Constitutional Hill

Xenophobic attacks: apartheid-thinking alive in South Africa

The attacks on foreign owned businesses in Johannesburg last week and the refusal of many South Africans to acknowledge the xenophobic impulse behind these attacks – as well as the odious justifications for such attacks – are, sadly, not that surprising. After all, the stench of apartheid-thinking (and the false sense of South African exceptionalism that it reflects) lingers on twenty years after the formal end of apartheid.

A few years ago I was sitting at OR Tambo airport, waiting to board a flight when a young man in a well-cut grey suit, impeccably pressed white shirt and colourful tie, came over to greet me. He had been one of my students at the University of Western Cape, he told me, and was now a Deputy Director General in one or other government department.

I was bursting with pride. I always feel terrific when I hear of the successes of a former student.

“Where are you off to,” he asked as we sipped our drinks.

“Addis Ababa,” I said.

“Oh, you are going to Africa,” he replied, raising his left eyebrow and flashing a sceptical grin. “Good luck with that, chief.”

Here we were in Johannesburg – a “World Class African City”, as the slogan would have it – and my interlocutor (who would be classified as “African” in terms of Employment Equity legislation) was suggesting that I was venturing into a scary and dangerous place called “Africa”, a place very different from Johannesburg where South Africans stayed and belonged.

The comments made me feel deflated. I had clearly failed this former student, who should never have graduated without a more accurate and confident sense of South Africa’s place on our continent.

Of course, the attitude that South Africa is not fully part of the African continent and (in its way) is different from other African countries, permeates the thinking of many South Africans.

Driving home from work and listening to the business programme, I often hear this or that CEO of a large company tell us listeners that his company (it is always a man) has an “Africa strategy” and that it is planning to “expand into Africa”. (Imagine a CEO from the USA talking about plans to expand into America.)

This feeling of apartness from the rest of our continent and from its people (exhibited by some, but obviously not all, South Africans) must surely be partly blamed on the political isolation of South Africa during the apartheid years. Those who lived in exile or often met up with family or friends in exile must have had a different experience. But those of us who remained on the southern tip of Africa with our “colonialism of a special type” were taught very little about the rest of our continent and about its people.

When freedom arrived in South Africa many of us knew more about Jan van Riebeeck, Die Groot Trek, the unification of Germany and the French revolution than we did about the struggle against colonialism in Africa. How many knew much about the lives of Kwame Nkrumah, Patrice Lumumba or Thomas Sankara?

Some South Africans have probably also internalised some of the racist thinking on which the apartheid regime was built. It would be strange if many of our minds had not been partly colonised by ideas of supposed “Western” superiority. No wonder some of our compatriots still fear, hate or despise foreigners from the rest of our continent, while showing no such fear, hatred or scorn for foreigners from Europe or the USA.

Apartheid may be formally a thing of the past, but some of the dangerously destructive and hateful ideas on which that ideology of supremacy was built linger on in the minds of some South Africans. It may therefore not be that surprising that some South Africans have been willing over the past week to excuse or justify the Johannesburg attacks on businesses owned by fellow Africans.

The drafters of our Constitution – many of them having experienced the hospitality of Africans across our continent in years of exile – evidently never shared this fear, hatred and prejudice towards foreigners from the rest of the African continent. On the contrary, perhaps mindful of our past and the role played by fellow Africans in assisting our liberation movements, the Constitution protects foreigners who enter South Africa – regardless of where they come from or how they landed here.

This is so because most of the rights in the Bill of Rights (with the exception of rights like the right to vote and the right to citizenship) are guaranteed for “everyone”.

“Everyone” includes immigrants, permanent residents or those who live in South Africa on temporary work or study permits. In Lawyers for Human Rights v Minister of Home Affairs the Constitutional Court found that foreigners who have not entered South Africa legally are also protected by all the rights in the Bill of Rights which apply to “everyone”. This is so because at the heart of the Bill of Rights is the idea that each individual possesses an inherent human dignity, is of equal moral worth and, hence, cannot be treated differently just because we dislike or fear him or her or have made assumptions or generalisations about a person because of where he or she was born.

In the words of Judge Nugent in the Supreme Court of Appeal (SCA) judgment of Minister of Home Affairs v Watchenuka:

[Human] dignity has no nationality. It is inherent in all people, citizens and non-citizens alike, simply because they are human beings. And while that person happens to be in this country, for whatever reason, [their human dignity] must be respected, and is protected, by section 10 of the Bill of Rights.

That foreign nationals are protected by our Constitution is not surprising. They are often some of the most vulnerable people in our society, some having fled war zones, economic hardship or political persecution.

The argument that foreigners should be treated differently and deserve to be discriminated against, vilified and persecuted because they do not play their part to build the country, is also factually incorrect. As the Constitutional Court pointed out in Khosa and Others v Minister of Social Development and Others foreign nationals contribute to the welfare system through the payment of taxes (at the very least by paying VAT on all goods they buy). Many also contribute to the economy in other ways, enrich our culture and provide needed skills.

Besides, even when some foreign nationals are poor and contribute little in the form of taxes, the value of Ubuntu enjoins us to treat people equally, regardless of their country of origin. In the words of Justice Yvonne Mokgoro in the Khosa judgment:

Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the well-being of the community as a whole. In other words, decisions about the allocation of public benefits represent the extent to which poor people are treated as equal members of society…  A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational.

The Constitutional Court judgment in Koyabe v Minister of Home Affairs illustrates the general attitude towards foreign nationals demanded from us by the Constitution. Ruling that foreign nationals are entitled to reasons for a decision declaring them illegal foreigners in terms of the Immigration Amendment Act, the Court made the following observation:

In our constitutional democracy, officials are enjoined to ensure that the public administration is governed by the values enshrined in our Constitution. Providing people whose rights have been adversely affected by administrative decisions with reasons, will often be important in providing fairness, accountability and transparency. In the context of a contemporary democratic public service like ours, where the principles of batho pele, coupled with the values of ubuntu, enjoin the public service to treat people with respect and dignity and avoid undue confrontation, the Constitution indeed entitles the applicants to reasons for the decision declaring them illegal foreigners.

It is, of course, easy to blame foreigners for all the ills that beset South Africa. It’s easy to pick on a vulnerable minority and to pretend that all will be well if only we could rid ourselves of the group targeted for attack or extermination. It is easy to conjure up hate-filled stereotypes of fellow Africans to justify their persecution.

But it is intellectually lazy and dangerous. Instead of confronting problems head on, such victim-blaming allows us to stick our heads in the sand. It also endangers the lives of fellow Africans and destroys communities.

But just as important, it demeans us all when we condone the persecution of our fellow human beings. In the words of Justice Albie Sachs in Port Elizabeth Municipality v Various Occupiers “[o]ur society as a whole is demeaned” when action “intensifies rather than mitigates” the marginalisation of vulnerable people in our society.

