Constitutional Hill

Xenophobic statement: Is King Zwelithini guilty of hate speech?

Durban is being engulfed in Afrophobic/xenophobic violence after King Goodwill Zwelithini in a speech delivered in March fanned the hatred and envy among some South Africans towards black foreigners living in our country. Is the King guilty of hate speech and if so, what can be done to hold him accountable for his dangerous and reckless utterances?

Many people have forgotten that until the mid-nineteen nineties most liberation leaders viewed King Goodwill Zwelithini as an apartheid stooge aligned with the then National Party government’s Bantustan policy. In the eyes of progressive activists and organisations, his close relationship with Inkatha (which, at the time, was involved in a bloody proxy war with the ANC and the UDF, funded by apartheid securocrats) had turned him into someone widely viewed as a sell-out, as someone opposed to the ANC-led liberation of South Africa.

But in 1994 democracy came to South Africa and the ANC was elected into government. In a tactically brilliant move the national government took over the payment of traditional leaders to prevent the Inkatha controlled provincial government in KwaZulu-Natal from exerting control over the King and other traditional leaders aligned with Inkatha.

(Of course, before 1994 traditional leaders were paid by the apartheid state. After the passing of the Bantu Authorities Act in 1951, they became administrative agents of the apartheid state in the areas designated as “homelands” and many traditional leaders who refused to do the apartheid regime’s dirty work, were ousted by the National Party government.)

With the help of further skilful negotiations – facilitated by President Jacob Zuma – King Zwelithini (perhaps with one eye to his financial well-being?) became “non-aligned” almost overnight. This contributed immensely to the peace process in KwaZulu-Natal and helped to bring the bloody war that was still raging between Inkatha and the ANC in that province to an end.

When you turn the clock forward to March 2015 and listen to King Zwelithini’s speech to the Pongolo community, you still hear the sentiments of the same conservative patriarch who, before 1994, had aligned himself closely with Inkatha, an ethnic-based organisation that vehemently opposed the (then) progressive pan-Africanist policies of the ANC. In his disastrous, ignorant and (it must be said) bigoted speech in March the King said (see video above):

[W]e talk of people [South Africans] who do not want to listen, who do not want to work, who are thieves, child rapists and house breakers…. When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly goods hanging all over our shops, they dirty our streets. We cannot even recognise which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk, I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us to fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries (loud cheers).

The King later lambasted the media for “choosing to deliberately distort what was an innocent outcry against crime and destruction of property”. But if you listen to the audio of his speech, it is clear that the King’s words targeted all foreign nationals (although, one could argue, in the context of his words he was only referring to black foreigner nationals). The King was therefore not truthful when he later claimed his speech was a general outcry “against crime and destruction of property”.

In his speech the King identified what he perceived to be the problem (“lazy” South Africans; foreigners “dirtying our streets”) and proposed a way to “fix” the problem: To have all foreigners (whether legally documented or not, whether law-abiding or not; whether refugees fleeing wars or not) pack their belongings and go back to their own countries.

He further suggested that he was different from other politicians who are democratically elected and rely on “their votes”. Instead he was another kind of politician who did not have to rely on votes (given that he is not elected at all and has no democratic mandate to worry about). He could therefore suggest what our government leaders could not suggest or were too cowardly to suggest, namely that all black foreigners must leave South Africa and must be “assisted” to do so.

Because a traditional leader of the highest rank uttered the words, some might argue that it would be disrespectful of traditional culture and mistaken (especially for a white person like myself) to criticise the King or to suggest that he could be found guilty of hate speech in an Equality Court.

In a constitutional monarchy in which a monarch merely fulfils a symbolic and ceremonial role, this argument might have held water. But when that monarch sees himself as a politician (as King Zwelithini’s speech suggests he does) and makes highly controversial and inflammatory statements, this argument cannot possibly hold.

To argue otherwise would be to elevate King Zwelithini above all criticism and above the law. But this is not Swaziland or Jordan and we do not live in an absolute monarchy. Instead we live in a constitutional democracy in which section 1 of the Constitution enshrines the Rule of Law as one of the founding values of our democracy. This means that everyone – regardless of title or position – must be subject to the same laws and can and should be judged in terms of the same laws applied in the same manner.

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (also known as the Equality Act) prohibits any person (and in legal terms the King ís a person) from publishing, propagating, advocating or communicating words directed against another person based, amongst others, on that other person’s race, sex, gender, sexual orientation or foreign nationality, if those words:

could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; [or] promote or propagate hatred.

Section 12 of the same Act also prohibits any person from disseminating or broadcasting any information “that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.

Does the King’s Afrophobic/xenophobic statement rise to the level of hate speech as defined in the Equality Act? The Act gives effect to the anti-discrimination injunction contained in the Constitution and its meaning must be interpreted in the light of the Constitution and the values enshrined in it. As is often the case with constitutional matters, context is all-important when determining whether speech rises to the level of hate speech (something that right-winger white South Africans often fail to grasp).

What is the context in which the King made his statement? As the Constitutional Court stated in its judgment of Khosa and Others v Minister of Social Development and Others, foreigners (even those who are permanent residents and thus legally entitled to almost all the same rights as citizens) are particularly vulnerable. As Justice Mokgoro stated:

foreign citizens are a minority in all countries, and have little political muscle… [C]itizenship is a personal attribute which is difficult to change… It is also true… that in the South African context [before 1994] individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race.”

The remarks of the King were made to members of the Pongolo community during a “moral regeneration event”. The community members can be heard cheering loudly after the King said that “foreign nationals” should “pack their belongings and go back to their countries”. Moreover the King is an important leader in the region (albeit not one with a democratic mandate) and framed his statement in terms of “necessary truths” which other politicians were too scared to utter. Lastly, the King signalled that he knew the statement was problematic as he prefaces it by stating “please forgive me”.

In terms of the Equality Act it is not necessary to demonstrate that the words of the King in fact led to (or contributed to) the Afrophobic/xenophobic attacks around Durban, attacks which have already resulted in the killing of at least 5 foreigners.

All that must be shown is that a reasonable observer would conclude – looking at the context – that the King’s words could be interpreted to have had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against foreigners.

As I have argued before, section 10 of the Equality Act may be unconstitutional as it casts the net very wide and limits speech that should be constitutionally protected. But until the section is constitutionally challenged, it remains in operation.

Given the context within which the words were uttered it is difficult to avoid the conclusion that the King would be found guilty of hate speech if charged. At the very least a reasonable person may conclude that the words of the King could be construed as having had the intention of being harmful to foreigners in that it may, at the very least, have been intended to force the government to expel all (black) foreigners – whether legally residing in South Africa or not – from the country.

Perhaps progressive activists who still remember the days before 1994 when the King was viewed in many circles as an anti-ANC Bantustan leader, would be bold enough to approach the Equality Court with a view to have the King found guilty of hate speech.

If the relevant judge finds the King guilty of hate speech, said judge may even be tempted to order that the King (as punishment) forfeit all public benefits (including the R50 million contributed to his household) for a period of one or two years. After all, there are some evidence that while the King may not take kindly to criticism from politicians he may well be more willing to change his position if he believes that his financial livelihood was being threatened.

Steve Hofmeyr at the KKNK: why the idea of false equivalences is destructive and wrong

The idea that fairness and justice requires identical treatment of all people in equivalent situations regardless the context or the relative power of the persons or institutions involved, is attractive to many powerful and privileged people with vague and undefined liberal inclinations. The problem is that the idea is destructive, illiberal and deeply unfair.

On Monday morning at the Klein Karoo Nasionale Kunstefees (KKNK) in Oudtshoorn – the “N”, here, is as vital as the “R” in Proes street or the “N” in Pniel – I was involved in a discussion on the right to freedom of expression and on whether the KKNK was correct not to invite racists like Steve Hofmeyr to the festival or to provide them with another platform.

The discussion was both frustrating and revealing. Frustrating because not all the speakers avoided the trap of self-indulgence and narcissism. Revealing because it soon became clear that a sizeable number of audience members were unhappy with the decision of the KKNK management not to provide Hofmeyr and other racists with a platform to perform and to take part in debates.

Now, it might well be that some of the speakers at the debate were yearning for the presence of Steve because he dares to express the racist fears and prejudices that they themselves harbour but are too scared, hypocritical or polite to express (at least in public).

On at least two occasions during my three-day stay at the festival, I encountered the most shocking and brutal forms of racism from festival-goers. I suspect that these bruising encounters (I was confronted by the use of the “K” word and an expressed desire to recreate exclusive “whites” only spaces) framed – for me, at least – the discussion I was involved in. (It was, perhaps, of some consolation that one of the encounters revealed such a catastrophic inability to reason, that it made me wonder whether the person was not in need of strong anti-psychotic medication.)

Because I have lived in South Africa for most of my life and am excruciatingly aware of my own continuing struggle to rid myself of the racism, the sexism, the homophobia and the HIV prejudice that still stalk the land like an incurable disease, I have to admit that I usually assume the worst of the (“white”) strangers that approach me in public places.

I try to wear the cynicism about my own kind as a form of armour to protect myself against the hatred and bigotry that sometimes seems to saturate our society, just like the stench of shit saturates the air around those portable toilets in Khayelitsha.

All “white” South Africans might not always realise it, but at least sometimes the horrid actions or words of fellow “white” people are imputed to all “whites” – just as racist logic have always demanded (and still does) that the inexcusable actions or words of one “black” person be imputed to all “black” people.

When I thus encounter fellow “whites” who exhibit some sensitivity about racism and even a tentative willingness to confront their own prejudice and that of others, I often feel pathetically relieved and grateful.

And it does happen – imperfectly; often haltingly and with confused earnestness; sometimes in a disastrously self-righteous and self-congratulatory manner – but some “white” South Africans do try to grapple with the fact that 350 years of colonial conquest and apartheid have deformed our society and, at best, turned us into strangely disconnected beings.

This willingness of “white” people to try and confront race and racism is often reflected in a certain alertness to the way power determines how a specific instance of the politics of race plays out. This happens when us “white” people – not ever having been on the receiving end of structural racism and thus not forced every single day to live with its horrors – nevertheless attempt to get to a place (a place we probably can’t ever get to), where we will constantly be aware of how black people experience the structural violence of racism that surrounds us and that we are often implicated in.

It reminds me of the attitude towards shit captured in a poem of Antjie Krog. In the poem Krog describes the horror of a visit to a filthy toilet while menstruating, with her handbag clenched between her teeth and her blood-red tampon (folded into bank deposit slips) clutched in her hand.

pis ek rillend verstard effens hurkend/ tussen my bene deur/ in ‘n toiletbak tot in die helfte opgehoop/ met minstens vier verskillende kleure kak/ elke senupunt van weersin orent om mal te word/ as maar net ‘n enkele druppel op teen my sou spat. (I piss shuddering, rigid, half squatting/ between my legs/ into a toilet bowl heaped halfway full/ with at least four different colours of shit/ every nerve-ending of aversion alert to go mad/ if even a single drop would splash against me.)

In the debate at the KKNK I argued that if we want to judge the correctness of the decision by the festival management not to provide Hofmeyr with a platform, we must take into account the disparities in power between different people and institutions and the different effects divergent forms of expression have on different human beings formed by different experiences.

We should not insist that as a matter of principle the right to freedom of expression requires us to treat all forms of speech in exactly the same manner. Neither is it conceptually tenable to believe that all decisions to censure a person for what he or she says should be viewed as equally problematic.

Context matters.

And who wields power and how much power that person or institution wields will have a significant influence on whether we decide whether the limitation placed on freedom of expression is constitutionally and ethically acceptable or not.

The test is one in which different interests must be balanced against each other in complex ways. The more drastic the limit on free expression, the more skeptical we should be of that limitation. In contrast, the more drastic the effect of that expression on the human dignity of others, the easier it would be to justify limiting the expression. The number of permutations is infinite and in each case we have to balance all the interests in a manner that protects both the freedom and the dignity of all people.

The state and its institutions have the power to incarcerate and (as we have seen at Marikana) to kill its citizens. The state consequently has enormous power to silence different, controversial or unpopular forms of expression. The spectre of the abuse of state power to limit expression in order to advance narrow political, sectarian or economic interests is high. I am therefore very hesitant to endorse state censorship of expression. In my view, the power of the state should only be used to limit the most extreme forms of hate speech.

In different contexts different individuals and private institutions do not have the same power to circumscribe forms of expression that are hateful, unpopular, strange or that threaten the commercial interests of individuals or companies.

If a private individual decides not to invite Steve Hofmeyr to dinner because of his racist views or because he sings Die Stem, it would have no effect on Steve or those who think like him or support him.

If a large company refuses to sponsor a festival where Hofmeyr performs, it will have a more drastic (but not absolute) impact on his freedom of expression. Seeing that he would still be able to attend other festivals, organise his own concerts (in Orania and elsewhere) or to take to his Blog or Twitter to express his bigotry and – indirectly – that of his supporters, the limitation on his freedom of expression is not absolute.

But from both a constitutional and ethical point of view, this is not the only factor to consider. The nature of the expression and the nature of its effect on others must also be considered. Now, from an ethical point of view I would contend that it is undesirable for an arts festival catering to a diverse audience to refuse to host artists or to disallow the performance of plays merely because the material may offend certain sections of the public.

This is so, first, because it would make it more difficult for others to see the performances or plays and second, because festival-goers should ideally have a choice to buy tickets and to attend the plays or performances it chooses, based on their tastes and values. But, thirdly and most importantly, the offensive words or ideas do not call into question the basic humanity of anyone, nor does it disrespect the inherent human dignity of anyone.

Performances and plays that offend the sensibilities of some do not undermine the constitutional injunction to respect the inherent human dignity of all. In fact, one could argue that censoring such performances and plays would in fact infringe on the dignity of individuals, because it would treat people as empty vessels with no agency of their own. Individuals are treated as passive bystanders in whose interest decisions should be made in the name of “good taste” or “respectability”, which will be decided on by a few gatekeepers who may well bend to the wishes of large corporate sponsors who might wish to censor any radical critique of corporate greed or complicity in exploitation.

