can the Hawks combat corruption within the public sector if the ruling party has control over who can be investigated and who is above the law?" says Glenister, "The unit has its hands tied and is vulnerable to the kind of political interference which resulted in corruption charges being withdrawn against the President, without the opportunity of being tested in court."
According to the 2008/2009 annual report of the National Prosecuting Authority, the number of new investigations has dropped by 85% since the Hawks took over from the Scorpions in 2008, and the value of illegally acquired assets seized has fallen from R4 billion to R35 million.
Additionally, public perception about corruption within the SAPS is at an all time low according to an October survey by market research firm, TNS, which revealed that it is seen as the most corrupt government entity in South Africa. The Court regards public perception of independence as a relevant factor in its deliberations on the effectiveness and autonomy of the tweaked Hawks unit.
"If the unit itself is corrupt, how can it be expected to fight corruption?"
Statement issued by FTI Consulting on behalf of Hugh Glenister, November 29 2012
Source: Politicsweb
Uganda: Human Rights Defenders and Land Ownership
Northern Uganda is rising from the debris of a long conflict involving the rebel Lord's Resistance Movement. Many challenges remain especially on land issues. But human rights defenders are trying to help.
Lira Town, situated some 350km from Kampala to the north, is an area deeply affected by the Lord's Resistance Army conflict that wrecked Uganda from 1986 until the Juba talks (2006-2008), marking the beginning of the end for Joseph Kony and the rebels in Uganda.
It was the start of a peace process that ultimately led to the creation of South Sudan in 2011 and also marked the beginning of a decline of the LRA in northern Uganda, forcing them out of the bases they had been occupying in southern Sudan, last seen in the Eastern Congo or the Central African Republic.
These days there is a lot less urgency for those internally displaced who had fled rural villages to seek sanctuary in towns from the violence. Lira town now thrives with bustle of commercial trade in its compact town centre.
The most talked about issues I encountered focussed on one central problem that's on the rise right across Uganda: land ownership.
In discussion with the Deputy District Police Commander and the District Office of Prosecutions it emerged that land ownership or land disputes were behind nearly all of the criminal cases and violations of human rights in Lira district.
This may not come as a surprise when Uganda's population has risen tenfold to since independence in 1962. The issue has been exacerbated by the discovery of oil reserves in Hoima District and new cases of forced evictions and land grabbing are reported on an almost daily basis.
The throngs of men and women I witnessed seated outside the Lira courts pending hearings on land issues, particularly over ownership by people displaced during conflict, all seek to reclaim land they previously worked on.
The court system is simply unable to cope with the demands on it. The Officer of Prosecutions bemoaned the lack of human resources at his disposal.
The state is bound to provide lawyers to represent the deceased in any court case but its failure to pay lawyers for their work has led to many refusing to take up these positions, bringing the justice process to a grinding halt.
Faced with a flailing system, a number of individuals seek alternative solutions which are not always legal.
Mob justice - where citizens take the law into their own hands - is on the rise in Uganda and it may increase as land disputes keep happening and formal crime and punishment structures fail to address them.
Just as mob justice can never be a workable alternative, removing rights, such as the right to a fair trial in the process, the same could be said of a failing judicial system.
Lobbying for its reform and greater accountability from the authorities is where human rights defenders (HRDs) are concentrating their efforts in looking to overcome this huge challenge.
WHAT IS A HUMAN RIGHTS DEFENDER? AND WHY DO THEY MATTER?
A Human Rights Defender (HRD) was formalised as a concept at the international level by the 1998 UN Declaration on Human Rights Defenders, which guarantees every individual's right to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels.
In practice HRDs extend from individuals, such as lawyers and social workers, to organisations that work on issues relating to human rights and even to instruments of the state.
In fact the chief HRDs in Ugandan society, at least in theory, are the police, prison service and judiciary, as they are mandated by the Constitution to protect and promote human rights. However they are often involved in abuses in the Ugandan case.
The key message for governments is that HRDs are legitimate actors, working in the interests of the state to promote and protect fundamental freedoms that all citizens should be entitled to.
The state should recognise this and create an enabling environment for their work, which includes protection where required and facilitation where it is mandated to so
The case studies that follow are based on interviews with men, women and persons with disabilities that I encountered, outlining just some of the challenges and success stories of HRDs in Lira.
CASE STUDY 1: LIVING WITH HIV AND AIDS
Semmy Apili, sharing her experience during a training workshop, said she won a court case and regained her land because of the will her late husband was able to write.
Even on issues such as HIV and AIDS the issue of land could not be avoided. Martin Ongune, Project Coordinator at the Lira Development Network for People Living with HIV Aids (LIDFOPHAN), remarked upon the need for support in 'will writing' in order to support the families of victims:
'There is a need here for legal advisers to assist the poorer members of society in writing wills. It will ensure a degree of security for families who may lose relatives because of HIV and AIDS.