In short, it reminds us that apartheid-thinking continues to live – like a dangerous virus – in the brains of quite a few South Africans.

DA SMS judgment: what the court really found

How robust are politicians and political parties allowed to be when they engage in election campaigning? In the absence of a court finding to that effect, can one party call another party or its leaders racist? Can one candidate call another dishonest or callous without clearly stating that this was just his or her opinion and then setting out the factual basis for such an opinion? In the recent Constitutional Court judgment of Democratic Alliance v African National Congress and Another the majority of judges held that the Electoral Act and Electoral Code would normally allow such robust forms of speech. The minority judgment had a more restrictive view.

Last year before the general election the Democratic Alliance (DA) sent out an SMS during the election campaign which stated: “The Nkandla report shows how Zuma stole your money to build his R246m home….”

The African National Congress (ANC) approached the High Court for an interdict and other relief on the basis that the DA was not entitled by our law to distribute the SMS. The ANC relied on section 89(2)(c) of the Electoral Act and/or item 9(1)(b) of the Electoral Code, which prohibit any registered political party or candidate from publishing any “false information” with the intention of influencing the conduct or outcome of an election.

The majority of judges of the Constitutional Court have now rejected the ANC claim. Five judges (Justices Cameron, Froneman, Khampepe, Moseneke and Nkabinde) found it unnecessary to answer the question of whether the statement contained in the SMS was false or not. Instead, it found that the SMS expressed an opinion, not factual information, and was hence not prohibited by section 89(2)(c) of the Electoral Act or item 9(1)(b) of the Electoral Code.

The approach of these five justices towards the importance of freedom of speech during an election campaign differed markedly from that of the minority judgement. The five judges argued that the suppression of speech during an election would have “severely negative consequences” on an election, as it would “inhibit valuable speech that contributes to public debate and to opinion-forming”.

As the judges pointed out:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That 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.

The justices argued that during an election campaign, assertions, claims, statements and comments made by one political party will be “countered most effectively and quickly by refuting them in public meetings, on the internet, on radio and television and in the newspapers”. The robust protection of freedom of expression during elections thus enhances, and does not diminish, the right to free and fair elections. That is why the relevant sections of the Electoral Act and the Electoral Code had to be interpreted in a manner that would limit freedom of expression as little as possible.

A minority of three judges (Justices Zondo, Jafta and Leeuw) seemed to focus more on the alleged threats posed by robust but potentially untrue or difficult to prove expression on the running of free and fair elections. For these judges elections cannot be free and fair where political parties or politicians are allowed to make statements about opponents that are not factually true, or not clearly couched as opinion based on true facts that are either well known or that are mentioned by the speaker when he or she expresses an opinion.

To provide a pertinent example: the minority seems to believe that a free and fair elections would be endangered if a politician was allowed to state that X was racist or that party X was racist – unless the politician clearly stated that he or she was expressing an opinion and referred to the factual basis for the expression of the opinion.

Whether this view is at all plausible in a vibrant democracy is not clear to me. If the minority view were to be sustained many of the views expressed by politicians during an election campaign would become illegal. If the minority view were upheld, many politicians (of all political parties) would face a ten-year prison sentence for expressing views that are false, partly false or that are impossible to prove as being true. As Justice Van der Westhuizen pointed out (in a separate majority opinion in which Madlanga concurred):

In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less-than-accurate sound bites all the time, and are given a wide berth to do so. Perhaps fairly little of what electioneering politicians say is wholly incapable of being labelled as ‘false’ in one way or another.

For me what lies at the heart of the disagreement between the two majority opinions, on the one hand, and the minority opinion, on the other, is the trust the majority judges place in political parties to debunk the wild accusations of their opponents andthe trust they place in voters to take many of the claims made by politicians with a pinch of salt. The two majority judgments seem to accept that political discourse is often infused with rhetoric and false or only semi-true claims or claims that cannot easily be proven, but that voters are aware of this.

The minority judgment seems to be premised on the idea that the law should prohibit such forms of expression to protect voters from the political rhetoric that flies around during election campaigns. In my view the minority holds a slightly patronizing view of voters – as if we are unable to distinguish between political rhetoric masquerading as fact and actual fact. As if we must be protected by the law from being exposed to such rhetoric.

In any event, the five judges who delivered the main judgment for the majority interpreted the relevant provisions of the Electoral Act and the Electoral Code narrowly to limit the kind of speech that would be prohibited by it.

Pointing out that the Electoral Act imposes tough criminal penalties (up to ten years in prison) on anyone found in breach of section 89 of the Act, the judges suggested that the prohibition on false information needed to be interpreted narrowly. As such, the judges suggested that section 89 was designed to protect the mechanics of the conduct of an election: voting, billboards, ballot papers, election stations, observers, and vote counts.

As the judges explained, the kind of statement that would constitute the provision of “false information” would be a statement falsely informing voters that a voting station had been closed. False statements that a candidate for a particular office has died, or that voting hours have been changed, or that a bomb has been placed, or has exploded, at a particular voting station, or that ballot papers have not arrived, or omit a particular candidate or party, would all have the effect of jeopardising the practical mechanics of securing a free and fair election.

Contested statements whose correctness could not be proven would not, according to this view, derail the free and fair election because voters (with the help of other political parties) would distinguish between wild claims and proven facts.

According to the 5 justices the section was not intended to limit the ability of politicians or a political party to make statements about their opponents that may well be difficult to prove as fact: say, that X or the party she belongs to is anti-poor, or anti-black, or callous, or corrupt.

However, the five judges said that it was not in fact necessary to go as far as finding that section 89(2) does not prohibit the dissemination of any information aimed at influencing voters’ views about opposing parties. As the section only prohibits “false information”, all the court had to do was to decide whether the SMS constituted fact or opinion. If it contained opinion and not a statement of fact, it was not covered by the section and was thus not prohibited.

The justices held that the SMS fell outside the ambit of section 89(2) because it was not a statement of fact but an interpretation of the content of the Public Protector’s Report on Nkandla. The SMS did not state as fact that the Report found President Jacob Zuma guilty of theft. What it did was to say that the Report “showed” how the President “stole your money”. This was the opinion of the DA, not a fact.

The minority disagreed with this view. Relying extensively on apartheid era precedent from the then Appeal Court, the minority argued that the SMS constituted a statement of fact, not an opinion and, hence, contravened section 89(2) of the Electoral Act. A politician or party would fall foul of the relevant section of the Electoral Act and the Electoral Code unless it could clearly indicate that it was expressing an opinion and not stating a fact and it further provided the voters with the information on which the opinion was based.

In terms of this minority view it would be illegal to say that party X or candidate X was racist. But it would be legal to say in your opinion party X or candidate X was racist because, for example, X used the “k” word on such and such a date, or party X only had .01% black members or had no black leaders or party X had such and such a policy that discriminated against black people.