In most cases the specific worldview, political orientation, religious views, other values and cultural assumptions of individuals will mediate their response to the work of an “artist” (I use the latter term generously to include the concerts of Hofmneyr).

A very religious person may be extremely offended by an artist like Jack Parow who swears heavily on stage. A homophobic bigot may find two men or two women kissing on stage disgusting or disturbingly erotic. A progressive person may find a play based on an Ayn Rand novel offensive because of the message of selfishness or the lack of empathy for the vulnerable people reflected in the play.

In fact, at the KKNK several conservative theatregoers walked out of an Afrikaans adaptation of Anton Chekhov’s The Seagull because they were disgusted with the use of swearwords like “naai” and “fok”. (Personally I loved the play, but I believe those who walked out had every right to do so.)

The examples I provide above centres on reasonable disagreement about our values and about how best we can live an ethical or meaningful life. Such reasonable disagreements are the lifeblood of a democracy.

Freedom of expression must be protected exactly to allow this reasonable disagreement to flourish (even in the form of irrational outrage and the expression of disgust). A space in which many ideas (also ideas that are unpopular or that offend the majority) can be expressed, safeguards the freedom of individuals to choose for themselves what to think and feel and how to live their lives. In a democracy it is not desirable that the management of an arts festival (committed to constitutional values) decides on behalf of festival-goers about matters of taste and decorum.

But I contend that the matter is different when we deal with a performer who incessantly makes racist, sexist or homophobic statements and denies the basic humanity of others or where a play uncritically endorses and perpetuates racism, sexism and homophobia.

In an open democracy racism, sexism and homophobia cannot form part of a debate in which reasonable disagreement remains in play.

When we begin to treat the question of whether some people are fully human (and thus deserving of respect and concern regardless of their race, their sex or their sexual orientation) as part of a reasonable debate (and when those who contend that some people do not, hold considerable social and economic power), we legitimise the racism, sexism and homophobia and create an atmosphere in which the denial of the basic humanity of people who are on the constant receiving end of bigotry are legitimised.

We send a signal that it is not shameful, nor a basic attack on the humanity of fellow citizens, to question their right to exist equally and in full dignity with others. We claim the right to treat individuals not as humans but as things over which we may exert godlike authority. We create a space in which it becomes acceptable to deny others the sense of well-being and self-respect that we demand for ourselves. We endorse, either directly, or through omission, the attack on their humanity and in the process we dehumanise ourselves.

When we do not signal that we consider the racist, sexist or homophobic views objectionable, we create the impression in the minds of many festival-goers (and the wider community they belong to) that their hatred and bigotry and their refusal to recognise the full humanity of black South Africans is a reasonable, even noble, response to what they perceive to be the confusing and threatening world they live in.

Forms of racist, sexist and homophobic speech are thus fundamentally different from other forms of expression which we disagree with or that make us uncomfortable.

Because such forms of racist speech potentially have far more devastating effects on the well-being of “black” South Africans (whom “white” South Africans systematically oppressed and attempted to rob of their humanity over 350 years), a decision by the KKNK not to provide a platform for a person lauded in certain circles partly because he proudly engages in racist speech is not only permissible but, I would argue, an ethical  (if not a legal) imperative.

The story of the runaway date

This is a presentation I gave earlier this week at a conference in Stellenbosch on Slow Violence, the idea that unspectacular life circumstances can also have a devastating effect.

I know where this particular narrative must end. More or less. But where should it begin? I am not sure what kind of detail I must include in the narrative and what would better be left in the private domain. How brave am I?

The story could begin with the man, a greying, middle aged constitutional law professor who often comments in the media on current affairs and the law, receiving a message from B on Gaydar, a popular gay male dating and sexual hook-up site. B writes that he is a young lawyer who loves movies and fashion. He suggests an email correspondence with a view to meet “for a date, the old fashioned way”.

The man studies B’s profile picture for clues of his personality. He thinks B is sexy – in a nerdish kind of way. Or maybe he only decides this later, after their first date. In the picture B’s head is clean-shaven. Delicate hands peek out from the sleeves of the well-tailored black jacket. (On their first date the man would approvingly note that B’s nails had been carefully painted black. Trust him to hook up with probably the only camp, coloured, Goth on Gaydar.) B’s smooth olive skin radiates health. But it is the eyes, partly obscured by thick-rimmed glasses, that convinces the man to take a chance – despite his apprehension. Huge eyes. Slightly watery and a little bit sad. Kind eyes, the man assumes. It is the eyes that reveal that at least some of B’s forbears arrived in South Africa from South East Asia centuries ago, perhaps as slaves. “Slaves”. The word sticks in the man’s throat, a reminder of what his kind is capable of doing.

The man spends hours composing the emails he exchanges with B. He strives for a light, witty, but intellectually clever tone. He keeps the polite boasting to a minimum, but hopes he comes across as erudite and informed, yet attuned to popular culture and not over serious. About the calamity, the man, says nothing. B agrees to a “date”. They will go to “On Broadway” to watch a revue performance of scantily clad men singing about love and love lost. The man is nervous. He has never been on a real first date with any man in his life before. In the past he has always first slept with a man and then decided afterwards whether he would see him again. But now it’s become more complicated. The date goes well. They drink moderate amounts of wine – not enough to get drunk, but enough to get over the first awkwardness. Did they drink white wine or red wine? Several years later, the man cannot remember these details. The man is just tipsy enough not to pull away when his knee touches that of B under the table. B is a little giggly when the man drops him off outside his flat in Vredehoek. They kiss hurriedly – like teenagers on a fist date – and this too, goes well. A second date is on the cards.

Having gotten this far, I am not sure how to proceed with my story. It is still a problem of where to start, of how to structure my story, of what to reveal and what to keep to myself. Do I even remember these events relatively accurately? Do I have to stick to the facts – as if this is a legal document? Or can I lie to get to another kind of truth? How do I present my case to you, my jury, without sounding too self-indulgent or narcissistic? How do I elicit a sympathetic verdict and why do I care? How do I write a story without it sounding like an article published in the South African Law Journal – which, let’s face it, is not really a publication read for laughs.

Only the most formalistic lawyer will deny the fact that legal “cases are decided not only on their legal merits but on the artfulness of an attorney’s narrative” presented to the court. Does life not imitate the law in this regard? I recall reading an article by Robert Cover – not his famous article which starts with such a bang: “Legal interpretation takes place in a field of pain and death.” – no, not that one, but rather another article published in the Harvard Law Review about narrative, meaning and the law in which Cover wrote:

“We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. … No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”

The story could also begin at an altogether safer, more familiar, place. The man is standing in front of a class of 250 students at the University of Western Cape. He is teaching students about the right of gays and lesbians not be discriminated against, protected in the South Africa’s Bill of Rights. This happens several years before he went on a date with B, during an altogether happier time.

A short chubby woman with protruding teeth – one of the talkers in the class who, many years later, would bombard the man with a string of Facebook messages, asks whether you can reconcile the Constitution and the Bible. “The Bible is mos a mess about gay rights,” she laughs. Whatever happened to this student? In the Facebook messages the man later receives the former student suggests that she had lost her job as part of an unnamed conspiracy aimed at her because she has become a reborn Christian. “I know you will find this strange but God speaks to me in visions,” she writes on Facebook.

But that is far into the future. In class, the man proceeds with some delicacy. The majority of students do not support the prohibition of discrimination against gays and lesbians. “So you want to discriminate against me,” the man laughs. “If I did not know you better I would feel offended.” He flashes a smile. “And let me tell you, my boyfriend is not going to like this.” A snigger runs through the class. Another smartly dressed woman with long braids – the one who approached him early in the year, wetted her middle finger and tried to rub off the beauty spot from his left cheek – speaks up. “If the law prohibits discrimination it does not prevent anyone here from believing what they want to believe.”

“Let me ask a different question,” the man laughs. “Is it acceptable to discriminate against someone because, for whatever reason, you do not like that person?” A murmur runs through the class. A man with rosy cheeks and a goatee pipes up: “If you fail me because you don’t like me I will really be pissed off.” Everybody laughs. Nothing like some swearing in class to liven things up. It is time for the quote from the Constitutional Court judgment in Hoffmann v SAA. It is the case of the SAA who claimed it could not appoint Mr Hoffmann as an air steward because he was HIV positive and because their clients would not fly with SAA if it employed HIV positive staff. The man loves the quote. He tells the students it encapsulates all that is good about South Africa’s Constitutional Court and, for once, he says it without any irony.

“We must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests…. Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.”

I am stuck again. I used to quote that passage from the Hoffmann case so easily and with so much joy and pride. Now it sounds a bit cheesy. I open the Safari browser on my laptop and start searching Google Scholar and the Taylor and Francis electronic database for academic papers and books on how to tell a story of shame and loss and internalised stigma. During this search I chance upon Jerome Bruner’s book Making Stories: Law, Literature and Life. Bruner also writes about the way in which the law – like our lives – is about the telling of stories, about arranging facts in a manner that appeals to a judge (or, in the US context, a jury). A storyteller – like a lawyer presenting a case – needs to decide what to include and what to leave out. But what strikes me with some force is the following passage from his book: “Stories are surely not innocent: they always have a message, most often so well concealed the teller knows not what axe he may be grinding.” Is this story, then, about an axe I still have to grind with B? Or is it really about my fury at M, who, in the months before he left me, could not look me in the eye when we had sex? Or – dare I ask this? – is this story really about the axe I still have to grind with myself?

The story could also begin on a Sunday morning on a sunny day in January – 18 months before the man met B – in the front room of the house the man shares with M in Sea Point. The man nervously wipes the sleep from his eyes. Or maybe he is just fidgeting with his hands because he is anxious about what is to come. The smell of shit from his most recent bout of diarrhoea lingers on his fingertips. He wonders whether M can smell the shit from where he is perched on the armrest of the chair nearest the door, ready to flee to freedom. M, the man’s partner of 9 years, is uneasily fidgeting with his cell phone. He is wearing the yellow and green havianas the man brought back from a recent trip to South America. M has the habit of placing his hand in front of his mouth when he laughs in order to hide his protruding teeth. A few years before on their way to Grahamstown for the Arts festival a petrol attendant in Graaf Reinette told M that he looked like the Brazilian soccer star Ronaldinjo – although he did not call him Ronaldinjo but tandjies. M is not in the mood to laugh this morning. His left leg bops up and down as he speaks. “I can’t go on like this,” M says “because of what you have done to me. Because of everything”. A classic case of: it’s not me, it’s you. M stares out of the window towards the frangipani tree in full bloom, studiously avoiding eye contact. Maybe he is not staring at the frangipani tree but at something else. In any case, M is definitely not looking the man in the eye when he speaks. At least M is embarrassed. But probably not because he had to reach for a cliché to finally say the words which for the past three months have been hovering in the air, just this side of being spoken. There are no tears. The man jumps up from the couch and rushes past M. “Sorry,” he says, then dashes to the toilet to deal with another bout of diarrhoea.

Only several months later M would tell him about the love letters M wrote three years previously to a communal friend living in London. And it would be another year before M would phone him on a bright morning on new years day, teary and incoherent, and confess that he, M, had told his friends the previous night while he was high on too much acid and cocaine that he had never loved the man and that the nine year relationship was one more of convenience than emotional commitment. But when exactly was it that the gas heater M demanded for himself during the break-up exploded, gutting M’s new apartment in the ensuing fire? And when did the man’s oldest friend, hearing of M’s calamity, joke that the fire was to be expected “Dit wys jou net”, (It just goes to show) “Want God slaap mos nie” (Because God does not sleep).

I return to Bruner’s book on law and literature. Perhaps I can find an appropriate quote to cloak my sad and self indulgent story in a somewhat more intellectual garb. Bruner writes that “A self is probably the most impressive work of art we ever produce, surely the most intricate. For we create not only one self-making story, but many of them…. The job is to get them all into one identity, and to get them lined up over time… [It] is not only who and what we are that we want to get straight but who and what we might have been, given the constraints that memory and culture impose on us, constraints of which we are often unaware.” But a self is now conseptualised as a fragmented, ambiguous and ever changing cultural construct. Who you are is forever being created by power relationships over which you have no control. “Autobiography, then, is not a genre or a mode, but a figure of reading or understanding that occurs, to some degree, in all texts.” The self becomes a storyteller. Which is no longer a demeaning term, not someone who tells lies but who creates the self.

Every Sunday afternoon the man turns the house in Sea Point over to the estate agent while he wanders in a haze on the promenade. He returns home with only a vague memory of the afternoons. The taste of regret in his mouth. The house quiet and empty. The “For Sale” sign on the front gate telling its own story. The bare stubby branches of the frangipani tree casting melancholy shadows over the stoep. Not, it must be said, that the man would have noticed the frangipani at this stage of his life. He hardly notices anything not directly linked to his misfortune.

The man invites B for dinner at the house. B does not have a car, so the man drives to B’s flat to pick him up. B is carrying a small stylish leather bag. The man imagines it contains a toothbrush and a pair of clean underwear and socks. B is talkative. He keeps on touching the man’s arm. He throws his head back and laughs. The man pours wine, fries two pieces of steak in the kitchen while B perches on the marble counter top, his colourful socks peeking from beneath his skinny black jeans. The man pours himself another glass of wine. He only half listens to the story B is telling him. In his head he is rehearsing his speech. The man lights the candles. The blood oozes from the pink meat onto their white plates. He dishes up the salad and smiles vaguely while B starts telling a complicated story about how he went to watch the Oscar awards ceremony at a friend’s house and spilt red wine on the white sofa. The man is too preoccupied to wonder who the hell is stupid enough to serve red wine to a half drunk friend sitting on a white sofa. When B is finally silent, chewing on a piece of steak, the man takes the gap. Stuttering, his sweaty hands clutching the cutlery, he tells B that he is HIV positive. Before he can talk about ARV’s and how it saved his life, B shakes his head. Is he crying? No he is just shaking his head from side to side as if to shake off the words just spoken. “I cannot deal with this,” B says. “How can you do this to me?”