We would also welcome training that would empower members of the community with these skills and enable a more sustainable solution.'
The organisation has, through its own networks, over 8,000 members and it works not only to provide support to victims of HIV and AIDS but also to the families of those victims. Ensuring that livelihoods can be guaranteed is an important part of this support process and while there is a need, the challenge of bringing about that change remains.
CASE STUDY 2: PERSONS WITH DISABILITIES
Uganda suffered both physical and mental trauma; issues that still need to be addressed. In meeting with Joseph Kasungo at the Freidis Rehabilitation and Disability Centre I encountered anger at the lack of support that directly targeted the issue of disability.
He remained frustrated that it continues to be something of a side issue, incorporated into other projects or initiatives but not given the priority that it should be. Social stigma remains attached to disability in Uganda and mental health issues are seen as human weakness rather than health issues that require treatment.
The Centre has the facilities to tackle these issues, with a fully equipped clinic and on-site psychologist, but its major challenge is reintegrating people back into society as equals.
CASE STUDY 3: EMPOWERING WOMEN
Diana Oroma of Women's Peace Initiative (WPI) passionately outlined the challenges facing women in Lira District but suggested that progress was being made.
Her organisation has played a key role in encouraging women to seek medical attention to be treated for victims of sexual abuse. In 2010 over 600 women were treated by a WPI initiative. Fifty of these women had such serious afflictions they required surgery.
There is no shortage of challenges facing the women who do come forward for treatment:
The stigma attached to being sexually violated or raped can often led to exclusion or people being ostracised from the community.
Cultural issues with regards to relationships between men and women are problematic. A lack of education about female sexual health, inclusive of men, means that cultural norms of women being the bearer of children remain strong and this can impact on recovery after treatment.
Women Peace Clubs have been set up by WPI in an effort to change the attitudes of the community. They have been successful in utilising women who have been treated talk to come and tell other women about their positive experiences.
Efforts have also been made to engage men in the education process. Progress, however, is slow as Diana outlined an example of a man coming to a workshop and agreeing that he would show more respect for his wife's sexual health. Yet a week later WPI learned that the woman had been heavily beaten by her husband for bringing shame upon him and their family.
This kind of example shows that changing (and challenging!) attitudes will be a gradual task, but initiatives being run by WPCs are the kind of projects best suited to bring about that change.
Where to from here for human rights defenders: some reflections on the local, national and international dimensions
At the local government level in Lira officials are working with civil society groups (such as the Lira NGO Forum) to enhance and protect human rights. Disputes over land and an ill-equipped judiciary for dealing with complaints being brought to its door, however, are challenges facing all Ugandan HRDs rather than just in Lira.
While some freedoms are being afforded to Ugandans there are still restrictions being placed on journalists in carrying out their work, women are still often regarded as second class citizens and rights for lesbian, gay, bisexual and transgender Ugandans are almost non-existence.
In recent weeks a number of members of parliament have come out in support of the retrogressive Anti-Homosexuality Bill, touted by the Speaker of Parliament as a "Christmas gift" to Ugandans, which would make engaging in homosexual activities punishable by death. This is incredibly worrying for human rights standards and protections in Uganda.
Parliamentarians are voting on this bill in the coming days before 15th December, despite that Uganda holds a seat on the UN Human Rights Council until the end of 2013.
In her remarks addressing the UN Assembly in New York, the UN Special Rapporteur on Human Rights, Margaret Sekaggya, emphasized the constraints faced by defenders of lesbian, gay, bisexual and transgender rights due to criminalization of same-sex relations in over 75 countries worldwide, as well as recent legislative moves to purportedly curb promotion of homosexuality.
Although the recent decision of Malawi to suspend its anti-gay legislation is a small ray of hope it should be recognised and applauded as a step forward. www.developmenteducation.ie will be following these stories more closely in the months ahead.
Lastly, the creation of a Human Right Committee, made up of members of the Uganda parliament and tasked with the monitoring and evaluation of the government's compliance with human rights standards and protections is a very positive step. In theory, this should support the promotion and protection of those working to protect and stimulate human rights at the community level too.
Overall then, this is a refreshing turn for Ugandans struggling for a better life and looking to hold their politicians and public officials to a higher standard.
Throughout my field visits in Lira and elsewhere I have found the enthusiasm and commitment to such values remains undiminished. There are, of course, many challenges left but changes in attitudes at the community level are being observed.
This is welcome as the region gradually turns it focus away from a past ravaged by conflict to one embracing social and economic growth and development.
- Jamie Hitchen currently lives and works in Kampala, Uganda. Having obtained a Masters in African Politics from the School of Oriental and African Studies (SOAS) he now works for the Human Rights Centre Uganda (www.hrcug.org). This article was first published by Irish global education website www.developmentEducation.ie
Source: All Africa
Lira Town, situated some 350km from Kampala to the north, is an area deeply affected by the Lord's Resistance Army conflict that wrecked Uganda from 1986 until the Juba talks (2006-2008), marking the beginning of the end for Joseph Kony and the rebels in Uganda.