On this basis the minority found that the DA SMS on Nkandla was not phrased as an opinion but as a fact and that its statement of fact was false.

In contrast Justices Van der Westhuizen and Madlanga found that it did not matter whether the statement was one of fact or opinion (as, in any case, it would not always be easy to distinguish between the two), but rather “whether the statement is purporting to describe a readily falsifiable state of affairs which poses a real danger of misleading voters and undermining their right to a free and fair election”.

The judges then examined the content of the SMS to determine whether it could – on a generous interpretation – be said that the claim contained in the SMS was true. Unlike the other judges Van der Westhuizen and Madlanga found that the claim could possibly be considered true. The judges then concluded:

According to the Nkandla Report, there was “misappropriation” of taxpayer money. The President benefitted from it. The misappropriation appears to have been tacitly accepted and in certain circumstances caused by the President, as set out in the Nkandla Report. The Nkandla Report seems to “show” that the President at least accepted actions, which resulted in the misuse of taxpayer money, which should not have been used on the project. It does not indicate that the President intended to return the appropriated money. The conduct alleged in the Nkandla Report does fall under a broadly conceived but reasonably possible meaning of the word “stole”, used in the context of an election campaign.

It is important to note that even justices Van der Westhuizen and Madlanga did not find that President Zuma is a thief. They could not do so as a court had not found the President guilty of theft. Neither has the Public Protector found in her Report that the President had stolen any money.

What the justices did was to say that theft does not only have a technical legal meaning. For example, you can say colloquially that a cell phone company is robbing you blind by imposing their exorbitant rates on you. This does not mean the company has been found guilty of theft or armed robbery, but that you believe the company is wrongly inflating its prices in a manner that disadvantages you.

In any case, although the judgment of the majority has been hailed as a victory for freedom of expression during election campaigns, I am not sure it will make a big practical difference to the robustness of speech during election campaigns in South Africa.

This is because during past election campaigns in South Africa politicians and political parties have often made claims about their opponents not couched as opinion and not based on clear evidence. Up until now they have not faced any consequences for making often wild and even spurious claims about opponents.

Elections are often fought via sound bites (X is racist!; Y is anti-poor!; Z is corrupt!) and as Justice Van der Westhuizen pointed out “fairly little of what electioneering politicians say” in such sound bites is likely to be completely true.

European Court often condones restrictions on free speech to accommodate “sensitivities”

In the wake of the shocking murder of journalists and innocent bystanders in Paris last week, many commentators have extolled the virtues of the unfettered right to freedom of expression. But freedom of expression is limited in all democracies. The European Court of Human Rights often condone restrictions imposed on freedom of expression by democratic governments across Europe, finding that such restrictions comply with the provisions of the European Convention of Human Rights. I have dug up a few examples to illustrate this rather obvious, but often ignored, point.

In 2013 Chelsey Manning was convicted by a United States court of violating the Espionage Act and other offenses, after releasing classified documents eventually published on Wikileaks. Manning is serving a 35-year prison sentence for her “crime”. But it is not only in the US where freedom of expression is often restricted for political, religious or so called “moral” reasons.

In what follows I provide examples of recent freedom of expression judgments of the European Court of Human Rights that demonstrate that across Europe courts often justify restrictions on freedom of expression and that Europe’s highest human rights tribunal regularly upholds such restrictions.

This means that it may not be accurate to imply (as some – but not all – commentators on the Charlie Hebdo tragedy have done) that any state that imposes limits on freedom of expression to accommodate the religious sensitivities of a section of the population would in effect condone religious tyranny and intolerance.

Otto-Preminger-Institut v Austria (1994)

In 1985, at the request of the Innsbruck diocese of the Roman Catholic Church, an Austrian public prosecutor instituted criminal proceedings against Otto-Preminger-Institut’s manager for “disparaging religious doctrines”, an act prohibited by section 188 of the Austrian Penal Code for advertising and showing a film Das Liebeskonzil (“Council in Heaven”).

The authorities subsequently seized the movie. It was the seizure of the movie and the legal provision that authorised this that was challenged before the European Court of Human Rights on the basis that it unjustifiably infringed on article 10 of the European Convention of Human Rights. Article 10(1) states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Das Liebeskonzil portrays God as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. The adult Jesus Christ is portrayed as a low-grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting.

Finding that the seizure of the movie did not infringe unjustifiably on the right to freedom of expression the Court took note of the fact “that the Roman Catholic religion is the religion of the overwhelming majority of” the community in which it was shown.

In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.

Leroy v France (2008)

In 2002, the French cartoonist Denis Leroy was convicted for complicity in condoning terrorism for drawing a cartoon representing the attack on the twin towers of the World Trade Centre, with a caption which parodied the advertising slogan of a famous brand: “We have all dreamt of it… Hamas did it”.

The conviction was secured in terms of article 24, section 6 of the French Press Act of 1881, which penalises, apart from incitement to terrorism, also condoning (glorifying) terrorism.

The Court argued that through his choice of language, Leroy commented approvingly on the violence perpetrated against thousands of civilians and diminished the dignity of the victims, as he submitted his drawing on the day of the attacks and it was published on 13 September.

According to the Court, the cartoon had provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order in the region. In the circumstances the European Court of Human Rights found that the conviction constituted a permissible limitation on the right to freedom of expression protected by article 10 of the European Convention of Human Rights.

Mouvement Raëlien Suisse v Switzerland (2012)

The aim of the Raëlien movement is to make the first contacts and establish good relations with extra-terrestrials. The Raëlien Movement’s followers believe that scientific and technical progress is of fundamental importance and that cloning and the “transfer of conscience” will enable man to become immortal. In that connection the Raëlien Movement has expressed opinions in favour of human cloning.

In 2001 the Swiss arm of the movement was denied permission to launch a poster campaign on the basis that the Raëlien Movement was a sect and engaged in activities that were contrary to public order (ordre public) and immoral.

The movement wanted to put up posters with the heading: “The Message from Extra-terrestrials”. At the very bottom was the phrase “Science at last replaces religion”.

The European Court confirmed the legality of the prohibition on the distribution of the posters, noting that the movement were still able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes.

Ï.A. v Turkey (2005)

In 1994 the applicant was convicted of blasphemy against “God, the Religion, the Prophet and the Holy Book” after publishing a book criticising the beliefs, ideas, traditions and way of life of Anatolian Turkish society “by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit”.

The book contained passages that implied “a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam”.

The European Court on Human Rights declined to find that the conviction constituted an unjustifiable infringement on the right to freedom of expression protected in article 10 of the Convention of Human Rights.

Noting that the impugned action against the author was “intended to provide protection against offensive attacks on matters regarded as sacred by Muslims” it held that the measures “may reasonably be held to have met a ‘pressing social need’”.