In another story, a story not more or less committed to the facts, in other words a supposedly less legal kind of narrative, he would have flicked the glass of wine (and it would have been red wine) into B’s face. Or he would have taken his plate of food and turned it over on B’s lap, B’s white pants stained bloody red by the juices from the steak. Or he would have plunged the steak knife into B’s right hand, pinning the hand to the table, blood spurting over the white tablecloth while B squeals in pain.

But in THIS story, in the narrative of what actually happened, he smiles at B and says. “I understand.” He comforts B with more empty words, careful that their hands or knees do not touch. He smiles encouragingly and nods and nods like an interviewer on a current affairs TV programme signalling interest in what her guest is saying. Eventually he drives B home. In front of B’s flat, he waits in silence as B clutches his leather bag in the hand that remains whole, unstabbed, before fleeing up the stairs of the Art Deco block of flats. Even when he drives home he is not angry with B. He dumps the half eaten bloody steaks into the rubbish bin, pours the glasses of half drunk wine into the sink, and packs away the candles. Later, after brushing his teeth, he sends B a text message. “Hope you are ok?” It is more than a year later before he sees B again.

I am not sure what the common script is for the kind of story I wish to tell. I am used to writing legal articles in which you have to spell things out, in which there must be a clear beginning, middle and an end. In my world the things I write about are supposed to be logical and to make sense. I again turn to Cover. Maybe there is help there.

The various genres of narrative – history, fiction, tragedy, comedy – are alike in their being the account of states of affairs affected by a normative force field. To live in a legal world requires that one know not only the precepts, but also their connections to possible and plausible states of affairs. It requires that one integrate not only the “is” and the “ought,” but the “is,” the “ought,” and the “what might be.” Narrative so integrates these domains. Narratives are models through which we study and experience transformations that result when a given simplified state of affairs is made to pass through the force field of a similarly simplified set of norms. The intelligibility of normative behavior inheres in the communal character of the narratives that provide the context of that behavior. Any person who lived an entirely idiosyncratic normative life would be quite mad. The part that you or I choose to play may be singular, but the fact that we can locate it in a common “script” renders it “sane” – a warrant that we share a nomos.”

It’s a year after the man last spoke to B. The man joins his friends to watch Ms Vanilla Von Teese performing her drag show at Bubbles Bar in Green Point. At the crowded bar, waiting to buy drinks for his friends from the beautiful barman whose bare lean torso is covered in glitter, B taps the man on the shoulder. “Hi,” says B, smiling sheepishly. He is wearing new glasses with modern lightweight frames. B is dressed smartly, a thin black tie matches his black jacket with thin lapels. The man nods stiffly towards B, but does not smile. Or if he smiles, so he imagines, it is not a warm and inviting smile. Then he turns back to the barman and orders drinks. To B he says nothing.

It is more than a week later that he receives a Facebook message from B. It contains only three words. “I am sorry.” If this was another story, not one hewing close to the truth, or at least close to the facts, the man would have deleted the messages without responding. Or it would have ended with the man replying with an eloquent message lecturing B about his prejudice and the ability of prejudice to devastate others. But the man knows how this story ends. It ends with him replying to the Facebook message with a one word message of his own. “Thanks!” It is only several weeks after sending that message that the man wonders for the first time why he attached a friendly exclamation mark and – for gods sake – a smiley face, to the end of that “Thanks!”

Rhodes statue – a reminder of strangeness made ordinary in democratic South Africa

The timely campaign by students demanding the removal of the statue of Cecil John Rhodes from its central position on the campus of the a University of Cape Town (UCT) raises broader questions about how South Africans should deal with its colonial and apartheid past, a past that still casts a long shadow over the country. At its heart the campaign challenges some of the (still widely held but often unspoken) assumptions about the past and about its impact on the contemporary society.

As I was taking out the rubbish earlier this week, I glanced over the bookshelf at the back door of my flat and noticed a book I had not thought of for more than 30 years. The book is a gushing biography of Apartheid prime minister John Vorster, with a picture of Vorster (his red alcoholic nose in full bloom) on the front page. The inscription on the title page states that the book was given to me as the Allied Building Society Prize for best progress in the matric year at Pietersburg Hoërskool in 1981.

I can’t recall that I ever read the book, but I do recall that receiving the prize meant a lot to the timid, insecure, boy trying to survive in the macho, all-white, aggressively racist and actively anti-intellectual environment of Pietersburg Hoërskool of 1981.

What struck me as I paged through the yellowed, dusty, pages of the book (look, a picture of Vorster taken in 1974 as Chancellor of Stellenbosch University with the all white and all male Student Council) was that I never before thought it strange or embarrassing to have been given such a book or to have it sitting on one of my bookshelves.

It is perhaps not that strange that the presence of a hagiography of a thoroughly wicked man like John Vorster on the bookshelf of a supposedly progressive, white, middle aged, Afrikaans-speaking South African like myself went unnoticed for so long.

In contemporary South Africa – with its entrenched patterns of race-based inequality, patriarchal, racial and homophobic prejudice and its oddly contradictory attitudes towards our recent past – the aberrant, the incongruous, the bizarre and the repugnant are often treated as normal or, alternatively, are completely ignored or denied.

For me the value of the campaign of the UCT students – beyond the immediate impact it may have on the pace of transformation at the University – lies in its potential to help us recognise and remember how strange and aberrant daily life in South Africa often is; to help us be more critical about the world we live in; to make us more consistently aware of the history and origins of hegemonic ideas and practices that serve to persuade some of us that the social, intellectual and economic dominance of our former colonisers are natural and self-evidently deserved.

Ultimately, it seems to me the protesters are calling on us to recognise the uncomfortable strangeness of our country, a country hovering halfway between a past from which it cannot escape and a future its citizens are too scared, filled with self-doubt or complacent to re-imagine and recreate in their own image.

The students are reminding us that if we are prepared to recognise the strangeness of our (not so) post-colonial country, if we are prepared to recognise how aberrant and (at the very least) ethically dubious it is that the former oppressors and the previously oppressed live side by side in a country in which many statues that glorify the exploits of the oppressors still have pride of place, we may begin to imagine and build a different society not held hostage by its past.

A continued awareness of the inherent strangeness of our society may help unleash the creativity, originality and energy needed to re-imagine and re-create our world. Being disturbed and unsettled (as opposed to being complacent and self-satisfied) can surely be an enemy of mediocrity.

However, because of sheer force of habit, or blinded by our privileged complacency, or forced by the dull repetition of sometimes grinding routines, twenty years after the formal legal end of apartheid too many of us fail to always notice the million little (and not so little) ways in which our world is still dominated by the values, attitudes, beliefs, practices, language, culture and intellectual judgements of those who colonised the country and oppressed and exploited the majority of its people for their material and cultural benefit.

The fact is that the lives of all of us who live in South Africa (regardless of race) remain – to some degree – entangled with our colonial and apartheid past. None of us can escape the lingering consequences of the colonial conquest of South Africa or the rest of the continent. Nor can we honestly claim that if apartheid never happened our lives would have been exactly the same as it is today.

As the campaign to remove the statue of Rhodes makes clear, we are entangled with the past partly because it still physically shapes and economically structures the environment in which we live.

For those who care to look, and for those whose circumstances and experiences make it impossible to look away, evidence of the strange and aberrant nature of our physical world abounds.

We all live in a country created and named by the colonisers and many of us live in towns or cities whose names glorify those who dispossessed and oppressed the majority of citizens. The geography of every city and town in South Africa carries the scars of our divided past. Every town and city in South Africa is essentially still organised according to the principles of apartheid town planning.

Many of our government offices, grand court buildings and university halls reflect the architectural traditions and tastes of a colonial culture that those who controlled these institutions until 1994 so fervently emulated and adored.

But we are also entangled with the past because everything all of us assumed, everything we believed, everything drummed into our collective consciousness over 350 years of colonial conquest and racial domination did not evaporate into thin in in 1994.

At our Universities the apartheid-era curriculum was not abolished when the old South African flag was formally lowered for the last time. Even if the regime had been violently overthrown in a revolution it would in any case have been impossible to do so.

For example, for understandable pragmatic reasons we did not ditch the common law which is a prime product of colonial conquest, serving to legitimise “white” rule with the fig leaf of legality. Today in most law schools in South Africa the common law rules are still more or less taught uncritically, without asking whether a rule advances any interests based on class, race and gender. Few lecturers analyse common law rules in terms of the ideological work they perform, or ask whether such rules help to perpetuate the unjust economic status quo or to protect and advance the economic interests of the powerful.

Many academics and university administrators still believe our places of learning and research should uncritically imitate institutions like Oxford and Cambridge – no matter how different our social and economic context may be and no matter how distinct the intellectual demands on our graduates in South Africa may be. Oxford and Cambridge are by all accounts excellent – if exceedingly conservative – academic institutions, but they operate in an environment radically different from our own.

If we study or teach at a University in South Africa most of us do so in English, the language of those who colonised our country. Whether we like it or not, at our universities we are all deeply entangled with the values, the systems of knowledge, the intellectual traditions and habits of thought that originated in Western Europe.

Given the social and economic dominance of Western powers in the globalised capitalist world, it is impossible to escape such influences. It would almost certainly be foolhardy to pretend to do so.

I am therefore not arguing that it is possible or desirable to end the entanglement with our colonial and apartheid past. Just as you cannot take milk out of a cup of coffee once it has been poured, you cannot return South Africa to a mythical, idealised place before colonialism or apartheid.

Instead I am arguing that the campaign to remove the statue of Rhodes may help us to acknowledge the inherent strangeness of our post-apartheid world and to engage with this strangeness in an honest and continuous way. It calls on us to reflect critically on what can be done to make our world less strange; what can be done to address – both materially and symbolically – the corrosive effects of colonialism and apartheid. Although we cannot entirely disentangle ourselves from our past, we can take steps to change the world we live in for the betterment of all.

In a university context it calls on us to rethink our curriculum, to rethink what we teach and how we teach it. It demands of us to be smarter and more creative, more aware of the context within which we teach, learn and do research; to ask hard questions about the inherent mediocrity that results from uncritically trying to imitate the modes of thought developed elsewhere in response to different problems.

But to do so we first have to admit that it is not possible to draw a sharp line between the apartheid past and the post-apartheid present. We have to acknowledge that this continued entanglement with our colonial and apartheid past is profoundly disturbing and ethically fraught – especially for those of us who have so handsomely benefitted from the oppression of others. And, of course, we have to be decent and honest enough to recognise the utter repugnance of a university giving pride of place to a statue that celebrates the achievements of an oppressor.

“Unparliamentary speech”? There is no such thing.

In the no confidence debate in the National Assembly this week ANC Chairperson Baleka Mbete, who sometimes also moonlights as Speaker, ruled that it was “unparliamentary” to call President Jacob Zuma a “thief”. At present there is no Parliamentary rule, nor any standing order or resolution, which prohibits or regulates “unparliamentary” statements made by an MP. The Speaker therefore had no legal authority to make the ruling and her ruling was unlawful.

In a recent judgment, the Constitutional Court reminded us (if we needed reminding) that “[p]olitical life in democratic South Africa has seldom been polite, orderly and restrained” but has rather “always been loud, rowdy and fractious”. But, said the court, “[t]hat is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible”.

Such vigorous discussion will often be rude and aggressive and politicians who do not like being insulted should probably get another job. There is no place for the fainthearted in our political discourse.

In its judgment the Constitutional Court found that a text message sent by the Democratic Alliance before the previous election stating that “[t]he Nkandla report shows how Zuma stole your money to build his R246m home….” expressed an opinion that did not contravene the relevant provisions of the Electoral Act.

The judgment did not find that the claim that President Jacob Zuma is a thief was true. It is therefore not clear whether President Zuma would be able successfully to sue for defamation if he is called a thief outside Parliament. (The Constitution protects MPs from being sued for defamatory statements they make inside Parliament or in any of its committees.)

The Speaker was therefore correct to rule that the judgment did not speak directly to whether an MP can call the President a thief in Parliament. (However, to the extent that the Speaker suggested Parliament was not bound by applicable Constitutional Court judgments, she was obviously talking dangerous nonsense.)

What has to be determined is whether the rules of Parliament prohibit an MP from calling the President a thief on the ground that such a statement would be “unparliamentary”.

Neither the rules of the National Assembly nor the standing orders prohibit an MP from making prima facie defamatory statements about any individual who is not a member of the Assembly. The President is not a member of the Assembly (he ceases being a member of the Assembly when elected President) and for the purposes of this discussion is no different from any other ordinary member of the public. Even if there were a rule that prohibited an MP from calling another MP a thief (there is no such general rule), it would not apply to the President.

Section 58 of the Constitution states that Cabinet members, Deputy Ministers and members of the National Assembly have freedom of speech in the Assembly and in its committees, subject to its rules and orders. This means that MP’s can say anything about somebody in Parliament unless constitutionally valid rules or orders of the Assembly regulate or prohibit such speech. The Constitution does not allow the limitation of free expression in Parliament by a “practice”.

There is no rule that prohibits “unparliamentary” speech by an MP and so no rule that prohibits an MP from calling the President (or anyone else – including you and me) a thief. Strangely, a “practice” has developed according to which the Speaker forces MP’s to withdraw “unparliamentary” statements. As there is no fixed definition of what constitutes “unparliamentary” statements, this illegal practice grants the Speaker unfettered discretion to censor any statement by an MP she does not approve of.