It was the start of a peace process that ultimately led to the creation of South Sudan in 2011 and also marked the beginning of a decline of the LRA in northern Uganda, forcing them out of the bases they had been occupying in southern Sudan, last seen in the Eastern Congo or the Central African Republic.
These days there is a lot less urgency for those internally displaced who had fled rural villages to seek sanctuary in towns from the violence. Lira town now thrives with bustle of commercial trade in its compact town centre.
The most talked about issues I encountered focussed on one central problem that's on the rise right across Uganda: land ownership.
In discussion with the Deputy District Police Commander and the District Office of Prosecutions it emerged that land ownership or land disputes were behind nearly all of the criminal cases and violations of human rights in Lira district.
This may not come as a surprise when Uganda's population has risen tenfold to since independence in 1962. The issue has been exacerbated by the discovery of oil reserves in Hoima District and new cases of forced evictions and land grabbing are reported on an almost daily basis.
The throngs of men and women I witnessed seated outside the Lira courts pending hearings on land issues, particularly over ownership by people displaced during conflict, all seek to reclaim land they previously worked on.
The court system is simply unable to cope with the demands on it. The Officer of Prosecutions bemoaned the lack of human resources at his disposal.
The state is bound to provide lawyers to represent the deceased in any court case but its failure to pay lawyers for their work has led to many refusing to take up these positions, bringing the justice process to a grinding halt.
Faced with a flailing system, a number of individuals seek alternative solutions which are not always legal.
Mob justice - where citizens take the law into their own hands - is on the rise in Uganda and it may increase as land disputes keep happening and formal crime and punishment structures fail to address them.
Just as mob justice can never be a workable alternative, removing rights, such as the right to a fair trial in the process, the same could be said of a failing judicial system.
Lobbying for its reform and greater accountability from the authorities is where human rights defenders (HRDs) are concentrating their efforts in looking to overcome this huge challenge.
WHAT IS A HUMAN RIGHTS DEFENDER? AND WHY DO THEY MATTER?
A Human Rights Defender (HRD) was formalised as a concept at the international level by the 1998 UN Declaration on Human Rights Defenders, which guarantees every individual's right to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels.
In practice HRDs extend from individuals, such as lawyers and social workers, to organisations that work on issues relating to human rights and even to instruments of the state.
In fact the chief HRDs in Ugandan society, at least in theory, are the police, prison service and judiciary, as they are mandated by the Constitution to protect and promote human rights. However they are often involved in abuses in the Ugandan case.
The key message for governments is that HRDs are legitimate actors, working in the interests of the state to promote and protect fundamental freedoms that all citizens should be entitled to.
The state should recognise this and create an enabling environment for their work, which includes protection where required and facilitation where it is mandated to so
The case studies that follow are based on interviews with men, women and persons with disabilities that I encountered, outlining just some of the challenges and success stories of HRDs in Lira.
CASE STUDY 1: LIVING WITH HIV AND AIDS
Semmy Apili, sharing her experience during a training workshop, said she won a court case and regained her land because of the will her late husband was able to write.
Even on issues such as HIV and AIDS the issue of land could not be avoided. Martin Ongune, Project Coordinator at the Lira Development Network for People Living with HIV Aids (LIDFOPHAN), remarked upon the need for support in 'will writing' in order to support the families of victims:
'There is a need here for legal advisers to assist the poorer members of society in writing wills. It will ensure a degree of security for families who may lose relatives because of HIV and AIDS.
We would also welcome training that would empower members of the community with these skills and enable a more sustainable solution.'
The organisation has, through its own networks, over 8,000 members and it works not only to provide support to victims of HIV and AIDS but also to the families of those victims. Ensuring that livelihoods can be guaranteed is an important part of this support process and while there is a need, the challenge of bringing about that change remains.
CASE STUDY 2: PERSONS WITH DISABILITIES
Uganda suffered both physical and mental trauma; issues that still need to be addressed. In meeting with Joseph Kasungo at the Freidis Rehabilitation and Disability Centre I encountered anger at the lack of support that directly targeted the issue of disability.
He remained frustrated that it continues to be something of a side issue, incorporated into other projects or initiatives but not given the priority that it should be. Social stigma remains attached to disability in Uganda and mental health issues are seen as human weakness rather than health issues that require treatment.
The Centre has the facilities to tackle these issues, with a fully equipped clinic and on-site psychologist, but its major challenge is reintegrating people back into society as equals.
CASE STUDY 3: EMPOWERING WOMEN
Diana Oroma of Women's Peace Initiative (WPI) passionately outlined the challenges facing women in Lira District but suggested that progress was being made.
Her organisation has played a key role in encouraging women to seek medical attention to be treated for victims of sexual abuse. In 2010 over 600 women were treated by a WPI initiative. Fifty of these women had such serious afflictions they required surgery.