Wingrove v The United Kingdom (1996)

Mr Nigel Wingrove, a film director, made a video entitled Visions of Ecstasy, which he hoped to distribute to interested people across the United Kingdom. The action of the film centres upon a youthful actress dressed as a nun and intended to represent St Teresa.

It begins with the nun, dressed loosely in a black habit, stabbing her own hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground.

The second part shows St Teresa dressed in a white habit standing with her arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St Teresa’s psyche, slowly crawls her way along the ground towards her. Upon reaching St Teresa’s feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her.

The British Board of Film Classification refused to authorise the lawful distribution or showing of the movie due to its “obscene” nature and because the movie was “blasphemous”. Although it was not blasphemous to speak or publish opinions hostile to the Christian religion if the publication is “decent and temperate”, “the tone, style and spirit” of the movie was “bound to give rise to outrage at the unacceptable treatment of a sacred subject”.

The European Court of Human Rights found that “it was not unreasonable” for the UK authorities to refuse to classify the movie for distribution. Although this amounted to a complete ban on the film’s distribution, “this was an understandable consequence” of the blasphemous nature of the movie.

The Court thus found that the banning of the film was justified as being necessary in a democratic society within the meaning of paragraph 2 of Article 10. This paragraph states that:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

These examples suggest that many states across Europe pass laws or impose judicial limits on free speech to accommodate the religious and moral sensitivities of members of their societies. Europe’s highest human rights tribunal does not always view these restrictions as threatening basic democratic freedoms on the continent. This suggest that reasonable people may well differ on the necessity to limit speech to accommodate religious and other “sensitivities”.

Many of us may well disagree with the latitude shown by the European Court of Human Rights towards such limitations. We may prefer a more expansive interpretation of free speech and a more restrictive interpretation of the justifiable limitations on freedom of expression.

However, any relatively informed person will have to think twice before arguing that any state that limits freedom of expression to accommodate the religious sensitivities of a section of the population would condone religious tyranny and intolerance or that demands for such limitations itself constitute an attack on freedom, liberty and democracy.

Did the politics of patronage require suspension of the Hawks boss?

When political and economic patronage (instead of ideology) becomes the glue that holds a governing party together, it becomes ever more difficult for the leaders of that party (no matter how honest and principled they might be) and the government they lead to obey legal rules and to provide strong support for the constitutional institutions which the party helped to create and which, in principle, it had always supported and respected. The current turmoil at the Hawks raises questions about whether patrimonial politics within the ANC has now reached this point.

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Pic: Esa Alexander, The Times

Shortly after Jacob Zuma was elected President of the ANC, the ANC-led government abolished the Scorpions anti-corruption unit because it was pursuing more than 700 fraud and corruption charges against the President of the party. It replaced the Scorpions with a toothless body, which it ironically christened the Hawks.

The destruction of the Scorpions can be viewed as a pivotal moment in what Professor Tom Lodge in a recent article in African Affairs calls the apparent transformation of the ANC from a rule-regulated, mass-based party into an organisation mostly shaped by personal financial and other interests. As Lodge argues:

Increasingly within the ANC, leadership behaviour appears to be characterised by neo-patrimonial predispositions and, while formal distinctions between private and public concerns are widely recognised, officials nevertheless use their public powers for private purposes. Other symptoms of neo-patrimonial political behaviour have also appeared. There is factionalism, that is, the emergence of internal rival groups constituted by personal loyalty rather than shared ideological beliefs. Another manifestation is the affirmation by the ANC leadership of ‘traditionalist’ representations of indigenous culture, whereby moral legitimation is sought more and more from appeals to ‘Africanist’ racial solidarity and nostalgic recollections of patriarchal social order rather than on the basis of the quality of government performance.

In a neo-patrimonial political culture party leaders and their families acquire substantial business interests. Local office holders are kept happy through municipal and provincial tendering procedures when municipalities are “captured” by informal patronage networks that trump the influence of ANC branches.

Business leaders are “co-opted” and willingly contribute funds to the party or to individual leaders in exchange for financial and other benefits in the gift of the state. State owned enterprises also become vehicles for dispensing different forms of patronage.

This does not mean that there are not many leaders (and clearly many more members) within the governing party that do not detest illegal forms of patronage and corruption and do not try, as best they can, to counter it. But it does mean that their struggle becomes ever more difficult. As Lodge argues with reference to the ANC under President Jacob Zuma:

This kind of behaviour has been accompanied by sharpening competition for posts in government and within the party organisation, which in turn has eroded the decorum that used to characterise the ANC’s internal procedures. The ANC’s leadership increasingly reinforces its authority and demonstrates its power through displays of ostentation and through elaborate security procedures…. [Thus] the behaviour of ANC leaders and their followers is beginning to correspond to conventions associated with clientelistic organisations, in which specific public services and resources are offered to particular groups in exchange for political support.

While a neo-patrimonial governing party depends on institutions such as the Hawks, the Public Protector and the judiciary to deal with factional opponents and to legitimise its rule, the dominant faction needs to be able to exert some control over such institutions to protect the members of the dominant faction from some of the consequences of patrimonial politics.

(It must be said that while some forms of patronage are perfectly legal and are indulged in by all governing political parties in any democracy, many other forms of patronage are not).

The relentless attacks on the Public Protector in the wake of her Nkandla Report, and (perhaps) the illegal suspension of Anwar Dramat, the head of the Hawks, by police minister Nkosinathi Nhleko, may be manifestations of this need to exert control over “independent” institutions that may pose a threat to the financial and political interests of the dominant faction within the governing party.

Neo-patrimonial politics have negative consequences for a country and, inevitably, lead to an increase in corruption. And as the Constitutional Court stated in the original Glenister judgement:

corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

The majority of the Constitutional Court in that original Glenister judgment thus declared invalid several provisions of the law that torpedoed the Scorpions and created the toothless Hawks instead. Finding that an anti-corruption fighting body needed to be “shielded from undue political interference” to be effective, the Court found that the Hawks as originally set up lacked the adequate independence to shield it from such political interference.

One of the reasons the original legislation did not provide for adequate independence for the Hawks was the lack of specially entrenched employment security for members of the Hawks – including its head. Where members of the Hawks can be fired (or suspended) at the whim of a politician it “may well disincline members of the [Hawks] from reporting undue interference in investigations for fear of retribution”.

After Parliament purported to amend the legislation to give effect to the original Glenister judgment, the Constitutional Court once again declared invalid several sections of the amended legislation in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others.

One of the sections it declared null and void and thus of no force and effect was section 17DA(2) of the Police Services Act. This section stated, amongst others, that:

(2) (a) The Minister may provisionally suspend the National Head of the Directorate from his or her office, pending an inquiry into his or her fitness to hold such office as the Minister deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i) for misconduct; (ii) on account of continued ill-health; (iii) on account of incapacity to carry out his or her duties of office efficiently; or (iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

The Constitutional Court explained that this section – purportedly relied on by the Minister of Police to suspend Mr Dramat – was unconstitutional and invalid because:

This subsection (2) removal power is inimical to job security. It enables the Minister to exercise almost untrammelled power to axe the National Head of the anti‑corruption entity.