But the Constitution does not allow a Speaker to limit the freedom of speech of MPs unless he or she is authorised to do so by the rules or orders of Parliament. A vague “practice” will not do. This means every time the Speaker rules that certain speech by an MP is “unparliamentary” and must be withdrawn, the speaker is unconstitutionally limiting the freedom of speech of MPs as she is invoking a “practice” that has absolutely no legal standing.

Now, the rules of Parliament could be amended in order to add a rule that would allow the Speaker to rule “unparliamentary” statements impermissible. It will depend on the content of the rule (especially whether it was formulated with sufficient precision) whether it would pass constitutional muster. Parliament could also adopt a standing order to this effect. Again, the standing order would need to comply with the Constitution. But none of these options have been followed.

This means there is no legal authority for the Speaker to rule on “unparliamentary” statements of MPs. When she rules speech “unparliamentary” she has the same legal authority to do so than, say, the legal authority I have to order South African troops to invade Lesotho. It’s a dangerous and anti-democratic nonsense inherited from the colonial Parliament. It is beyond me why the MPs of all political parties have thus far gone along with this flagrantly illegal limitation on their rights to free speech.

Now, one argument to counter this view would be that the Speaker retains a general discretion to make up rules and to invent “practices” that limit free speech. Such an argument would probably rely on rule 2, which grants the Speaker the authority to rule on “any eventuality for which these Rules do not provide”.

But this rule is not applicable to limitations on what can and cannot be said in Parliament because the rules of the National Assembly already contain extensive provisions on the regulation of speech in the National Assembly. As the rules already provide for the limitation and regulation of free speech to retain order and decorum in the House, the Speaker is not authorised by rule 2 to make up new rules or to invent new practices to limit free speech merely because the colonial masters in London may have applied a similar “practice” or “rule”.

If the rules were read differently, it would lead to absurd results as it would allow the Speaker to make any rule limiting the freedom of speech of MPs, including a general rule that no opposition MP is allowed to ever say anything in Parliament. As rule 2 does not apply, this means the Speaker cannot invoke the nonsense of “unparliamentary speech” because there is no rule or order that allows her to do so.

How do the actual rules and orders of the National Assembly limit free speech at present and why is it that these existing rules do not usually apply to statements made by MPs about the President (or about any other non-MPs)?

Rule 46 of the National Assembly prohibits MPs from talking aloud during a debate while rule 47 prohibits an MP from interrupting “another member whilst speaking, except to call attention to a point of order or a question of privilege”. Rule 50 further regulates speech by stating that the Speaker “after having called attention to the conduct of a member who persists in irrelevance or repetition of arguments, may direct the member to discontinue his or her speech”.

Rule 61 prohibits any MP (including the Speaker!) from referring to any other MP by his or her first name or names only (which is why MPs often call each other honourable member – something which, I am ashamed to say, often makes me snigger like a naughty schoolgirl).

Rule 63 prohibits an MP from using “offensive or unbecoming language” in a debate. Rule 63 does not refer to the content of the speech but rather to the form the speech takes. Calling somebody a thief or a liar or alleging that a tenderpreneur has cheated the state out of millions of Rand would not be covered by this rule, but calling a person a “little shit” or a “fuckwit” or some such offensive term would obviously contravene rule 63.

Rule 66 also prohibits an MP from reflecting upon the competence or honour of a judge of a superior court, or of the holder of an office (other than a member of the Government) whose removal from such office is dependent upon a decision of the House, except when a substantive motion to that effect is being debated. This rule obviously applies to judges and individuals such as the Public Protector or members of the South African Human Rights Commission, but does not apply to the President or other Cabinet Ministers.

Rule 67 quaintly prohibits MPs from referring to any matter on which a judicial decision is pending. This rule contains the pre-constitutional position regarding the sub judice rule, but this position has been overturned by the Supreme Court of Appeal in the Midi-Television case, so rule 67 may well be unconstitutional. Nevertheless, until it is invalidated it applies, so when Deputy President Ramaphosa refused to comment on his involvement in the signal jamming fiasco he was acting in conformity with the existing rules.

However, there is a standing order made by a former Speaker of the National Assembly, Frene Ginwala, on 17 September 1996, which reads as follows:

A member who wishes to bring any improper conduct on the part of another member to the attention of the House, should do so by way of a separate substantive motion, comprising a clearly formulated and properly substantiated charge and except upon such a substantive motion, members should not be allowed to impute improper motives to other members, or cast personal reflections on the integrity of members, or verbally abuse them in any other way.

First, it can be argued that the motion of no confidence in President Zuma indeed constituted a “substantive motion” about his conduct and therefore covers the debate conducted this week.

But even if this was not correct, the standing order quoted above did not apply to President Zuma. This is because the standing order only applies to MPs (or to the President when he is actually present in the Assembly) – not to non-MPs. Although rule 5 states that when the “President takes his or her seat in the Assembly” the rules also apply to him or her, this week (as is almost always the case when the Assembly sits) the President was not present in the Assembly, which means that the standing order quoted above could not possibly have applied to him.

Thus, as the rules stand, when the President is not in the Assembly, an MP is allowed to say the most scurrilous things about the President during any debate (regardless of whether a substantive motion to this effect had been brought) – as long as this is not done in “offensive or unbecoming” language.

When the President is not in Parliament an MP can call the President a murderer (perhaps alluding to Marikana), a thief (perhaps alluding to Schabir Shaik and/or Nkandla), a liar (perhaps alluding to his answers about Nkandla) or a weakling and lackey (perhaps alluding to the Gupta’s).

As the Constitutional Court pointed out in the case quoted above voters are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint.

When MPs make claims about the President in Parliament ordinary voters would judge such claims accordingly. Unless the President had acted in a way to give credence to the scurrilous claims made in Parliament about him, most voters would dismiss the claims as overblown political rhetoric.

This view accords with the idea that voters (and not politicians) are ultimately in charge and ultimately judge politicians and their parties on voting day. Voters judge whether they have any reason to believe an MP when he or she uses parliamentary privilege to call the President (or anyone else) a thief.

It’s called democracy. Pity the Speaker does not seem to be a fan.

Welcome to Worcester – and apartheid 2015 style

If you are poor and black and live in South Africa (especially in a rural town), you do not enjoy the same rights that the rest of us take for granted. Sometimes state agencies – including the police – conspire to reinforce your second-class status, supposedly to protect the economic privileges of the “white” middle class, but in fact to reinforce the overall domination of “white” middle class people over “black” poor people. Welcome to apartheid, 2015 style.

If you live in the overwhelmingly “white” suburbs of Worcester in the Western Cape, you might well think of your town as idyllic. You might be one of the residents who on Sundays attend the handsome, whitewashed Dutch Reformed church (known as the “Moederkerk”), its spire prettily set against the silhouette of the Hexriver mountains.

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You might be one of those who unironically pray to the Dutch Reformed God who reportedly said that “it is easier for a camel to go through the eye of a needle, than for a rich man to enter the kingdom of God”.

Then you might stroll home from church dressed in your Sunday best, content and happy that “your” streets are being kept free of the majority of poor “black” people by the police service of the very government you despise and mock.

This is so because in Worcester the community policing forum – with the full support of the South African Police Service – introduced a “green card” system to regulate the comings and goings of poor black people in town in order to cater to the racist fears of overwhelmingly “white” residents. As Norman Jooste, who works as a gardener for one of the middle class families, explains:

Most gardeners want a card because residents don’t trust you if you don’t have one. I haven’t been asked by police for a green card, but where I went to ask by white people for work, they asked for it and if you don’t have it, they call the police. If you tell the police you do work in the area, they will go to your employer to confirm it. Those who don’t work in the area are asked to leave.

In other words, many “white” people in Worcester won’t give you a job if you do not carry the “green card” because they harbour racist fears. If you are poor and “black” and do not work in the “white” area, the police will harass you and demand that you leave the area. You are viewed as a potential criminal because you are poor and “black” merely because you are poor and “black”. You can “prove” that you do not conform to this racist stereotype, if you carry a dompas, also known as a “green card”.

Sergeant Julian Plaatjies confirmed that the cards are given to people who work or want to work in certain neighbourhoods, after a spike in break-ins and thefts. “Initially it was only for gardeners but people have approached us to extend it to domestic workers and to then call it a pink card.”

I am not making this up.

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Now, middle class “white” people who live in Worcester do not carry “green cards”. They are not assumed to be criminals involved in “break-ins and thefts” who can only prove their honesty by carrying a “green card”. Only poor “black” people are assumed to be inherently criminal and are required to carry a “green card” as a prerequisite for employment in the predominantly “white” suburbs.

This is obviously unconstitutional and illegal.

First, the practice infringes on the right to freedom of movement, which is guaranteed by section 21 of the Constitution. Section 21(3) states that “[e]very citizen has the right to enter, to remain in and to reside anywhere in, the Republic”. Where you are required to carry a “green card” in order to move freely and without fear of being harassed or branded as a criminal in public streets, while others are not required to do so, you are being denied your basic right to dignity.

The public streets do not belong to the residents of a neighbourhood – no matter what the Tim Osrin’s of the world might believe. They belong to all of us. Not the members of the policing forum, nor the police, or the members of the neighbourhood watch, or the members of a private security company are allowed to harass you or to tell you that you have to “move on” and may not walk freely through the public streets of a neighbourhood.

(Incidentally, please do ignore the traffic cones sometimes placed by companies in public streets to “reserve” parking for their clients. They have no legal right to do so as they have no right to annexe public spaces for private use.)

Second, the practice infringes on section 22 of the Constitution which states that “[e]very citizen has the right to choose their trade, occupation or profession freely.” There is no law that authorizes a policing forum to impose direct or indirect conditions on the employment of poor “black” people in a specific neighbourhood.

In fact, by requiring poor “black” people to carry a “green card” before they would be employed, “white” middle class homeowners are in breach of the provisions of the Employment Equity Act. It is not and can never legally be an inherent requirement for a job that you should carry a “green card” which turns you into a second class citizen.

What must be clear is that making the employment of poor “black” people in a neighbourhood dependent on the carrying of a green card is racist. It stereotypes poor “black” people as potential criminals.

To my knowledge, the Johannesburg Stock Exchange (JSC) has not required everyone who looks like Brett Kebble to wear a “green card” before they could enter the JSC because of fears of criminality by Kebble lookalikes (despite the fact that Kebble stole far more money from shareholders than any person in Worcester ever will). Nor has anyone required all CEO’s of large construction companies (and those who look like them – basically all balding “white” men in grey shoes) to wear “green cards”, despite the fact that these gentlemen colluded to rob taxpayers of billions of Rand in the run up to the soccer world cup.

Because it’s racist it is also discriminatory and thus in breach of the relevant provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). PEPUDA makes clear that discrimination occurs when any policy, law, rule, practice, condition or situation directly or indirectly imposes burdens, obligations or disadvantage on; or withholds benefits, opportunities or advantages from, any person based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Here the burden to carry a green card in order to get a job and (depending on who you believe) to be able to move freely in a neighbourhood is imposed either directly because those targeted are “black”, or indirectly because they are poor but overwhelmingly or exclusively “black”.

Unfortunately, some South Africans are unaware of the jurisprudence of the South African Constitutional Court, the Kenyan Supreme Court, the Canadian Supreme Court, the European Court of Human Rights and every other major human rights institution (bar the US Supreme Court – if one can still call that court a human rights institution), and have not read the basic texts written over the past 60 years on equality law. Because they do not know that they do not have a basic knowledge of discrimination law, they cannot grasp the basic fact that a determination on whether different treatment constitutes discrimination (unfair discrimination in South African terminology) depends on power relations and context.

Mindlessly shouting slogans that were in vogue a 100 years ago (when most “Western” nations prohibited women from voting and endorsed the most egregious forms of racial discrimination), they say that any different treatment based on race is racist. It is not. What is required is to ask how the different treatment would impact on different people, given their relative social and economic power and status in society.

It is for this reason that PEPUDA – following the Constitution – does not prohibit discrimination, but unfair discrimination. In terms of section 14 several factors must be taken into account when determining whether discrimination is fair or unfair.

These factors include: whether the discrimination impairs or is likely to impair human dignity; the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage; the nature and extent of the discrimination; whether the discrimination is systemic in nature; whether the discrimination has a legitimate purpose; and whether the different treatment is aimed at accommodating diversity or rather to impose or police dominant norms that exclude some from opportunities and benefits.

If you are poor and “black” you already suffer from patterns of disadvantage. (If you are middle class and “white”, you do not.) Moreover, as the Constitution Court stated in Hoffmann v SAA prejudice can never justify discrimination. Therefore, if you are poor and “black” and living in a small town in the Western Cape, and an extra burden is imposed on you in order to get a job or to move freely on the assumption that you are a potential criminal because of your race, you are being unfairly discriminated against in conflict with PEPUDA.

Sadly, some “white” residents of Worcester (as well as some “black” Police officers who have internalised the racism of the economically dominant group), will not admit to this obvious fact.

I wonder whether the dominee of the Dutch Reformed Church in Worcester will dare to tell the racists in his congregation this basic truth.

Mike van Graan and AFAI never loved us

Mike van Graan, the Executive Director of the African Arts Institute (AFAI) has sent me the following response to the Blog I wrote last week. He says it will be published on AFAI’s website. I publish his full, rambling, piece below without comment, despite the fact that some of the claims are obviously defamatory. Readers will  make up their own minds about the veracity of  his arguments and factual claims (and about the character and ideology of the person who wrote it).

Don’t touch me on my bigotry

Professor Pierre de Vos is a highly respected commentator on constitutional and legal matters as they relate to our polity, and is an outspoken thought leader on issues of relevance to the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community. It is for this reason that the African Arts Institute (AFAI) invited him to participate in a public forum on Monday 23 February on the topic “Is same-sex love African”?