There is no shortage of challenges facing the women who do come forward for treatment:
The stigma attached to being sexually violated or raped can often led to exclusion or people being ostracised from the community.
Cultural issues with regards to relationships between men and women are problematic. A lack of education about female sexual health, inclusive of men, means that cultural norms of women being the bearer of children remain strong and this can impact on recovery after treatment.
Women Peace Clubs have been set up by WPI in an effort to change the attitudes of the community. They have been successful in utilising women who have been treated talk to come and tell other women about their positive experiences.
Efforts have also been made to engage men in the education process. Progress, however, is slow as Diana outlined an example of a man coming to a workshop and agreeing that he would show more respect for his wife's sexual health. Yet a week later WPI learned that the woman had been heavily beaten by her husband for bringing shame upon him and their family.
This kind of example shows that changing (and challenging!) attitudes will be a gradual task, but initiatives being run by WPCs are the kind of projects best suited to bring about that change.
Where to from here for human rights defenders: some reflections on the local, national and international dimensions
At the local government level in Lira officials are working with civil society groups (such as the Lira NGO Forum) to enhance and protect human rights. Disputes over land and an ill-equipped judiciary for dealing with complaints being brought to its door, however, are challenges facing all Ugandan HRDs rather than just in Lira.
While some freedoms are being afforded to Ugandans there are still restrictions being placed on journalists in carrying out their work, women are still often regarded as second class citizens and rights for lesbian, gay, bisexual and transgender Ugandans are almost non-existence.
In recent weeks a number of members of parliament have come out in support of the retrogressive Anti-Homosexuality Bill, touted by the Speaker of Parliament as a "Christmas gift" to Ugandans, which would make engaging in homosexual activities punishable by death. This is incredibly worrying for human rights standards and protections in Uganda.
Parliamentarians are voting on this bill in the coming days before 15th December, despite that Uganda holds a seat on the UN Human Rights Council until the end of 2013.
In her remarks addressing the UN Assembly in New York, the UN Special Rapporteur on Human Rights, Margaret Sekaggya, emphasized the constraints faced by defenders of lesbian, gay, bisexual and transgender rights due to criminalization of same-sex relations in over 75 countries worldwide, as well as recent legislative moves to purportedly curb promotion of homosexuality.
Although the recent decision of Malawi to suspend its anti-gay legislation is a small ray of hope it should be recognised and applauded as a step forward. www.developmenteducation.ie will be following these stories more closely in the months ahead.
Lastly, the creation of a Human Right Committee, made up of members of the Uganda parliament and tasked with the monitoring and evaluation of the government's compliance with human rights standards and protections is a very positive step. In theory, this should support the promotion and protection of those working to protect and stimulate human rights at the community level too.
Overall then, this is a refreshing turn for Ugandans struggling for a better life and looking to hold their politicians and public officials to a higher standard.
Throughout my field visits in Lira and elsewhere I have found the enthusiasm and commitment to such values remains undiminished. There are, of course, many challenges left but changes in attitudes at the community level are being observed.
This is welcome as the region gradually turns it focus away from a past ravaged by conflict to one embracing social and economic growth and development.
- Jamie Hitchen currently lives and works in Kampala, Uganda. Having obtained a Masters in African Politics from the School of Oriental and African Studies (SOAS) he now works for the Human Rights Centre Uganda (www.hrcug.org). This article was first published by Irish global education website www.developmentEducation.ie
Source: All Africa
Tuesday, November 20, 2012
Where is the grace? Where is the compassion?
I am haunted by this picture. It is of a woman unsuccessfully trying to stop a bulldozer from demolishing her home in Lenasia. No one seemed to have thought of asking the woman her name. The newspapers said she was “unidentified”: Like so many other black woman in South Africa she is literally treated as being without an identity, without a history, without a personality. Why did the Gauteng government want to demolish this woman’s home and why did a court grant an order allowing the demolition?
The bulldozing of people’s homes is an emotionally laden issue in South Africa. Anyone with a passing knowledge of the apartheid past must recall the horrible images of bulldozers wrecking people’s homes in Fietas, Sophiatown, District Six and in many other parts of the country. It therefore came as a shock to hear that our government sought, and a South African court ordered, the demolition of houses in Lenasia.
The Gauteng local government and housing department began destroying the houses two weeks ago because the land they were built on was intended for government housing, and had been sold illegally. About 50 houses had been destroyed and another 113 were in line to be demolished before the South African Human Rights Commission went to court to try and stop this. The plots of land were apparently sold fraudulently for amounts ranging from R2500 to R95 000. The buyers were given forged deeds of sale with the department’s logo.
On 29 September last year, the South Gauteng High Court ordered the relevant residence of Lenasia to vacate their homes and to demolish the homes or structures erected on the property. In the event of failure to remove or demolish within the time period given, the City was granted the right to demolish the homes. The Order did not require the City to provide those evicted with alternative accommodation.