The Constitutional Court therefore found that the quoted section of the Police Services Act was “inconsistent with the Constitution” and was “declared invalid and deleted” from the law. The effect of this Court ruling was that the section which the Minister of Police had relied on to “suspend” Dramat has the same legal power as a suicide note scribbled on a piece of toilet paper by a scorned lover about to jump in front of the Gautrain.

It must be noted that the Court did not declare invalid section 17DA(3) to (6) of the Act. These sections provide for the suspension of the National Head of the Hawks by the Minister, but ONLY AFTER a Committee of the National Assembly has initiated an investigation into the possible removal of the Head of the Hawks.

The sections require that a recommendation by a Committee of the National Assembly for the removal of the National Head would have to enjoy the support of at least two thirds of the members of the National Assembly to be implemented, thus protecting the Head against removal on party political grounds.

The National Assembly has not initiated such an investigation, which means that the Minister has no legal power to suspend the head of the Hawks. He could only suspend the head of the Hawks once the inquiry by the National Assembly has started.

Yet the Minister of Police relied on the unconstitutional and thus deleted section of the South African Police Services Act to “suspend” the head of the Hawks. This was unlawful. No court in South Africa will endorse the illegal suspension of Mr Dramat by the Minister of Police.

Which begs the question: why did the Minister of Police rely on a deleted section of the law to pretend to suspend the head of the Hawks just before Christmas? Was this really for the reasons stated or did it become necessary to break the law because members of the dominant faction within the governing party became anxious about investigations into their affairs by the Hawks?

In other words, when the Minister of Police was confronted by the demands created by the culture of neo-patrimonial politics within the ANC and its financial supporters, did he decide to ignore the Constitutional Court judgment (and hence, did he decide to flout the Rule of Law) in order to protect factional interests within the party?

Or did he act illegally because his legal advisors are so incompetent that they are unable to read and comprehend the order handed down by the Constitutional Court?

James Bond and the National Key Points Act

The National Key Points Act, passed by the apartheid Parliament in 1980 to protect the PW Botha regime and those who collaborated with it, is a constitutional abomination. Yet, when civil society groups requested the list of National Key Points from the Minister of Police in terms of the Promotion of Access to Information Act (PAIA), this request was refused on the grounds that making the list public would provide information to “dark forces” out to destabilise South Africa. The Gauteng High Court had no problem in rejecting this laughable claim and ordered the release of the list.

Secrecy becomes a habit for those with something to hide. No wonder the apartheid state was notoriously secretive. Although the rumour that PW Botha’s matric certificate was classified information could never be confirmed (let’s just say that he was no academic overachiever), much else in apartheid South Africa was classified information. When the apartheid state finally came crashing down in the early 1990ties the paper shredders worked overtime to destroy the (secret) evidence on extra-judicial killings, torture and other state crimes.

The National Key Points Act played its part in creating this web of secrecy and deceit. Although the list of National Key Points was never made public, citizens could be prosecuted for revealing information about security measures at National Key Points, creating a Kafkaesque world in which you could be sent to prison for something that you could not have known was a crime.

Sadly (but perhaps not surprisingly) the Act was never repealed or amended after the advent of democracy. It has, instead, been enthusiastically (but only selectively – more on this later) used to suppress information about facilities about which the public may ask awkward questions. A certain private home in rural KwaZulu-Natal comes to mind.

The Act allows the Minister to declare any place a National Key Point, among other reasons “whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. As the High Court pointed out this gives the Minister (now the Minister of Police) almost unfettered discretion to declare places National Key Points if he or she wants to keep information about it secret.

The declaration of a place as a National Key Point has some interesting consequences. Section 3 of the Act states that once declared a Key Point:

the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.

Famously this provision was ignored after President Jacob Zuma’s private home was declared a National Key Point. It was argued that a cabinet decision on security upgrades at Presidential homes governed the Nkandla renovations. However, it is unclear how a policy decision taken by one branch of government, can trump legislation passed by another.

The Constitutional Court ruled in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others that the executive cannot amend the provisions of an Act of Parliament as this would breach the separation of powers. The cabinet policy therefore could not amend the provisions of the National Key Points Act.

A fascinating legal question is whether a cabinet policy can be invoked to justify state-funded “security upgrades” at a National Key Point, given that the Act requires the owner to carry the cost of any security upgrades. In her report the Public Protector assumed that it could. But I would be surprised if a court found that the peremptory provisions in an Act of Parliament could be overridden by a cabinet policy.

Section 3B of the Act also requires the establishment of a “Special Account” which can be used to render financial assistance – including loans – to the owners of National Key Points required to improve the security on the property. This Special Account has never been created. This means another pivotal section of the National Key Points Act has not been complied with.

Section 10 of the Act further creates several criminal offences regarding National Key Points. Amongst others, it prohibits any person from furnishing “any information relating to the security measures applicable at or in respect of any National Key Point”.

When the list of National Key Points is kept secret it means that ordinary citizens may not know when they commit a crime relating to a National Key Point. The High Court correctly found that keeping the list of National Key Points secret was in conflict with one of the basic tenets of the principle of legality.

This is so because there can be no secret laws. “One of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes.” For this reason alone, according to the High Court, the list of National Key Points had to be made public.

The state also had an obligation in terms of PAIA to make the list public. Section 11(3) of PAIA makes it clear that a requester of information need not justify a request for information held by the state. In contrast, if the state refuse to provide the information requested it is the state who has to justify its refusal.

In this case, the state failed to provide any evidence of why it was justified to keep the list of National Key Points a secret.

The High Court quoted extensively from the Constitutional Court judgment in President of the Republic of South Africa and Others v M & G Media Ltd to explain what was required from the state to justify a refusal to provide information held by it.

In order to discharge its burden under PAIA, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach … is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. The recitation of the statutory language of the exemptions claimed is not sufficient for the state to show that the record in question falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed.

“Sufficient information” was never provided in this case to justify the secrecy. Instead the state alluded to “dark forces” that are out to destabilize peace-loving countries, like our own. By way of illustration, the state referred to the bombing of the mall in Nairobi as this supposedly shows “how vulnerable countries and their citizens are.” As the High Court remarked:

This is, self-evidently, an ill chosen example; ie, to compare a shopping centre being exposed to politically inspired violence, where the public congregate en masse, with a key point, is inapposite. However, it may be supposed that, upon a generous interpretation of the remark, it was intended simply to illustrate the generic exposure to unexpected violence that everyone experiences. Nevertheless, to give voice to a bland truism contributes nothing to a justification under PAIA.