He subsequently wrote a blog on his site, Constitutionally Speaking, in which he not only shared his general critique of the event, but was particularly critical of AFAI for giving a platform to Iman Ismail Ngqoyiyana, who expressed views that many in the audience found offensive. In his blog titled “Those intolerant of bigotry do not invite bigots to speak” he suggests that the African Arts Institute needs to be “delegitimised” the African Arts Institute for providing a platform for “bigotry”. In doing so, Professor De Vos shows himself to be at best myopic in his interpretation and representation of what occurred that night, playing to his gallery, and at worst, not a little economic with the truth, which raises huge questions about his integrity, and about whether to take seriously anything else he writes in future.

This is a response to his blog, which I have divided into sections below, with my comments under relevant sections.

But first, three introductory points:

  1. AFAI hosts regular public forums on controversial subjects or “hot topics”, ranging from whether artists should be members of political parties; the Cape Town Fringe’s censorship of a play by a “sex pest”; the City of Cape Town’s support for public art installations such as the “Ray Ban spectacles” to the closed casting of the recent Maynardville production of Othello funded by taxpayers. For all of these, we try, as far as possible, to have a range of views on the panel that introduces the topic, after which we invite engagement with the audience. The panel on same-sex love in Africa was no different in form.
  2. AFAI advertises these events on social media, on our website, and through direct emails to our database; who attends depends entirely on the topic, the speakers and the interest of those who receive the information. We do not restrict attendance in any way; nor do we screen attendees before they are allowed to attend or participate in the forum.
  3. At the “same-sex in Africa” forum, three of the four panellists were from the gay community; most of the audience – certainly if the speakers from the audience were a barometer – were gay, or highly sympathetic to our gay community.

The following are paragraphs are from my prepared introductory remarks to the forum (which I referenced, but did not read word-for-word at the beginning):

 Tonight’s forum takes place in the context of the latter area of engagement (AFAI’s interest in cultural policy and theory). Over the last year, we’ve hosted seminars and public forums in Johannesburg and Cape Town under the broad rubric of “Culture and Development”, the banner under which international funding is generally made available to stakeholders in the African creative sector.

Often, some of the themes introduced to us in Africa arise out of contexts in which they may be more applicable than our own, but we embrace them, because of the resources attached to them. So yesterday it was cultural diversity, the day before, the creative industries, today, it’s climate change and the arts, tomorrow it’s intercultural dialogue, etc.

What do these themes mean for us? Are they relevant to us? Do the conditions exist across the continent for these to be embraced in their entirety, or in part?

On the other hand, we often hear about the need to find African solutions for African problems, and in the process, people suffer while we search for such answers. We often hear of the need to interrogate issues from within African cultural paradigms, and this is where the notion of culture and development first arose in the sixties: models of development were introduced to newly independent countries and yet, they failed because they were not rooted in the values, worldviews, belief systems of those who were supposed to benefit from these.

There is much debate about human rights in Africa and whether what may be considered human rights in western democracies where particular cultural values prevail, might have different meanings and expressions in other contexts e.g. the debates around freedom of expression and the rights to private property.

There are also debates about democracy, about whether – given the influence of more traditional forms of governance – African forms of democracy are different to western forms of democracy. In our own country, we often hear the argument that a particular course of action or belief is inconsistent with the culture of a particular community. This is the area in which AFAI works, trying to negotiate, interrogate and understand what is valid and legitimate when it comes to the impact of culture on development, on human rights and on democracy, and on the other hand, what is not.

South Africa’s constitution outlaws discrimination based on a number of factors, including sexual orientation, which has led to South Africa being held up as one of the most progressive societies in the world. Same-sex marriages are now legal as is the adoption of children by same-sex couples.

But this constitutional right is not supported by everyone. Religious and various cultural communities consider this to be inconsistent with their religious beliefs and/or the values, traditions, belief systems – in short – the culture of these communities.

The vast majority of African countries have outlawed same-sex relationships, and have imposed harsh penalties on gay relationships. Many of these countries – and people within these countries (as we know from travelling across and working with colleagues in a number of African countries) – consider same-sex relationships a western import, a western construct, an imposition of an immoral western society, declaring that same-sex relationships are un-African. They claim that there is no tradition of same-sex relationships in Africa, and reject any advocacy around this, to the point of some declining funding from western countries should this be conditional upon them allowing – or at least turning a blind eye to – homosexual relationships.

So, tonight, we’re asking that simple question: in the same way that we’ve asked before – is the Universal Declaration of Human Rights – all its clauses – consistent with African understanding? Of course, there are 54 countries on the continent so that what is “African” is hardly “essentialist” or consistent across the continent, but with so many countries actually having passed laws legislating against same-sex love, the question tonight is “Is same-sex love African or not?” And, depending on how the question is answered, what are the implications?

Constitutionally Speaking

Those intolerant of bigotry do not invite bigots to speak

Feb 25th, 2015 by Pierre De Vos.

One of the favourite mantras of some free speech fundamentalists is that “the cure for bad speech is more speech”. But sometimes it is counter-productive, even wicked, to continue debating an issue when such a debate serves to promote and legitimise beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people. Sometimes the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform.

The professor tilts as [sic] windmills in his opening paragraph, seeking an enemy – “those…who give (‘bad speech’) a platform” where none exists, and so, possibly alienates an ally, or a potential ally, in the process. What we as AFAI were looking for from the debate, and what we expected from someone like De Vos, were intellectually sound arguments, a capacity for dissecting the presentations of those with whom they disagreed, a presentation of research that dismantled the reasoning or beliefs of their opponents. What we got instead is De Vos’ emotional characterisation of the debate as one that legitimised “beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people”, the kind of characterisation that makes it difficult to argue against for fear of being accused of being complicit in such dastardly deeds (as De Vos implies we are).

De Vos naively suggests that “the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform” as if by doing so, one will do away with the beliefs and practices that lead to the rapes and murders of black lesbians for example! A more rational approach – in my view – is at best, to confront and dismantle the beliefs and practices that lead to such violence against the LGBTI community, and, at worst, to seek to form alliances and partnerships with those whose views might be fundamentally different to yours on particular issues, but who agree with you on other fundamentals, like, for example, not criminalising or killing gay people, so that they, in turn, may influence others not to commit such acts of violence against the LGBTI community.

Thirty-eight African countries have laws prohibiting homosexual practices, many of them in the belief that homosexuality is a Western import, a signifier of Western decadence. Iman Ismail Ngqoyiyana himself gave expression to this view, so that it is not only a view held beyond the Limpopo; it is a view held by a religious leader who has influence in his Khayelitsha community.

I would venture that there would be more chance of reducing the number of rapes and murders of lesbians in Khayelitsha by engaging with religious leaders in that community to take a strong stand against such violence, than by dismissing any engagement with them on account of them being “bigots”. By the same token, De Vos would refuse – and encourage others not – to engage with political, religious and social leaders in African countries where homosexuality is criminalised, because – as expressed in his blog – the very act of engaging them is “wicked”, or perpetuates the beliefs that lead to such criminalisation. This way of thinking, I would argue, is the way of the rich and the privileged, those who in fact do not face such violence and criminalisation, but live in their laager of well-resourced pontification, surrounded by fellow pontificators, all reinforcing each other’s ivory tower outrage.

Let’s get this straight. The debate did NOT promote the murder of lesbians; even Imam Ngqoyiyana made this clear. After the panellists each had a chance to present their views on the topic, there was an audience member – one who introduced himself as Ebrahim – who began by saying that he hopes not to offend anyone, and then proceeded to say that the Quran tells the story of Lot, a righteous man, who was the only man saved when God punished the people of a city for their sins, including the sin of sodomy, where those engaged in such acts were crushed.

At this point, one of the panellists objected to what she said was hate speech, an incitement of violence against gay people. In my role as facilitator of the debate, I expressed the view that simply for the audience member to be describing what he understood the Quran to be saying on the subject, was not necessarily the same as advocating it.

When Iman Ngqoyiyana responded to the round of questions, he expressly contradicted Ebrahim, stating that it is not the Quran, but the Bible that calls for the killing of homosexuals and he quoted the relevant chapters and verses in Leviticus. When questioned further about Islam’s attitude to homosexuals, Iman Ngqoyiyana said that three of the four main schools of Islamic law promoted the death penalty for homosexuals, while the fourth did not. South African Muslims – he said – subscribed to the fourth school of thought, and did not advocate death for homosexuals. Local Islamic scholars and leaders believed in the “re-education” of homosexuals.

Thus, for De Vos to suggest that the debate promoted beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people, is, quite simply, false, a figment of his own self-righteous, heroic imagination.

 When I was invited by the African Arts Institute to take part in a panel discussion on “Same sex love in Africa”, I reluctantly agreed. I find it somewhat tedious and politically problematic to be asked to talk about the African continent and its people as if it is a monolithic space inhabited by people who are identical in every way.

De Vos’ imagination continues to haunt him in the above paragraph; no-one asked him to speak about the African continent as if it were a monolithic space. In my introductory comments, I stated quite clearly that Africa is not a homogenous entity, and that there were not only differences between countries and regions, but even within countries. During the discussion, De Vos himself referenced this opening comment in agreement, so to give the impression that he was reluctantly engaging in a debate shaped by the African Arts Institute to imply Africa as a monolith, is disingenuous.

In truth though, 38 African countries have outlawed homosexuality. This is more than two-thirds of the total number of African countries. Should these countries constitute a voting bloc in an African parliament, their two-thirds majority would make this an “African position” in that the majority of African countries have laws criminalising same-sex love. Many African leaders have expressed the view that homosexuality is an import or imposition of the West, a view they further justify when Western countries withhold – or threaten to withhold – development aid against countries that have outlawed homosexuality.

In the last month, I’ve been approached by a young refugee from the Democratic Republic of Congo for advice about publishing his book, Who is African and Proud to be African? In it, he specifically asks the question “Is homosexuality African?” At a recent cultural policy workshop which we hosted for leaders in cultural NGOs in the Eastern Cape, the overwhelming view expressed by particularly the men in the workshop – who identified themselves as Xhosa men – was that homosexuality was not part of their culture.

During the public forum, De Vos took the African Arts Institute to task as in his view, we were starting with the wrong question; that to ask the question – is same-sex love consistent with African culture? – is to perpetuate the marginalisation of gay people in Africa. If there is arrogance, then it is in the dismissal by De Vos of a question and a view that many people subscribe to across the continent!

As AFAI, we work in the realm of cultural policy and theory, seeking answers and perspectives to issues that confront practitioners on the continent, from within African paradigms and conditions as varied as they are. It is in order to deal with the question that we ask it, hoping for learned colleagues to help us grapple with it and present alternatives to the dominant discourses where necessary. The elitist De Vos though, with typical South African arrogance (in relation to the rest of the continent) dismisses the question and concern as “wrong”.

The manner in which “Africa” (as a colonial construct) is deployed in the Western imagination to erase the beauty, vibrancy, individuality, vitality, agency and multiplicity of vastly different individuals living in different parts of our continent is galling and arrogant.

I agree. But what for me is equally galling, arrogant and tiresome is the denialism of a political or class elite that is so eager to dispel “western” constructs or “colonial” impressions of Africa or to prove their African credentials, that in doing so, they ignore or shy away from the poverty and oppression of many of the continent’s people. There is a reason why most African countries find themselves in the “Low Human Development” category of the UNDP’s Human Development Index that measures life expectancy, education levels and quality of life. There are reasons why, despite huge GDP growth for many African countries over the last 15-20 years, most African people continue to live below the poverty line eking out an existence in the informal sector, with sub-Saharan life expectancy at unacceptable low of 55 years. Africa is not a continent of binary oppositions, of “Africa Rising” or “Africa: The Dark/Hopeless/Bottomless Continent”; it has elements of both, simultaneously and much more in between, and beyond either of these poles.

What we are facing and challenging though with regard to this particular issue, is not something that has to do with a colonial or western imagination (this is a complete red herring in De Vos’ blog); it has to do with what Africans themselves are saying! And what they are saying is that homosexuality is western, it is an imposition of the West on Africa, and are rejecting it as not part of “African culture”. So it is with great irony that De Vos holds forth about the “beauty” and “agency” of Africa, but wishes – with typical Western arrogance – to deny Africans their agency in dismissing homosexuality as un-African.

This habit of thinking and speaking of “Africa” as a gigantic, blank space inhabited by smiling people patiently waiting under acacia trees for Madonna or Brangelina to adopt their children while lions roar prettily in the distance is perfectly captured by the mocking title of the magnificent website called “Africa is a Country”. I nevertheless agreed to take part in the discussion at the Artscape Theatre in Cape Town because I believe it is important to engage critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs and dogmas about the sexuality of the previously colonised and the marginalised and oppressed in society. I do not, in principle, have a problem to talk about the harms caused by religious dogma and how we can begin to address the corrosive effects of this dogma on people living in different societies, cultures, and in different towns, cities and countries.

If only De Vos had actually “engaged critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs…” and if only he had talked about how “we can begin to address the corrosive effectives of this (religious) dogma”…this would have been an actual, real and meaningful contribution to the public forum. Instead, all we got was a “woe-is-me” reaction to some of what he thought the Imam as saying, and this, after he had decided that the topical question on the night was not the right question!

A good place to start is to recognise that the colonial conquest of the African continent facilitated the spread of Christianity and Islam throughout the continent. If you are thus the kind of person who likes to show your disproval of certain beliefs or practices that you do not know or that you fear by claiming that they are “un-African” you might well need to start by conceding that Christianity and Islam are “un-African”. The colonisers (animated by racist fears) invoked beliefs and dogmas borrowed from these religions to stigmatise as dangerous and degenerate sexuality and desire that did not conform to problematic, idealised, Western, norms in order to justify the policing of sex and desire through the enforcement of Western style criminal law and through the enforcement of religious dogma. Reactions to Brett Murray’s The Spear painting reminded us again of this shameful history and the problematic ways in which colonial conquest stigmatised sexuality and desire (and pathologised black bodies more generally) in many parts of our continent.