Given the Constitutional Court’s jurisprudence on forced evictions and the provisions of the Prevention of Illegal Evictions from and Unlawful Occupation of Land (PIE) Act, it is difficult to agree with the court for granting this court order – which in any case the Gauteng Government should never have asked for. I guess if one does not live at Nkandla, one’s home is not seen as either private or sacred by our government.
In terms of section 26(3) of the Constitution, when considering whether to order the forced eviction of unlawful occupiers from their homes, a court must take into account all relevant factors. As the Constitutional Court stated in Port Elizabeth Municipality v Various Occupiers, our Constitution “acknowledges that a home is more than just a shelter from the elements”. A home “is a zone of personal intimacy and family security” and the forced removal from a home “is a shock for any family”. It does not make any difference whether that home is lawfully or unlawfully occupied.
The PIE Act confirms that a court must take into account all the relevant circumstances under which people occupied the land. In the PE Municipality case justice Albie Sachs warned that a court should be slow to order the eviction of its citizens from state owned land as “the state generally has further land to meet its obligations”. The degree of emergency or desperation of people, who have sought a spot on which to erect their shelters, would always have to be considered. And persons “occupying land with at least a plausible belief that they have permission to be there” can be looked at with far greater sympathy than those who deliberately invaded land with a view to disrupting the organised housing programme and placing themselves at the front of the queue.
It is settled law that a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. In City of Johannesburg v Blue Moonlight Properties the Constitutional Court found – in slightly different circumstances than the present – that the City’s housing policy was unconstitutional to the extent that it excluded some people evicted from privately owned property from consideration for temporary accommodation. It found that such an exclusion was unreasonable. This does not mean that the City would always have to provide alternative accommodation, but if it failed to do so in circumstances where people would be left homeless the eviction would almost never be granted.
In the end a court must consider all relevant factors but should not do so in a mechanical way or in a way that gave too much weight to the bureaucratic needs and plans of the Municipality and too little weight to the needs of those who might be affected by the eviction. In PE Municipality Sachs explained the approach as follows:
In this case, the residents were defrauded. They built structures on government owned land believing that they had bought the plots. They built solid structures, using their own money, believing they had a right to do so. They did not do so because they wanted to jump the queue for land or housing. Those who committed the fraud are being prosecuted, but it is unclear why those who were duped must be punished for their crime.
It is unclear what constitutionally permitted purpose is being served by the eviction of such innocent people from their homes. How does the bulldozing of their homes demonstrates the Gauteng government’s commitment to a caring society, one which is animated by the principle of Ubuntu, which holds that we are all demeaned if some among us are treated without grace and compassion – all in order to pursue a coldhearted and bureaucratic housing plan without any consideration of the feelings of those affected?
I wonder if the Gauteng Premier and the judicial officer who granted the eviction and demolition order have had time to pause for a moment to consider the feelings of the unnamed woman in the picture. Have they asked themselves what must have gone through her mind as she desperately threw her body in the path of that bulldozer? Do they wonder about all the hopes and dreams she had about her new home and how these have now been shattered by the greedy fraudsters who sold these plots to innocent citizens, abetted by the Gauteng Government and by the court who ordered the eviction?
Where is the grace? Where is the compassion? Where is the common decency? Or are these feelings only reserved for one “special” person, a person who might bleed and sleep and eat and have sex and defecate like the rest of us, but who somehow is viewed as more important and more worthy of concern and respect than the unnamed woman in Lenasia who planted her body in front of that bulldozer?
Why is it that we are told (in expensive adverts in the Sunday papers) not to care that the homes of some citizens are bulldozed, while we are also told that it is none of our business that more than R250 million of public funds are being used to upgrade the private homestead of our king, our leader, our father in chief – all while some of our people who contributed to the upgrade of the President’s house do not have a roof over their heads and will be forced to sleep under a bush or in a ditch tonight and for many, many, more nights to come?
Source: Constitutionally Speaking
The bulldozing of people’s homes is an emotionally laden issue in South Africa. Anyone with a passing knowledge of the apartheid past must recall the horrible images of bulldozers wrecking people’s homes in Fietas, Sophiatown, District Six and in many other parts of the country. It therefore came as a shock to hear that our government sought, and a South African court ordered, the demolition of houses in Lenasia.
The Gauteng local government and housing department began destroying the houses two weeks ago because the land they were built on was intended for government housing, and had been sold illegally. About 50 houses had been destroyed and another 113 were in line to be demolished before the South African Human Rights Commission went to court to try and stop this. The plots of land were apparently sold fraudulently for amounts ranging from R2500 to R95 000. The buyers were given forged deeds of sale with the department’s logo.