In fact, the court found that the state wholly failed to provide any evidence for denying access to the list. The state claimed that making the list public would endanger the lives of people and was likely to endanger state security. But it did not provide any facts to back up this bold claim. On the contrary, the state itself had on previous occasions revealed that some places have been declared National Key Points, rendering its argument that such revelation threatens the security of individuals or the state difficult to accept.

As the High Court wryly remarked:

The rationale offered by the respondents is spoilt by the conduct of the Government itself, because evidence was adduced of ministers having furnished details of key points to Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquillity. A further example of public disclosure of a key point adduced by the applicants includes the very public announcement that Nkandla, the private home of President Zuma, has been declared a key point.

The Court also rejected the state’s “James Bond defence”. Perhaps answering the question on whether the law has a sense of humour first posed by Justice Sachs in the Laugh it Off case, the High Court rejected this defence in the following manner:

In argument, counsel for the respondents, quite properly, was driven to concede that there was no evidential material disclosed in the papers to support the refusal. He contended that the predicament of the respondents was illustrated by the experiences of that well known gentleman adventurer and upholder of noble causes, James Bond, who, albeit it must be supposed, with his customary charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.

Hopefully the state will not appeal the judgment. If it does appeal, it will almost certainly lose again, wasting taxpayer’s money in the process.

But this judgment is only a partial victory for common sense and openness. The case did not deal with the larger question of whether the Key Points Act was unconstitutional. Given the untrammelled discretion given to the Minister to declare places National Key Points, aspects of the Act will almost certainly be declared unconstitutional if they were to be challenged.

But that question will only be definitely answered when the constitutionality of the Act is challenged in court. Hopefully the court will get the opportunity to answer this question in the near future.

Our own Olivia Pope won’t end corruption

Last week the Constitutional Court confirmed that Parliament had failed to comply with its previous judgment on the unconstitutionality of the legislation that created the Hawks. But the court also reminded us that no amount of legal tinkering could guarantee the unit’s effectiveness in combatting corruption. Institutions do not (on their own) stop corruption. People do.

When Parliament abolished the Scorpions because it was foolhardy enough to pursue corruption charges against President Jacob Zuma and other high profile politicians and replaced it with the Hawks, the move was met with shock and outrage by many of the same people who watch and enjoy the questionable actions of Olivia Pope in the television series The Fixer (Scandal in the US) and the depraved behaviour of Frank Underwood in the House of Cards.

It is as if people believed that an institution like the Scorpions could single-handedly end the culture of patronage that has become entrenched in our political system. The recent judgment of the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others reminds us that a corruption fighting body (as well as the courts) – while playing an important role – can only do so much to stop corruption.

The most telling aspect of the judgment can be found in an “End Note”, penned by Justice Johan van der Westhuizen in his partly concurring judgment.

Justice Van der Westhuizen acknowledges that corruption “threatens the very existence of our constitutional democracy” and that effective laws and institutions are needed to combat corruption. The Constitutional Court therefore has a duty to “ensure that legal mechanisms against corruption are as trustworthy and tight as possible”.

But courts can only do so much. A corruption-free society can only develop in the hearts and minds of its people – particularly the ones occupying positions of political and economic power. We need dedication to the spirit and high aspirations of the Constitution. Institutions are tools designed to help people realise their ambitions.  Much dedication is required on the part of those handling the tools.

As Justice Van der Westhuizen points out:

[E]ven the most sophisticated institutional design will require the exercise of discretion and therefore integrity on the part of – and trust in – the office-bearer. Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible deniability we give to a corrupt actor if all the technical boxes have been ticked. Generally, abstract institutional designs cannot be corrupt. As we know, people can be.

These words should not come as a shock to those who have watched Olivia Pope strut around in her beautiful white dresses “fixing” other people’s problems by delivering stirring speeches, drinking many large glasses of red wine, her bottom lip occasionally quivering with emotion, while her murderous daddy goes around subverting the rule of law in between lecturing Olivia about how political power actually works.

If I understand Justice Van der Westhuizen correctly, he is saying that while institutions like the Scorpions or the Hawks could help to fight corruption if they were adequately independent, it is only when voters start punishing politicians and the parties they belong to for being corrupt or for not taking decisive action against their colleagues in their respective parties who are corrupt, that there would be a real incentive to end the scourge of corruption. The most effective mechanism to fight corruption is the democratic process itself.

But that depends on voters making the connection between the corruption (in both the public and the private sector) and their own circumstances; the lack of access to clean water or adequate toilets, the absence of decent housing, the long queues at the state hospital, the rude and inefficient service at the municipal office, the power cuts, the rubbish that remains uncollected in the streets.

This does not mean that an “adequately independent” corruption fighting body could not help to expose corruption. For this reason the Constitutional Court (in a majority judgment authored by Chief Justice Mogoeng Mogoeng) confirmed the unconstitutionality of several sections of the legislation relating to the establishment of the Hawks.

This legislation was amended by Parliament in a failed attempt to give effect to the Constitutional Court’s previous decision declaring aspects of the legislation unconstitutional for not creating and adequately independent corruption fighting body.

When a Bill purporting to give effect to the first Constitutional Court judgment was initially tabled in Parliament, it displayed little enthusiasm for the creation of an independent corruption fighting body.

It was not only that the “quality of the drafting could use some improvement” – as Justice Mogoeng wryly remarked – but also that the original draft did everything to ensure that the politicians remained in control of the Hawks and that the body would not be able to act independently from some of those it may have to investigate.

To its credit the Portfolio Committee fixed many of the clearly unconstitutional aspects of the draft Bill after several experts (full disclosure, I was one of those so called “experts”) pointed out that the draft legislation would never pass constitutional muster.

But, sadly, the Portfolio Committee ignored some of the important points raised during the deliberations, which has now led the Constitutional Court declaring invalid several sections of the legislation dealing with the establishment of the Hawks.

The Court examined each of the impugned provisions to determine whether they militate for or against a corruption-fighting agency, which, though not absolutely independent, should nevertheless be adequately independent in terms of both its structure and operations.  It used the following test to do so:

We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

The majority of the Court declined to declare invalid the section of the law dealing with the appointment of the National Head of the Hawks by the Minister of Police after approval by the Cabinet (Cameron J in a dissenting opinion argued that the section was indeed unconstitutional). However, Chief Justice Mogoeng did provide an interpretation of the section that limits the discretion of the Minister and the cabinet to appoint the Head of the Hawks. The Court emphasised that only a “fit and proper” person could be appointed which means:

that the candidate must have the capacity to do the job well and the character to match the importance of the office.  Experience, integrity and conscientiousness are all intended to help determine a possible appointee’s suitability ‘to be entrusted with the responsibilities of the office concerned’. Similarly, laziness, dishonesty and general disorderliness must of necessity disqualify a candidate…. Since inconsequential experience and character flaws could not have enhanced the prospects of her appointment to that office, if she was nevertheless appointed, then a successful legal challenge may be mounted against that appointment.