There is no doubt that Christianity and Islam have contributed substantially to views and beliefs about sexuality, and continue to do so, with the anti-gay laws in Uganda, for example, being sponsored by American churches. But many Africans are not necessarily responding to homosexuality in terms of their religious beliefs or identity; some are doing it as “Africans” as “Xhosa men” for example.

Islam has been part of Africa for literally hundreds of years, as has Christianity, so that these ARE now integral to – some – African cultures (cultures change after all, and integrate dominant influences). Football, hardly African in origin, is now an integral part of African culture. It is thus erroneous – but, more importantly, of little persuasive value – to dismiss proponents of the idea that “homosexuality is un-African” as having “borrowed” these beliefs from un-African religions.

De Vos’ reference to Brett Murray’s painting, The Spear, which depicted President Zuma in a Lenin-like pose with his genitals exposed, is interesting in the context of this discussion. There were certainly those who dismissed the painting as “racist” because in their view, the white Murray was continuing “the shameful history and problematic ways in which colonial conquest stigmatised sexuality and desire…”. But others appropriated a “cultural” response to the painting stating that it was against Zulu culture to depict the genitals of an elder, and that the painting was deeply respectful of Zulu culture. Ayanda Mbulu has also depicted Zuma with his genitals exposed, and yet, there was no outcry against this painting raising the question about whether culture is used from time to time as means of silencing criticism? The male organ has long been used as a symbol of power, of rape and pillage, and within a few months of the controversy around The Spear, Nkandla began to appear in the headlines and has continued to do so as an example of the rape and pillage of the public purse by those in power.

While the Constitution guarantees freedom of artistic expression and thus would protect Murray’s right to paint and exhibit The Spear as part of his Hail to the Thief 2 exhibition mocking the ANC’s selling out of its liberation ideals, there were many who felt culturally offended, that the painting was un-African, that it was inconsistent with African values, beliefs and traditions. It is within these countervailing forces – Constitutional ideals on the one hand and culture on the other – that debates, contestation, arguments will and should occur, as part of social progress.

Similarly, while the Constitution outlaws discrimination on the basis of sexual orientation, there are many who believe otherwise, whether for particularly cultural reasons or for religious reasons (I would not separate the two as religious belief is fundamental to cultural identity). And debates, arguments and contestation in this regard must necessarily occur as part of our social progress.

De Vos, though, while claiming to believe in such dialogue and contestation, in reality does not, as exhibited by the manner of his participation in the public forum and in his subsequent blog!

 In the original email I received from the African Arts Institute I was told the discussion was aimed at gaining “a deeper understanding of perspectives on same sex love in relation to culture, tradition, identity politics and human rights”.

Exactly right! In a further email sent to all the speakers on the Friday three days before the debate, my colleague wrote “I would also like to re-iterate the primary question we would like to tackle in the debate – is same-sex love (or homosexual love) African or not? We are framing the question as such in order to elucidate the ways in which expressions of sexuality are understood from a cultural perspective. The question begs more questions – what does it mean to be African, how is one’s African-ness defined, what is African culture and how is it changing? The debate is aimed not to establish moral judgment on sexual preference and expression, but rather to explore its perceived and real intersections with culture, particularly within the African (and South African) context.”

This clearly explained where we were coming from as the African Arts Institute, to all the speakers.

I assumed the discussion would occur in a relatively safe space in which my basic humanity, my right to exist and flourish as a human being and my right not to be killed would not be treated as subjects open to legitimate discussion and debate. On Monday afternoon I received a call from one of the organisers and for the first time was alerted to the fact that I would share the podium not only with an artist and with a fellow academic but also with an Imam. The organiser told me that they foresaw sharp conflict as the Imam would argue that same sex love was un-African and against Islam. Although irritated by what I perceived to be a dishonest ambush, I nevertheless agreed to continue with my participation out of politeness and out of respect for those who would go to the trouble of attending the event.

Again, De Vos characterises what happened at the debate as if there was a general call for gays to be murdered. This is COMPLETELY FALSE!! As pointed out earlier, a member of the audience – we do not screen our audiences and ask them to state their beliefs prior to allowing them entry – expressed what he believed the Quran said about homosexuals having to be punished by death, but Iman Ismail Ngqoyiyana clearly and unambiguously disabused the speaker of that notion. De Vos seeks emotional sympathy from his gallery to paint the organisers and one of the panellists as advocates of the murder of gays (he believes that the beliefs of the Imam lead to the killings of gays and that AFAI is complicit by allowing him a platform to express his views), but he is being utterly dishonest in that the Imam did NOT at any stage call for or condone physical violence against gay people, so that we as AFAI certainly did not provide him with a platform to do so.

De Vos complains that he felt ambushed by being phoned beforehand to forewarn him that one of the panellists would probably be taking a position that same-sex love is un-African and against Islam. Imagine if we had not alerted De Vos to this; then he would really have had a reason to feel “ambushed!” By alerting him, he had the opportunity to withdraw, but he chose not to “out of politeness” and “out of respect for those who were to attend”. Out of politeness, my colleague forewarned him so that he could prepare accordingly. One would have hoped that thoughtleaders and activists in this sector would have the arguments on hand to deal with the expected views of the Imam, considering that these views are hardly new. It would hardly have been a “debate” if the three speakers were all from the gay community, and, in accordance with our intentions as clearly outlined above, it made sense to have someone present as clearly as possible a view that supported the notion that “homosexuality was un-African” and that others would offer counterviews. Otherwise, what would be debated on that subject? At the same time, we informed Imam Nqgoyiyana that indeed, there would be gay people on the panel, as well as in the audience.

I assumed that Mike van Graan, who chaired the panel, would not allow the event to degenerate and would create and defend a safe space in which rational and respectful discussion would remain possible. This did not happen. The Imam spoke about diseased fishes (what this had to do with the topic never became clear), quoted disapproving passages from the Koran and (as is often the case with men of the cloth) generally displayed a morbid obsession with the mechanics of sex.

I would hardly be the one to defend Imam Ngqoyiyana’s views, but it is ironic that De Vos questions what he had to say in reference to the topic when De Vos himself refused to discuss the topic, reprimanding AFAI for even hosting a debate with such a topic. But what goes to the very integrity and intellectual honesty of De Vos is his characterisation of the debate as one that “degenerated” and was not a “safe space” for “rational and respectful discussion”.

First, it is necessary to point out that the overwhelming majority of the audience was gay, or sympathetic to the gay community, certainly with regard to the questions posed and the responses to Imam Ngqoyiyana. Second, while the three gay speakers presented their views, there was no heckling, no commentary, no laughter or shaking of heads from those who might have disagreed with these presentations. This minority listened with respectful silence. But, while Iman Ngqoyiyana spoke, there were many vocal, disapproving responses from the audience. I ended my introduction to the debate by stating “Finally, this is an understandably heated subject, but I would like to appeal to all of us to seek to engage in the discussion with as much respect for each other as possible”.

The “rational and respectful” space was undermined by audience members vocally expressing their opposition to the Imam’s views while he was articulating them. It started to “degenerate” when a panelist expressed the view that Ebrahim (referred to earlier) had engaged in hate speech. As pointed out earlier, the Imam expressly “corrected” Ebrahim’s understanding of the Quran. The “rational and respectful space” was further undermined by at least one audience member – not a supporter of the Imam – interrupting me as the chairperson.

It is extremely ironic that De Vos characterizes the debate and forum as an unsafe, disrespectful and rational space, when in fact, it was the Imam who read his prepared speech to much vocal interjection, and when it was De Vos’ supporters who were primarily responsible for disrespectful engagement!

It is also extremely ironic that we had to convince Imam Ngqoyiyana not to withdraw from the panel after he had confirmed, as he was concerned that his would be a minority and unpopular view, and that he would come in for much stick. We assured him that we had had tense discussions around highly controversial subjects in the past. It was important for the debate, and for the learnings that would hopefully flow from the debate, that he participated. De Vos gives the impression that it was a forum in which the gay people present were under attack, and that I did nothing to protect them. The truth is that it was the minority view of the Imam and his handful of supporters that was under attack mainly, and it was my duty as chairperson to protect the Imam – whatever his views and however different they might have been to mine – and allow him the space both to articulate his position and to respond to questions without being interrupted or howled at.

A questioner stated as fact that Islam required homosexuals to be stoned to death and asked whether this was indeed what was required of Moslems in South Africa. The Imam said that this was indeed the majority view but that most South African Moslems would follow the minority view that holds that homosexuals should be re-educated to get us to turn away from our “perverted” practices. At no point did the Imam explicitly condemn (as outrageous and criminal) the idea that men and women who engage in same sex sexual practices should be stoned to death. Instead, he suggested that there were two legitimate schools of thought (one in favour of murdering homosexuals, the other not) but, when pressed he did concede reluctantly that he belonged to the more “moderate” school of thought and do not personally endorse murder.

Yet again, De Vos – whose views are held in high regard by many – brings his integrity and intellectual honesty into question. As explained earlier, the Imam explicitly corrected the audience member, Ebrahim, specifically stating that the Quran – unlike the Bible – does not call for homosexuals to be put to death. He explained that there were four schools of Islamic jurisprudence, three of which do indeed believe that homosexuality is punishable by death. South Africa’s Muslim community he said, subscribed to the fourth school of Islamic jurisprudence, that homosexuals should not be put to death, but that they be re-educated. De Vos describes the Imam’s concession in this regard as “reluctant”; I do not remember it as such, but this is a description that suits De Vos’ caricaturing and demonization of the Imam.

In contrast to De Vos’ view, a young man in the audience who described himself as gay, after the Imam had stated quite clearly that South African Muslims do not subscribe to the death penalty for homosexuals, spoke half to the audience, saying that often in these kinds of discussions, people talk past each other, not really listening to each other, being set in what they believed. Yet, for him, the fact that the Imam had stated that Muslims in South Africa do not support the murder of homosexuals, should be a starting point for engaging with the Imam and the Muslim community in South Africa, as possible allies in the fight against the violence committed against gay women in particular, but the gay community more broadly. This entirely reasonable and rational approach is clearly not one shared by De Vos who prefers the emotional demonization of the Imam (even for sins he did not commit) and of AFAI who provided him with a platform to commit the sins he did not actually commit.

(As an aside, it is strange that there is not more outrage in society and from the state      about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass? Is it because we have not entirely rejected the notion prevalent in European nations during the pre-Enlightenment theocratic era that religious rules trump the ordinary laws of the land?)

As an aside, why does De Vos persist in claiming that the doctrine espoused by Imam Ngqoyiyana endorses the murder of fellow human beings, when he specifically said that the Quran does not promote the stoning of homosexuals, and that the South African Muslim leadership and community do NOT endorse the murder of fellow human beings who are gay? De Vos is being utterly dishonest and misleading in this regard, which is hardly what one would expect from an academic, a thoughtful intellectual and an opinion maker.

When a fellow panellist as well as other attendees objected to this line of discussion, they were told that they were being intolerant of the views of others who happened to disagree with them.

That there was this line of discussion – that gays should be murdered – was simply not a line of discussion, but De Vos, clearly with his own or someone else’s axe to grind – tries to give the impression that I as chairperson, and by extension AFAI, expected – and demanded – of the audience that they tolerate the view that gays should be murdered. This is a blatant and self-serving untruth! At one stage, given the amount of heckling, I did make a general request for greater tolerance of views as per my introduction, but I specifically labelled as intolerant the audience member who interrupted me on more than one occasion.

The Imam and one of his supporters even claimed to feel victimised because members of the audience expressed their distaste of his bigotry and his spectacular lack of basic decency and humanity. (This is not surprising as bullies often claim to be victims when they are called out on their intimidation and persecution of others.)

Again, De Vos is blind to the irony of his views. He rejects the view of one of the Imam’s supporters that she felt victimised; so it’s absolutely fine for him and his supporters to express their disgust at the Imam and claim all kinds of victimisation, but not for someone who held a different views to theirs, to do the same. Clearly, bigotry is not peculiar to Imams nor to religious fanatics or believers; the tensions within the recent gay pride march attest to that. But while – in De Vos’ view, the Imam displayed a “spectacular lack of basic decency and humanity” – some of his supporters displayed exactly the same! It is too often the case that those who most demand tolerance and respect (often for highly legitimate reasons) are themselves incredibly intolerant and disrespectful. By no means all, but certainly quite a number in the audience that night were guilty of “a lack of decency and humanity” and I hardly get the impression that De Vos himself has a high regards for the Imam as “human”.

 After the event I felt tarnished and degraded for being forced to defend my right to exist in South Africa without fearing that I will be murdered in the name of God. It is unthinkable that in 2015 a body like the African Arts Institute would host a panel discussion which raised the question of whether men and women of different races who engage in sex should be stoned to death or whether they should rather be re-educated. It is also unthinkable that the African Arts Institute would invite Dan Roodt to take part in a panel discussion on whether black people are inherently intellectually and morally inferior to white people.

The professor clearly participated in a different panel discussion to the one we hosted, and to which we invited him. It has been stated clearly what the panel question was, why we were asking the question and what we hoped to get out of it. As for the Dan Roodt parallel, first, Dan Roodt’s views are that of an extreme minority, they are hardly mainstream. The views of Imam Nqgoyiyana on the other hand, are held by many people across the continent. It is precisely for that reason that these views need to be engaged in rational discussion, as difficult as it may be! Secondly, if for some reason, we were to invite Dan Roodt onto a panel on the subject mentioned by the professor, we have no doubt that they while they may be offended by the question, the people we would ask to debate the matter, would have the intellectual ability, the knowledge and personal confidence and security to be able to engage and expose Roodt’s beliefs. This, unfortunately, was not the case with De Vos on this particular panel.

Whether such speech constitutes hate speech or not (and as I have argued many times before, I am not convinced that hurtful speech is best countered by using hate speech legislation), it is not the kind of speech that belongs in a respected (supposedly progressive) public space. This is so because the speech has no value. It does not enlighten. It does not help us to think critically about how better to live in the world. It does not educate or allow us to understand how to deal with oppression and bigotry. It merely reinforces and perpetuates the most narrow-minded, and hateful types of fear mongering and persecution. It provides a platform for speech that directly threatens the well-being and survival of a vulnerable section of South African society.