On 29 September last year, the South Gauteng High Court ordered the relevant residence of Lenasia to vacate their homes and to demolish the homes or structures erected on the property. In the event of failure to remove or demolish within the time period given, the City was granted the right to demolish the homes. The Order did not require the City to provide those evicted with alternative accommodation.
Given the Constitutional Court’s jurisprudence on forced evictions and the provisions of the Prevention of Illegal Evictions from and Unlawful Occupation of Land (PIE) Act, it is difficult to agree with the court for granting this court order – which in any case the Gauteng Government should never have asked for. I guess if one does not live at Nkandla, one’s home is not seen as either private or sacred by our government.
In terms of section 26(3) of the Constitution, when considering whether to order the forced eviction of unlawful occupiers from their homes, a court must take into account all relevant factors. As the Constitutional Court stated in Port Elizabeth Municipality v Various Occupiers, our Constitution “acknowledges that a home is more than just a shelter from the elements”. A home “is a zone of personal intimacy and family security” and the forced removal from a home “is a shock for any family”. It does not make any difference whether that home is lawfully or unlawfully occupied.
It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.
The PIE Act confirms that a court must take into account all the relevant circumstances under which people occupied the land. In the PE Municipality case justice Albie Sachs warned that a court should be slow to order the eviction of its citizens from state owned land as “the state generally has further land to meet its obligations”. The degree of emergency or desperation of people, who have sought a spot on which to erect their shelters, would always have to be considered. And persons “occupying land with at least a plausible belief that they have permission to be there” can be looked at with far greater sympathy than those who deliberately invaded land with a view to disrupting the organised housing programme and placing themselves at the front of the queue.
It is settled law that a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. In City of Johannesburg v Blue Moonlight Properties the Constitutional Court found – in slightly different circumstances than the present – that the City’s housing policy was unconstitutional to the extent that it excluded some people evicted from privately owned property from consideration for temporary accommodation. It found that such an exclusion was unreasonable. This does not mean that the City would always have to provide alternative accommodation, but if it failed to do so in circumstances where people would be left homeless the eviction would almost never be granted.
In the end a court must consider all relevant factors but should not do so in a mechanical way or in a way that gave too much weight to the bureaucratic needs and plans of the Municipality and too little weight to the needs of those who might be affected by the eviction. In PE Municipality Sachs explained the approach as follows:
The Constitution and PIE require that in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result. Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.
In this case, the residents were defrauded. They built structures on government owned land believing that they had bought the plots. They built solid structures, using their own money, believing they had a right to do so. They did not do so because they wanted to jump the queue for land or housing. Those who committed the fraud are being prosecuted, but it is unclear why those who were duped must be punished for their crime.
It is unclear what constitutionally permitted purpose is being served by the eviction of such innocent people from their homes. How does the bulldozing of their homes demonstrates the Gauteng government’s commitment to a caring society, one which is animated by the principle of Ubuntu, which holds that we are all demeaned if some among us are treated without grace and compassion – all in order to pursue a coldhearted and bureaucratic housing plan without any consideration of the feelings of those affected?
I wonder if the Gauteng Premier and the judicial officer who granted the eviction and demolition order have had time to pause for a moment to consider the feelings of the unnamed woman in the picture. Have they asked themselves what must have gone through her mind as she desperately threw her body in the path of that bulldozer? Do they wonder about all the hopes and dreams she had about her new home and how these have now been shattered by the greedy fraudsters who sold these plots to innocent citizens, abetted by the Gauteng Government and by the court who ordered the eviction?
Where is the grace? Where is the compassion? Where is the common decency? Or are these feelings only reserved for one “special” person, a person who might bleed and sleep and eat and have sex and defecate like the rest of us, but who somehow is viewed as more important and more worthy of concern and respect than the unnamed woman in Lenasia who planted her body in front of that bulldozer?
Why is it that we are told (in expensive adverts in the Sunday papers) not to care that the homes of some citizens are bulldozed, while we are also told that it is none of our business that more than R250 million of public funds are being used to upgrade the private homestead of our king, our leader, our father in chief – all while some of our people who contributed to the upgrade of the President’s house do not have a roof over their heads and will be forced to sleep under a bush or in a ditch tonight and for many, many, more nights to come?
Source: Constitutionally Speaking
Friday, November 16, 2012
Rainbow SA cannot work if its people don’t trust its political system
PONDERING the state of South African politics, many believe that a fresh political alternative is what is needed to invigorate our democracy and put the country back on a sound footing. This school of thought believes the missing ingredient is the quality of the men and women leading our political institutions. They may be right, but is it enough? Even in the context of African National Congress politics there is an obsession with re-educating members in the old traditions of the organisation. This is admirable and may help, but also falls hopelessly short of conceiving what SA will need to grow into a nation leading the world in years to come.
We have a state that battles to complete basic tasks, political elites that often play a deeply polarising role and different sectors of society that are at war with one another. While there is much talk about social dialogue, it largely remains confined to dealing with the trivia of policy. There is no central, uniting idea that makes a powerful emotional connection with citizens from across the social and political spectrum while being sufficiently realistic to translate into tangible actions.