The Court did invalidate the provision that allowed the Minister to renew the term of office of the National Head of the Hawks as this would clearly have compromised the independence of the unit. It also declared invalid sections of the law that would have empowered the Minister to suspend and eventually remove the National Head of the Hawks without any involvement of Parliament.

Other provisions of the Act, which gave far too much power to the Minister to decide which crimes could and could not be investigated by the Hawks and how it had to operate, were also declared invalid. The involvement of the Minister, said the Court, would have rendered:

the anti-corruption character of the [Hawks] dependant on whatever the Minister, in the exercise of her discretion, wants it to be.

This would not have been in accordance with the requirement to create an adequately independent corruption fighting body.

The judgment represents delicate balancing act. It is careful to respect, as far as possible, the policy choices made by Parliament, while protecting the “adequate independence” of the Hawks.

Whether this judgment will ultimately bolster the independence of the Hawks will depend to a significant degree on whether the National Head of the Hawks and those working for the unit are prepared to act in a fearless manner to fight corruption no matter where it might be found.

Even the most honest and diligent person would find this difficult to do – unless he or she can depend on support of those in power and, ultimately on that of ordinary voters; the very people who will be directly affected by corruption.

This suggests that until such time as an overwhelming majority of voters reject all forms of corruption – even when this is committed by a politician belonging to the political party they support or by a business leader they respect – the Hawks will not be able to turn the tide against a phenomenon that “threatens the very existence of our constitutional democracy”.

Deal between Ramaphosa and opposition was unenforceable

The collapse of the “deal” between opposition parties and Deputy President Cyril Ramaphosa is not surprising. From a principled constitutional perspective the collapse of the deal must be welcomed. This is because the Deputy President did not have the constitutional authority to make the deal, which remained unenforceable. To enforce the deal would flout the Rule of Law.

It is sometimes difficult to insist on the scrupulous enforcement of legal rules and principles. Many people are tempted to look the other way when the political party or functionary they admire or are loyal to flout the legal rules and constitutional principles. Conversely, many people only insist on a strict adherence to legal rules or constitutional principles when a political party or functionary they dislike flouts the rules or principles.

Because of the fairly widespread lack of respect for Speaker Baleka Mbete among the members of the chattering classes (and because of the increasing chaos in the National Assembly), there were not many people who questioned the “deal” concluded between the Deputy President and opposition parties. For reasons not known to me, it appears that members of the ANC caucus – correctly – did question the appropriateness of the deal.

There are two reasons why the “deal” (which has since collapsed) was a constitutional non-starter.

First, the Deputy President (while a member of the National Assembly) is a member of the executive and as such represents the executive when he engages with members of the National Assembly in his official capacity.

In terms of section 91(4) the Deputy President has been chosen to act as the leader of government business in the National Assembly. Although the rules of the National Assembly require that he be consulted on several issues and although he serves as a member of the Programming Committee of the National Assembly, neither the Constitution nor the rules of the National Assembly accords the Deputy President (as leader of government business) any leadership role in the National Assembly.

The Speaker heads the National Assembly. Constitutionally only the Speaker can make decisions about the affairs of the National Assembly and then only when this is authorised by the Constitution and the rules of the National Assembly. If a deal was going to be struck about the affairs of Parliament, the Speaker was the appropriate person to do so.

This does not mean that the Deputy President may not meet with the leaders of opposition parties. Neither does it mean that he may not – on behalf of the governing party – make political deals with opposition parties. What he is not authorised to do is to make deals with opposition parties regarding the affairs of Parliament. The “deal” reached last week was therefore (for this reason alone) unenforceable and constitutionally invalid.

But, second, even if the Speaker had led the negotiations with opposition parties and had concluded the “deal”, she would not (in a formal sense) have been legally authorised to do so.

Rule 2(1) of the National Assembly states that the “Speaker may give a ruling or frame a Rule in respect of any eventuality for which these Rules do not provide”.

But the problem is that the rules and legislation already regulate the two most important aspects on which the governing party and the opposition differed. It does so in great detail.

These issues are the disciplining of EFF members in terms of the provisions of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act 2004 for insisting that the President “pay back the money” and the need for the President to answer questions in the Assembly four times a year.

It may very well be that the disciplinary action taken against EFF members were not “in accordance with a procedure that is reasonable and procedurally fair” as required by section 12(3)(a) of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act.

The EFF members have a more than even chance of persuading a judge that the procedure (prescribed by the rules of the National Assembly) that led to their conviction was neither reasonable or procedurally fair. The judge could then set aside the findings. But neither the Speaker (nor the Deputy President) formally has the legal authority to do so.

But this is not a particularly difficult problem to solve. While the Deputy President and the Speaker does not have the formal legal power to suspend or scrap the findings of the disciplinary committee against EFF members, the members of the National Assembly does have that power. All that is required is support from the majority of Members of the National Assembly.

This is because the National Assembly has the power to either endorse or reject the findings of the disciplinary committee established in terms of the legislation. This means that had the President and the Chief Whip of the ANC been able to sell this aspect of the “deal” to their party, its members could have declined to support the findings of the disciplinary committee against the EFF members. The disciplinary action against the EFF would then have fallen by the wayside.

This is somewhat of a technicality, which means that in practice either the Deputy President or the Speaker would have been able indirectly to deliver on a promise to halt disciplinary action against the EFF if the members of their party had backed them up.

But this is not the case with the requirement that the President must appear in Parliament to answer questions. This is, first, because section 55(2) of the Constitution states that the “National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it”. These executive organs of state include the President.

This obligation is given practical effect to by National Assembly rule 111 which states that:

Questions to the President must be (a) scheduled for a question day at least once per term in accordance with the annual Parliamentary programme; and (b) limited to matters of national and international importance.

The rule is peremptory, which means the President does not have a discretion in the matter. The Speaker must ensure that he is scheduled to answer questions once every term.

Here the rule at first appears to be confusing. A “term” is defined in the rules as “the period for which the Assembly is elected in terms of section 49(1) of the Constitution”. Section 49(1) states that the National Assembly is elected for a term of five years. If “term” is given this meaning every time the word “term” is actually used in the rules, it would render many of the rules incomprehensible and absurd. This is so because the rules often refer to a “term” when it means one of the four periods a year when the Parliament is in sitting.

It would also mean a President would have to answer oral questions in the National Assembly only once every five years. This would clearly be in conflict with section 55(2) of the Constitution, which means the rule must be read differently. This is exactly what has happened up to now.

As I noted, the word “term” is also used elsewhere in the rules to refer the distinct periods in which the Parliament is in session each year. Given the context of rule 111, “term” clearly refers to these distinct periods. Usually there are four “terms” for Parliament every year.