The professor completely astounds me! While I am in no way defending Imam Ngqoyiyana’s presentation or his answers to questions, the purpose of the evening was not simply to allow Imam Ngqoyiyana a platform “for speech that directly threatens the well-being and survival of a vulnerable section of South African society”. He was not alone on the platform, and his views were by no means the majority view in the audience. The professor and his colleagues could have engaged Imam Ngyoyiyana’s views rather than simply assume a woe-is-us posture. In De Vos’ view, the Imam’s “speech has no value, because it does not enlighten, nor help us to think critically about how better to live in the world”. To be frank, neither did the presentation or the input of De Vos enlighten or help us to think critically about living better in the world. As stated before, precisely because Imam Ngqoyiyana has influence within the Khayelitsha community where black lesbians may be threatened, is this not sufficient reason to engage with him, to seek areas of alliance in order to recruit him in the fight against violent assaults on black lesbians? The Imam was sharing his views in a theatre in the city centre, with a relatively educated, middle class, mainly gay audience, hardly the audience that would “threaten the well-being and survival” of the gay community! Here was an opportunity for people like De Vos to engage the Imam, but De Vos chooses to ridicule him, to caricature his views, to accuse him of statements that he simply did not make. It would not surprise me if – based on his experience and how he was treated as a human being – the Imam is even more convinced of his position, or at least is not any more sympathetic to the gay community. If this is the case, then the gay community has lost a potential ally in Khayelitsha.

By hosting such an event, an organisation such as the African Arts Institute further legitimises widely held hateful views that create the environment in which many people believe it is justified to assault, rape and murder those of us who choose to love members of the same sex. It has potentially deadly consequences. To say that these views should not be given a platform by the African Arts Institute is not to be intolerant of free speech. It is to be intolerant of hate, bigotry and dehumanising language used by those who claim to speak on behalf of a cruel and vengeful God. In any case, it is not speech on behalf of any God I recognise. There is nothing wrong with being intolerant of the type of hatred and bigotry that may well have real and fatal consequences for some of our brothers and sisters, mothers and fathers and sons and daughters who happen to love differently from the colonial-cum-religiously imposed norm. It is an entirely different question whether the law should prohibit such speech and allow for the prosecution and imprisonment of those who engage in such hateful bigotry. To support the legal prohibition of certain types of speech would, to some extent, be intolerant of free speech. Except for the most extreme forms of hate speech, I am not in favour of such regulation because I am not sure it would achieve much and I fear regulation could be abused to limit speech which may well turn out to be of value.

De Vos – the professor – is clearly confused. On the one hand, he wonders why “there is not more outrage in society and from the state about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass?” On the other hand – “except for the most extreme forms of hate speech” – he is not in favour of regulation that prohibits certain types of speech. As I’ve tried to show repeatedly, firstly, Imam Nqgoyina did not articulate a doctrine that “endorses the murder of fellow human beings”; De Vos continues to mislead his readers with such dishonesty! But if he did, then this would certainly constitute hate speech, and the state would be obliged to regulate against such speech! If De Vos as a constitutional lawyer and legal expert believes that Imam Nqgoyiyana really did and does advocate a theological teaching that endorses the murder of gay human beings, then De Vos MUST surely advocate strongly for the state to ban such hate speech as it is intolerable to have such agitation towards murder by anyone. If De Vos does not do this, then he is as complicit in continuing to provide a platform for Imam Nqgoyiyana to spread his “hateful bigotry” as he claims the African Arts Institute was in providing the Imam with a platform. If he does not campaign for Imam Nqgoyiyana to be charged with hate speech, then De Vos is a cowardly hypocrite!

But De Vos clearly lives in a different world to the real one in which we as an institution have to engage. When we run workshops for young leaders from 13 African countries, and not a few of them hold views similar to that of the Imam, what are we to do? Ban them and put them on the next flight back to their respective countries? When young Xhosa men at a cultural policy workshop say that homosexuality is not part of their culture and another declares that same-sex love is not biblical, should we continue the workshop only with those whose views are not bigoted towards gays? If hundreds, perhaps thousands of imams and pastors are preaching that homosexuality is wrong, influencing millions of people in the process, do we ignore such bigoted preachers, because to engage them is to legitimise their views and beliefs? If such preachers genuinely care for the poor in their communities and take strong stands against xenophobia, are we to reject any relationships with them because they have reactionary views on same-sex love?   It is quite possible to be intolerant of hate, dehumanising speech and bigotry, and because of that, engage with those who may be guilty of these, in order to change them, and in so doing, to lessen the impact they have on those over whom they have influence. For De Vos in his privileged ivory tower, he may choose who to work with, and whom not to, who to listen and speak to, and whom not to; in the real world, life is more complex, requiring more nuanced engagement than the good-bad binaries of De Vos’ world.

However, who is allowed to speak on a specific platform speaks volumes about the ideology and political commitments of those who control the platform. When those who make such decisions believe it is entirely appropriate to host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated, it says just as much about their own lack of humanity and their moral failure as human beings and political actors than about those they invited onto the platform to spread their hatred. It is for that reason that I will not, under present conditions, accept an invitation to appear at an event organised by the African Arts Institute.

And with that, the dramatic, heroic professor ends with a flourish, tilting even more strongly at the offending and imaginary windmills, trying desperately not to fall off his horse. Given his lack of intellectual honesty and his complete inability to offer anything new that could inform our work as an Institute working in the highly contested and nuanced area of culture, it is highly unlikely that we will be inviting the professor to a forum that requires intellectual engagement. Just for the record – again – we, the African Arts Institute, did not host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated as alleged by the professor; we hosted a debate on the belief by a significant number of ordinary and influential people on the African continent that same-sex love is not consistent with African culture. We were hoping for research and insights that would debunk this, or for speakers to confront the belief head on and declare what conditions need to be created for same-sex love to be accepted as part of African culture, or at least for arguments that would undermine the key cultural/religious premises of this belief. But that is not what we got.

For the professor then to go on and say in his over-the-top, dramatic terms that the debate – which he thought we had, or which he had in his mind but which is not the debate we had – reflects poorly on our humanity and morality both as human beings and as political players, says a lot about him, and his (own or vicarious) axe that he has to grind. The truth is that among the staff of the African Arts Institute who were part of organising this debate, there are vastly diverse views on the subject. That De Vos uses his intellectually dishonest view about what took place that night to judge and call into question the morality and political commitment of my colleagues and myself, again reflect poorly on him as a human being, an “intellectual” and a political commentator. Fortunately, our credibility – just like our vision and mission – is not dependent on the fallacious, narrow, self-serving views of a supposedly learned professor. I have no doubt that we will lose some friends and supporters as a result of the professor’s blog, and from this response to it, but I am absolutely convinced that the very premise of his blog, and his characterisation of the debate, is dishonest and lacking in moral and intellectual integrity, as I’m sure the video evidence of the debate will attest to.

As far as the African Arts Institute is concerned, we will continue to interrogate this theme as it is of deep relevance to our work in the area of culture, development, human rights and democracy. Anyone who would like to contribute to the growth of theory and arguments around the theme of same-sex love in Africa, and its relevance – or not – to development and human rights, are more than welcome to do so. Our contact details are on our website www.afai.org.za

Mike van Graan

Those intolerant of bigotry do not invite bigots to speak

One of the favourite mantras of some free speech fundamentalists is that “the cure for bad speech is more speech”. But sometimes it is counter-productive, even wicked, to continue debating an issue when such a debate serves to promote and legitimise beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people. Sometimes the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform.

When I was invited by the African Arts Institute to take part in a panel discussion on “Same sex love in Africa”, I reluctantly agreed. I find it somewhat tedious and politically problematic to be asked to talk about the African continent and its people as if it is a monolithic space inhabited by people who are identical in every way.

The manner in which “Africa” (as a colonial construct) is deployed in the Western imagination to erase the beauty, vibrancy, individuality, vitality, agency and multiplicity of vastly different individuals living in different parts of our continent is galling and arrogant.

(This habit of thinking and speaking of “Africa” as a gigantic, blank space inhabited by smiling people patiently waiting under acacia trees for Madonna or Brangelina to adopt their children while lions roar prettily in the distance is perfectly captured by the mocking title of the magnificent website called “Africa is a Country”.)

I nevertheless agreed to take part in the discussion at the Artscape Theatre in Cape Town because I believe it is important to engage critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs and dogmas about the sexuality of the previously colonised and the marginalised and oppressed in society.

I do not, in principle, have a problem to talk about the harms caused by religious dogma and how we can begin to address the corrosive effects of this dogma on people living in different societies, cultures, and in different towns, cities and countries.

A good place to start is to recognise that the colonial conquest of the African continent facilitated the spread of Christianity and Islam throughout the continent.

If you are thus the kind of person who likes to show your disproval of certain beliefs or practices that you do not know or that you fear by claiming that they are “un-African” you might well need to start by conceding that Christianity and Islam are “un-African”.

The colonisers (animated by racist fears) invoked beliefs and dogmas borrowed from these religions to stigmatise as dangerous and degenerate sexuality and desire that did not conform to problematic, idealised, Western, norms in order to justify the policing of sex and desire through the enforcement of Western style criminal law and through the enforcement of religious dogma.

Reactions to Brett Murray’s The Spear painting reminded us again of this shameful history and the problematic ways in which colonial conquest stigmatised sexuality and desire (and pathologised black bodies more generally) in many parts of our continent.

In the original email I received from the African Arts Institute I was told the discussion was aimed at gaining “a deeper understanding of perspectives on same sex love in relation to culture, tradition, identity politics and human rights”.

I assumed the discussion would occur in a relatively safe space in which my basic humanity, my right to exist and flourish as a human being and my right not to be killed would not be treated as subjects open to legitimate discussion and debate.

On Monday afternoon I received a call from one of the organisers and for the first time was alerted to the fact that I would share the podium not only with an artist and with a fellow academic but also with an Imam. The organiser told me that they foresaw sharp conflict as the Imam would argue that same sex love was un-African and against Islam.

Although irritated by what I perceived to be a dishonest ambush, I nevertheless agreed to continue with my participation out of politeness and out of respect for those who would go to the trouble of attending the event. I assumed that Mike van Graan, who chaired the panel, would not allow the event to degenerate and would create and defend a safe space in which rational and respectful discussion would remain possible.

This did not happen.

The Imam spoke about diseased fishes (what this had to do with the topic never became clear), quoted disapproving passages from the Koran and (as is often the case with men of the cloth) generally displayed a morbid obsession with the mechanics of sex.

A questioner stated as fact that Islam required homosexuals to be stoned to death and asked whether this was indeed what was required of Moslems in South Africa. The Imam said that this was indeed the majority view but that most South African Moslems would follow the minority view that holds that homosexuals should be re-educated to get us to turn away from our “perverted” practices.

At no point did the Imam explicitly condemn (as outrageous and criminal) the idea that men and women who engage in same sex sexual practices should be stoned to death. Instead, he suggested that there were two legitimate schools of thought (one in favour of murdering homosexuals, the other not) but, when pressed he did concede reluctantly that he belonged to the more “moderate” school of thought and do not personally endorse murder.

(As an aside, it is strange that there is not more outrage in society and from the state about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass? Is it because we have not entirely rejected the notion prevalent in European nations during the pre-Enlightenment theocratic era that religious rules trump the ordinary laws of the land?)

When a fellow panellist as well as other attendees objected to this line of discussion, they were told that they were being intolerant of the views of others who happened to disagree with them.

The Imam and one of his supporters even claimed to feel victimised because members of the audience expressed their distaste of his bigotry and his spectacular lack of basic decency and humanity. (This is not surprising as bullies often claim to be victims when they are called out on their intimidation and persecution of others.)

After the event I felt tarnished and degraded for being forced to defend my right to exist in South Africa without fearing that I will be murdered in the name of God.

It is unthinkable that in 2015 a body like the African Arts Institute would host a panel discussion which raised the question of whether men and women of different races who engage in sex should be stoned to death or whether they should rather be re-educated.

It is also unthinkable that the African Arts Institute would invite Dan Roodt to take part in a panel discussion on whether black people are inherently intellectually and morally inferior to white people.

Whether such speech constitutes hate speech or not (and as I have argued many times before, I am not convinced that hurtful speech is best countered by using hate speech legislation), it is not the kind of speech that belongs in a respected (supposedly progressive) public space.

This is so because the speech has no value. It does not enlighten. It does not help us to think critically about how better to live in the world. It does not educate or allow us to understand how to deal with oppression and bigotry.

It merely reinforces and perpetuates the most narrow-minded, and hateful types of fear mongering and persecution. It provides a platform for speech that directly threatens the well-being and survival of a vulnerable section of South African society.

By hosting such an event, an organisation such as the African Arts Institute further legitimises widely held hateful views that create the environment in which many people believe it is justified to assault, rape and murder those of us who choose to love members of the same sex.

It has potentially deadly consequences.

To say that these views should not be given a platform by the African Arts Institute is not to be intolerant of free speech. It is to be intolerant of hate, bigotry and dehumanising language used by those who claim to speak on behalf of a cruel and vengeful God. In any case, it is not speech on behalf of any God I recognise.

There is nothing wrong with being intolerant of the type of hatred and bigotry that may well have real and fatal consequences for some of our brothers and sisters, mothers and fathers and sons and daughters who happen to love differently from the colonial-cum-religiously imposed norm.

It is an entirely different question whether the law should prohibit such speech and allow for the prosecution and imprisonment of those who engage in such hateful bigotry. To support the legal prohibition of certain types of speech would, to some extent, be intolerant of free speech.

Except for the most extreme forms of hate speech, I am not in favour of such regulation because I am not sure it would achieve much and I fear regulation could be abused to limit speech which may well turn out to be of value.