But why are we in such a state of listlessness?
Among several reasons, the most central is the manner in which post-1994 South African society has been organised.
We are bound together by a constitution whose most critical provisions are largely rejected or misunderstood by many South Africans. The death penalty would be likely to be reinstated in a referendum and the state would be given the power to confiscate land without compensation and give it to black people. There are also many who see homosexuality as an abomination and would not protest too much if gay South Africans were afforded less rights than those of heterosexual location. There are also those who wish the executive or legislature could overrule the judiciary.
There is a professed belief in fighting all forms of discrimination such as racism, sexism and others. We do badly at fulfilling this promise too — with even those in the corridors of power and influence displaying a particularly hypocritical streak.
Depending on the audience they address, or whether or not they are in the company of their ilk, they will verbalise vile racism, sexism and homophobia.
With such attitudes towards the constitution, there is little or nothing that binds the country together into a coherent nation.
As economic and social circumstances become more challenging for many South Africans, polarisation is common in particular along racial and class lines.
It is not unusual for powerful political entrepreneurs to launch self-serving, acerbic attacks on the black middle class for daring to comment unfavourably about the ruling elite. It is also common for the same politicians to launch racially charged attacks on so-called white capital while accepting back-handers in the form of lucrative business opportunities from the same purported enemy.
They use their proximity to power in the ruling party and the state as a lever to gain access to these opportunities, while fooling the public into believing they are in a war on behalf of the poorer classes.
In short, the convergence point of political, business and social interest of the elite is nothing more than a marketplace in which influences get traded for personal gain under the guise of social consensus. This situation is unsustainable and needs to change if this country is to achieve the level of the cohesion required to make great strides in social, scientific and economic development.
The national philosophical endeavour the country should strive for is a clear set of ideas which sets out what the country and its people should aspire to be, the institutions needed to support these ideas and what ethos such institutions should follow.
These should form the basis of a strong national philosophical centre to which most sectors in society feel drawn.
As a result, the areas of extreme disagreement between different social sectors would be few, and so would those who take extreme positions on critical issues.
Such a broad consensus greatly reduces attempts by different sectors and actors to delegitimise critical institutions that are meant to weld this country together.
Such behaviour is destructive and sends a worrying message that institutions of state are to be respected only when they agree with certain political or ideological interests.
SA’s philosophical foundation should also go as far as trying to describe the archetypal South African which young people should aspire to being. It must inculcate strong open democratic values, solid ethical foundations, individual care for the other, and an attitude to work and success that results in a powerful national competitive spirit with no patience for laziness, mediocrity and the prevalent culture of entitlement.
To succeed, such an endeavour needs a strong political figure and centre whose charisma and gravitas appeal across class and race, and whose personal ethos resonates with the majority of South Africans.
They must have the ability and confidence to surround themselves with men and women of significant intellectual depth so they can successfully articulate the vision and transform it into practical ideas citizens find easy to understand and support.
We have to pursue this because a society such as ours, which is held together by a constitution we hardly understand, often disagree with and whose institutions are being destroyed by the very people meant to protect and strengthen them, is untenable.
The grand plans contained in the National Development Plan will not be realised when different sectors continue to work to destroy each other and there is no central, uniting idea that helps South Africans overcome some of their narrow interests for greater national and social good.
Countries ruled by benign dictatorships have managed to walk this path with a degree of success.
SA is a democracy in which people cannot be forced to participate in things they do not wish to support, in particular where the poverty of the ideas behind them is so apparent.
That is why this must be premised on winning the trust and confidence of the population, and on the production of evidence that what is being espoused is the right thing — and that it will succeed.
This confidence can arise only from trust in the political system and its actors, which is glaringly absent right now.
Many have warned that SA is sitting on a powder keg. Increasingly, people are retreating to racial and ideological laagers whose premise is making others the problem. There is much talk about “change”, but this means vastly different things to different people. Even when some political change materialises, it will be as hotly contested as the status quo, absorbing and dissipating energy that should otherwise go to a focused, nationbuilding effort grounded in ideas and strong, respected institutions.
The first step for SA is to recognise that the status quo is a transitional arrangement whose destination is unclear and needs urgent definition.
To reach its ultimate goals, it will have to dispense with a lot of what is now familiar and make a fresh start. That is as hard and long a journey as it gets, but not to start would be a tragedy in the making.
Opinion: Songezo Zibi: Midrand Group.
Source: Business Day
We have a state that battles to complete basic tasks, political elites that often play a deeply polarising role and different sectors of society that are at war with one another. While there is much talk about social dialogue, it largely remains confined to dealing with the trivia of policy. There is no central, uniting idea that makes a powerful emotional connection with citizens from across the social and political spectrum while being sufficiently realistic to translate into tangible actions.