However, who is allowed to speak on a specific platform speaks volumes about the ideology and political commitments of those who control the platform. When those who make such decisions believe it is entirely appropriate to host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated, it says just as much about their own lack of humanity and their moral failure as human beings and political actors than about those they invited onto the platform to spread their hatred.

It is for that reason that I will not, under present conditions, accept an invitation  to appear at an event organised by the African Arts Institute.

Who will protect our Parliament against the President and his securocrats?

A press conference held on Tuesday revealed that ANC Chairperson and part time Speaker of the National Assembly (NA), Baleka Mbete, as well as former North West Premier and part time National Council of Provinces (NCOP) Chairperson, Thandi Modise, do not have a good grasp of either the architecture of the Constitution of the Republic of South Africa nor of the rules of Parliament which they are required to enforce impartially (but which they have chosen not to).

It is a little known fact among non-lawyers that the terms “separation of powers” and “checks and balances” are not to be found in the South African Constitution. However, the Constitutional Court, in a long line of cases, has held that the separation of powers doctrine (and the concomitant system of checks and balances) forms an integral part of the South African constitutional design.

The Constitution creates three branches of government (some argue it may create a fourth branch consisting of the Chapter 9 institutions) and allocates specific powers to each branch. This allows each branch to check the exercise of power by the other branches in order to ensure that no branch gains too much power. In theory this protects citizens from the abuse of power that inevitably results from the concentration of too much power in one institution or branch of government.

In modern democracies like South Africa (in which governance decisions have increasingly become complex and often technical in nature), the executive is by far the most dangerous branch of government. If the other branches do not vigilantly check the exercise of executive power and hold it accountable, the executive will threaten the health of the democracy as well as the rights and well-being of every person who lives in South Africa. (The Marikana massacre is the most bloody and extreme recent example of this phenomenon.)

The executive has direct operational control over the military and the other potentially repressive state institutions such as the police force and the secretive state security services with its network of spies and its ability to eavesdrop on the conversations of any citizen.

It also controls an army of civil servants who (in terms of chapter 10 of the Constitution) must execute the lawful policies of the government of the day but must remain politically impartial. However, many civil servants find this impossible to do because of an increasing conflation of the governing party and the state and because of the pressure to show loyalty to (and entertain the whims of) the head of the executive.

The problem of abuse of power by the executive is heightened in the South African system in which citizens do not directly elect the executive. Unlike the members of the NA (the only national institution democratically elected in direct elections by voters), the executive is formed at the whim of the President who, in turn, is indirectly elected (some will say, appointed) by the members of the NA.

In reality, at present the President is elected by the just over 4000 delegates who attend the ANC national elective conference every five years. However, to what extent these delegates represent the choices of the rank and file members of the party is unclear, because branches can be bought or otherwise manipulated to support one or the other candidate at the elective conference.

In order to safeguard our democracy against the dangerous and overweening power of the President and other members of his or her executive, the Constitution subjects the executive to the control of the legislature – in particular the democratically elected NA – as well as to the Constitution, enforced by an independent judiciary.

The President is not only elected by the NA, but can also be fired by it. The NA can also fire the cabinet. The NA can fire the President and/or the cabinet at any time for any reason it sees fit.

Section 42(5) of the Constitution empowers the President to summons Parliament to an extraordinary sitting at any time to conduct special business. When summoned, Parliament cannot refuse to gather, but in theory it retains the power vis-à-vis the President and his or her executive because it has the final say on any binding decision it is required to take.

Moreover, the President (or any other member of the executive or of the security apparatus) is not authorised to prescribe to Parliament how it should operate when it is called to such a special sitting or what decisions it should take.

This is made clear by section 45 of the Constitution, which states that the NA and the NCOP “must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council”. The President or members of the executive (include the police, military or state security) cannot rewrite these rules or circumvent them.

Section 57 and 70 of the Constitution also confirm that when the NA or the NCOP sit separately they are empowered to determine and control their internal arrangements, proceedings and procedures.

Section 56 and 69 further provide the NA and the NCOP with far reaching powers over the executive, stating that the NA or NCOP or any of their committees may:

  • summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
  • require any person or institution to report to it;
  • compel, in terms of national legislation or the rules and orders, any person or institution to comply with such a summons; and
  • receive petitions, representations or submissions from any interested persons or institutions.

This means the NA or NCOP can at any time summons the President (or any other person) to appear before it. If the President (or any other person) refuses to do so, the NA or NCOP can force them to appear by summoning him or her to do so. If the President (or any other person) refuses to appear when summonsed he or she would be in contempt of Parliament. In terms of the rules of Parliament the Speaker or Chairperson of the NCOP needs to grant permission before a person is summoned.

(Of course, given the fact that the ANC Chairperson and the President meet every Monday at Luthuli House and given that her loyalty to the party and its leader will – in the absence of strong principles – trump loyalty to the rules of Parliament, it is not likely that the Speaker will ever grant such permission to summon the President to the NA.)

As we all know (because the rule was flouted last year) NA rule 111 also requires the President to answer questions in the NA at least four times every year. The question sessions are supposed to be scheduled in terms of the Parliamentary programme. If the Speaker fails to schedule such sessions (as she indeed failed to do last year) she is flouting the rules of the institution that she purportedly heads.

Because much of the de facto power resides with the President and his or her executive (as they control the potentially all-powerful and repressive state institutions as well as the public administration), Parliament can only perform its functions and hold its own against the potentially repressive actions of the executive, if the Speaker and Chairperson of the NCOP vigilantly protect Parliament from interference by the executive and protect the sanctity of the institution.

When Speaker protects Parliament in this manner, she is protecting democracy itself. She is protecting the democratic space and the right of voters to be represented in a robust and vigilant manner by the MPs representing the political parties for whom voters cast their ballots. If she fails to protect the sanctity of Parliament against the overbearing power of the executive, she is unlawfully surrendering our democratic space to the whims of unelected bureaucrats, shadowy securocrats or politicians who serve at the pleasure of the President, not at the pleasure of the voters.

It is to that end that the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004 specifically states in section 3 that:

The Speaker and the Chairperson [of the NCOP], subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.

The Speaker and the Chairperson cannot legally abdicate this control over Parliament to anyone. It cannot delegate their powers to the Minister of State Security, any of its spies, the South African Police Service or to any other government department. This fact is further underscored by section 4(1) of the Act, which states that:

Members of the security services may (a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or (b) perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.

When Baleka Mbete therefore suggested to journalists on Tuesday that she was not in control of the security arrangements at Parliament during SONA, she was admitting that she (along with the Chairperson of the NCOP) had failed to comply with section 3 and 4(1) of the Act.

Mbete said at the press conference that during a briefing on security plans for the state-of-the-nation address, “we became aware that there was a plan for certain equipment to be deployed”. But she admitted that:

It is an item we received as a report along with many other reports, without necessarily knowing the detail, in particular [the] effects, because it was an item dealing with what measures had to be taken for the protection, in particular, of the head of state and the deputy president.

This means that if the Speaker was being truthful she was admitting that she was unaware of the detail of the actions of the potentially repressive state institutions in the Parliament when she was legally bound to give permission for their actions and retain control over these actions. She had abdicated her legal responsibility, and had thus forsaken her Constitutional duty to protect the legislature against encroachment by the executive branch of government.

Her political loyalty to the head of the executive branch of government thus trumped her loyalty to the Constitution and her duty to uphold the law. It made her position (and that of the Chairperson of the NCOP) untenable.

Both have a duty to resign forthwith. That they won’t do so and won’t be forced to do so by the majority party, tells its own story.

SONA chaos: preliminary legal and strategic points

Your response to the events which occurred around the President’s State of the Nation Address (SONA) last night may well depend on whether you are an EFF supporter, an ANC supporter, or whether you judge events according to the principles of open democracy embodied by our Constitution. In the name of healthy public debate (dream on, I hear you say), I post my first thoughts about the SONA events, which I wrote for my Facebook page. 

It is not good for Parliament or for a democracy when unidentified individuals (who may or may not be police officers or soldiers) use violence to physically remove rowdy elected members of Parliament from the National Assembly Chamber. It seems to me the Speaker, the EFF as well as the unidentified security personnel at best behaved unwisely and at worst in contraventions of the various rules and regulations that govern their conduct.

First, the jamming of the cell phone signal in the House and the alleged involvement of the Department of State Security in jamming the signal (which has not been confirmed or denied) was both outrageous and illegal. It is illegal to scramble a cell phone signal as ICASA regulation (published in Government Gazette 24123, from November 2002) prohibits it. It is also in conflict with provisions of the Constitution, which allows the public and the media access to the proceedings of Parliament and only allows reasonable limitations on it.

If Department of State Security was involved (as suggested by several journalists) it is also a shocking breach of the separation of powers doctrine. The members of the Executive have no business involving themselves in the operation of Parliament. It is like the Director General for Home Affairs taking over the role of the Speaker.

Second, (and this is my personal view) I did not like the fact that the Speaker – employing kragdadigheid tactics which reminded me of a previous era – seemed overeager to call in the security services to have the EFF members removed and “taught a lesson”. It looked as if it was all planned and done according to a script. Using the police to teach political opponents a lesson (or creating the perception that you are doing this) is in conflict with the spirit of a constitutional democracy.

Allowing the EFF to go ahead, suspending the proceedings and demonstrating to all voters that the EFF was not prepared to act in terms of the rules would, in my opinion, have been the constitutionally desirable and politically most astute thing to do. Making martyrs of political opponents, on the other hand, is usually not a winning political strategy.

But was the Speaker legally authorised to send security personnel into the Parliament? Section 4(2) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act states:

When there is immediate danger to the life or safety of any person or damage to any property, members of the security services may without obtaining such permission enter upon and take action in the precincts in so far as it is necessary to avert that danger. Any such action must as soon as possible be reported to the Speaker and the Chairperson.

As there was no immediate danger to the life or safety of any person or damage to any property, the section does not apply. However, that is not the end of the matter as section 11 of the Act states:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

A disturbance is defined as: “any act which interferes with or disrupts or which is likely 10 to interfere with or disrupt the proceedings of Parliament or a House or committee”.

If the “person” referred to in section 11 includes any MP and if it is not limited to non-MPs, it would mean that once a disruption takes place, the Speaker can ask security services to enter the Chamber and remove MPs. However, it is not entirely clear whether section 11 covers MPs. The Constitution prohibits the arrest of MPs for anything they say in Parliament, so if section 11 allows for the arrest of MPs it would clearly be unconstitutional.

Further, the Act distinguishes in various places between “person’s” and MPs, which may cast doubt on whether section 11 applies to MPs.

If we assume that section 11 does cover MPs (a court will ultimately have to decide this point), the section must be interpreted narrowly so as to give effect to the provisions of the Constitution, specifically those sections guaranteeing the privileges of MPs and protecting their right to free speech. Section 11 must thus be interpreted to interfere with the free speech of MPs and with their privileges as little as possible, given what meaning the words are reasonably capable of meaning.

This suggests, I would argue, that a disruption which could trigger security force involvement would have to be interpreted to mean a situation where an MP or MPs act in such a way that it clearly renders it impossible for the House to continue with its business. I am not sure raising (what were clearly irrelevant and ill-conceived points of order or challenging the rulings made by the Speaker) rise to the level of a constitutionally valid “disruption”. At some point it may have been the case if the Speaker had allowed the EFF members to continue, but I am not sure it was the case when the Speaker ordered the removal of some EFF MPs.

But this is a legally grey area, so reasonable people may well differ on this until a Court clarifies the matter.

In any case, I am one of the voters who are put off by some of the antics of the EFF. I have no problem with EFF members raising points of order (as they were entitled to do by the rules). However, SONA is about more that Jacob Zuma – it’s about the President and Parliament as a constitutional entities. Continuing to raise points of order after the Speaker made her ruling to disallow it (which she was entitled to do in terms of the rules, even if she struggled to justify this) pushed the boundaries of what we should expect of our elected representatives.

That said, the security forces were authorised by the Speaker (whether validly or not) to remove Floyd Shivambu and Julius Malema from the chamber. As far as I am aware, they were not ordered to remove other EFF MPs from the chamber. These members cannot be collectively punished for what their leaders do (we do not live in Israel) so removing them (without explicit orders of the Speaker) must have been illegal unless somebody life was being threatened and section 4 of the Act would have kicked in.

These are the legal niceties. But there may be a broader point about the quality of our constitutional democracy and the manner in which people in power overreact to challenges to their authority, that come into play here.

If the Speaker had been a wiser person and had suspended proceedings and had said we only proceed once Julius and Floyd leaves the Chamber – all while South Africans waited impatiently for the SONA to proceed – the EFF antics would have started to irritate many voters. I am not sure most voters would continue to have sympathy for actions by MPs that go beyond what (at least arguably) could be justified by the rules of Parliament.

In the end, it is voters (and not the Speaker or security forces) who serve as the ultimate check on MPs and their behaviour. Where MPs realise they are losing the sympathy of the public, they will almost certainly moderate their behaviour (or am I far too optimistic about the level-headed nature of voters and MPs?). Placing more trust in the slow wheels of democracy and in the voters and less in the brutal exercise of militarised state power, would therefore, in my opinion, have been far wiser.

It will very seldom (if ever) be good for democracy to allow police officers to be deployed to suppress the speech of democratically elected members of Parliament. It matters not whether such members represent the majority of voters or a minority.

Yes, it would have been a bother. The President might have had to read his speech from a TV studio or we might have had to wait another 30 minutes for him to read the speech from the Assembly podium. But who said democracy is not sometimes a messy affair? The President is a politician used to the rough and tumble of politics, so surely it is not as if he would have been dealt a mortal blow if the EFF had been given more rope to hang themselves?

This is my initial view. But my view is perhaps less important than the views of the millions of voters who must decide who to vote for ion the upcoming local government and (eventually) national elections.

What do you think?