But why are we in such a state of listlessness?
Among several reasons, the most central is the manner in which post-1994 South African society has been organised.
We are bound together by a constitution whose most critical provisions are largely rejected or misunderstood by many South Africans. The death penalty would be likely to be reinstated in a referendum and the state would be given the power to confiscate land without compensation and give it to black people. There are also many who see homosexuality as an abomination and would not protest too much if gay South Africans were afforded less rights than those of heterosexual location. There are also those who wish the executive or legislature could overrule the judiciary.
There is a professed belief in fighting all forms of discrimination such as racism, sexism and others. We do badly at fulfilling this promise too — with even those in the corridors of power and influence displaying a particularly hypocritical streak.
Depending on the audience they address, or whether or not they are in the company of their ilk, they will verbalise vile racism, sexism and homophobia.
With such attitudes towards the constitution, there is little or nothing that binds the country together into a coherent nation.
As economic and social circumstances become more challenging for many South Africans, polarisation is common in particular along racial and class lines.
It is not unusual for powerful political entrepreneurs to launch self-serving, acerbic attacks on the black middle class for daring to comment unfavourably about the ruling elite. It is also common for the same politicians to launch racially charged attacks on so-called white capital while accepting back-handers in the form of lucrative business opportunities from the same purported enemy.
They use their proximity to power in the ruling party and the state as a lever to gain access to these opportunities, while fooling the public into believing they are in a war on behalf of the poorer classes.
In short, the convergence point of political, business and social interest of the elite is nothing more than a marketplace in which influences get traded for personal gain under the guise of social consensus. This situation is unsustainable and needs to change if this country is to achieve the level of the cohesion required to make great strides in social, scientific and economic development.
The national philosophical endeavour the country should strive for is a clear set of ideas which sets out what the country and its people should aspire to be, the institutions needed to support these ideas and what ethos such institutions should follow.
These should form the basis of a strong national philosophical centre to which most sectors in society feel drawn.
As a result, the areas of extreme disagreement between different social sectors would be few, and so would those who take extreme positions on critical issues.
Such a broad consensus greatly reduces attempts by different sectors and actors to delegitimise critical institutions that are meant to weld this country together.
Such behaviour is destructive and sends a worrying message that institutions of state are to be respected only when they agree with certain political or ideological interests.
SA’s philosophical foundation should also go as far as trying to describe the archetypal South African which young people should aspire to being. It must inculcate strong open democratic values, solid ethical foundations, individual care for the other, and an attitude to work and success that results in a powerful national competitive spirit with no patience for laziness, mediocrity and the prevalent culture of entitlement.
To succeed, such an endeavour needs a strong political figure and centre whose charisma and gravitas appeal across class and race, and whose personal ethos resonates with the majority of South Africans.
They must have the ability and confidence to surround themselves with men and women of significant intellectual depth so they can successfully articulate the vision and transform it into practical ideas citizens find easy to understand and support.
We have to pursue this because a society such as ours, which is held together by a constitution we hardly understand, often disagree with and whose institutions are being destroyed by the very people meant to protect and strengthen them, is untenable.
The grand plans contained in the National Development Plan will not be realised when different sectors continue to work to destroy each other and there is no central, uniting idea that helps South Africans overcome some of their narrow interests for greater national and social good.
Countries ruled by benign dictatorships have managed to walk this path with a degree of success.
SA is a democracy in which people cannot be forced to participate in things they do not wish to support, in particular where the poverty of the ideas behind them is so apparent.
That is why this must be premised on winning the trust and confidence of the population, and on the production of evidence that what is being espoused is the right thing — and that it will succeed.
This confidence can arise only from trust in the political system and its actors, which is glaringly absent right now.
Many have warned that SA is sitting on a powder keg. Increasingly, people are retreating to racial and ideological laagers whose premise is making others the problem. There is much talk about “change”, but this means vastly different things to different people. Even when some political change materialises, it will be as hotly contested as the status quo, absorbing and dissipating energy that should otherwise go to a focused, nationbuilding effort grounded in ideas and strong, respected institutions.
The first step for SA is to recognise that the status quo is a transitional arrangement whose destination is unclear and needs urgent definition.
To reach its ultimate goals, it will have to dispense with a lot of what is now familiar and make a fresh start. That is as hard and long a journey as it gets, but not to start would be a tragedy in the making.
Opinion: Songezo Zibi: Midrand Group.
Source: Business Day
Tuesday, September 25, 2012
Sharp divisions on the Constitutional Court about the right to strike
In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.
Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.
In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.
Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.
For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.
As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:
It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.
This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:
The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.
In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:
The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”
The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.
The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.
The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.
Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.
Source: Constitutionally Speaking
Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.
In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.
Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.
For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.
As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:
The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.
It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.
This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:
to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.
The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.
In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:
if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?
The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”
The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.
The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.
The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.
Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.
Source: Constitutionally Speaking
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