However, this year there was an election, which means when establishing whether the President has complied with his legal obligation set out by rule 111, one has to establish how many terms Parliament was in session this year after the May election.

The Parliamentary Programme for the fifth Parliament elected after the May election states that Parliament sat for three distinct terms after the election. This means that the rules of the National Assembly require that the President answer oral questions in the National Assembly at least three times from June to November this year.

This did not happen.

The President has only answered oral questions in the National Assembly once since the election. He is therefore legally required to answer questions in the National Assembly two more times before the third term of Parliament ends on Friday. This is not going to happen, which means the President (and the Speaker who ought to arrange for this) are therefore in breach of their legal obligations in terms of section 55(2) of the Constitution read with rule 111 of the National Assembly.

Neither the Deputy President (as leader of government business) nor the Speaker has the legal authority to waive these rules. A basic tenet of the Rule of Law is that all peremptory, pre-announced and clear legal rules have to be complied with. In the absence of a court ruling to authorise a non-enforcement of a legal rule, it would constitute a breach of the Rule of Law to ignore such a rule in order to facilitate a political agreement.

This is the thing with peremptory legal rules: they cannot be suspended merely because a few politicians decide that the legal rules are inconvenient or – if applied – would embarrass the President or disadvantage the opposition parties.

What is clear is that there has been a breakdown of trust between political parties in the National Assembly. Without a modicum of trust, the system cannot work properly. Instead of a lively and robust platform for democratic contestation, it becomes a mini-war zone. And in a war, brute force – and not the strength of argument – is the only thing that counts. But politics is not (only) about brute force – at least not in any system with democratic pretensions. If the system does not work, its legitimacy will be compromised. Eventually the legitimacy of the both the governing party and opposition parties would also suffer.

This means that, despite the legal difficulties, some kind of solution need to be found to ensure that the rules are impartially applied and the members more or less obey the impartially applied rules. A starting point would be to ensure the implementation of rule 111 and to arrange for the President to answer questions as required by the Constitution and the rules of the National Assembly.

Why report of Nkandla ad hoc committee is of no legal relevance

Last week the ANC members of Parliament adopted a “report” that “exonerates” President Jacob Zuma of all wrongdoing in the R250 million Nkandla scandal. This is not unexpected. ANC MP’s need to protect the President in order to retain their jobs and to have any chance of promotion in future. It is politically required of them. But Nkandla is not (only) about politics. It is also about facts and the law. And legally the adoption of the “report” by ANC MP’s is of little significance.

The only surprising thing about the fact that the ANC MP’s in the National Assembly “exonerated” President Jacob Zuma of all wrongdoing for “accidentally” being enriched through government funded renovations of his private home near Nkandla, is that anyone was surprised.

President Zuma heads the ANC and is arguably (bar the Secretary General of the ANC perhaps) the most powerful person in the governing party. He has a decisive say in who is appointed as Cabinet Ministers and as Premiers. He has direct or indirect influence on who appears on ANC election lists.

He has extensive knowledge – through control of the intelligence services – of the shenanigans of those MP’s whose private lives or financial affairs may not be above board. And like the members of most political parties, ANC MP’s act as a collective in terms of decisions taken by the leadership, headed by President Zuma.

It would therefore have been political madness for ANC MP’s to endorse the findings of the Public Protector’s Report on Nkandla which found that President Zuma’s:

failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.

Section 96 of the Constitution states that Members of the Cabinet – including the President – have a constitutional duty to act in accordance with a code of ethics and may not “use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”. In other words the Public Protector found that by failing to act when he had a constitutional and legal duty to do so, the President breached the Constitution and the Code of Ethics.

The Public Protector’s Report continued to direct President Jacob Zuma to do the following to rectify the unethical and unconstitutional omission:

  • Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool.
  • Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.
  • Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.
  • Report to the National Assembly on his comments and actions on this report within 14 days. (This needed to be done because the Executive Members Ethics Act required it.)

These steps were not directed at Parliament but at the President. Because of the separation of powers doctrine, which holds that the legislature and the executive exercise different powers and functions, the central duties and powers of the head of the executive (the President) cannot be delegated to Parliament.

To do so would be to breach the separation of powers. Similarly the central duties and powers of the legislature cannot be delegated to the President. This was made clear by the constitutional Court in their judgment in Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others.

The renovations at the Nkandla home were done by members of the executive, headed by the President. Parliament did not renovate President Zuma’s house. This is because Parliament does not and may not fulfil an executive function. It cannot direct a building project or make decisions on whether to build a swimming pool or landscaped garden for the President to protect him from the danger of not having a swimming pool to cool down in and the danger of getting depressed by having to look at an ugly garden. Only members of the executive can do that.

It is for that reason that the Public Protector directed the President, the Minister of Police and the Director General of the Department of Public Works, and other members of the executive to take remedial action to rectify the wrongdoing committed during the Nkandla renovations.

The remedial action was not directed at the legislature. In fact the Public Protector, correctly, did not instruct the National Assembly to do anything – although she left open the possibility that it could hold the executive politically accountable for the unjustified enrichment of the President. This is because the members of the executive cannot delegate its powers to correct mistakes and to deal with unlawful expenditure to the legislature, as that would be impermissible in terms of the separation of powers doctrine.

Just as the President cannot delegate a decision on whether to declare war or whether to join BRICS to members of Parliament, he cannot delegate a decision of what to do with the Nkandla Report to Parliament.

This does not mean that the National Assembly has no power to deal with a breach of the Executive Members Ethics Act, as it has the power to hold the members of the executive accountable for such breaches as part of the system of checks and balances that is built into our Constitution.

In terms of the Executive Members Ethics Act the President must report a finding of any breach of the Ethics Code to the National Assembly. In theory this means that the National Assembly can follow up on any findings made by the Public Protector against a member of the executive and, in an extreme case, can pass a vote of no confidence in the Cabinet or in the President to have them removed.

But as the Cape High Court recently found in the judgment in which it clarified the powers of the Public Protector, Parliament would seldom be an effective mechanism through which the findings and remedial action of the Public Protector would be enforced.

In that judgment, dealing with the failure of the Minister of Communications and the SABC Board to deal rationally with the findings and remedial action imposed by the Public Protector, the Minister had argued that the best way to deal with any non-compliance of the Public Protector’s Report would be to refer the matter to the National Assembly.

The Minister argued that a request for intervention to the National Assembly or a relevant Portfolio Committee would have been an adequate remedy to deal with any alleged failure of the executive and the SABC Board to implement the remedial action imposed by the Public Protector.

The High Court dismissed this argument and found that the Minister was “mistaken”.

The facts of this very case show that the constitutional and statutory provisions upon which they rely are inadequate to ensure that the Public Protector is not undermined. Furthermore, a request for intervention to the National Assembly or its Portfolio Committee is not a legal remedy which grants similar protection as an interdict.

In other words, the High Court found that it would not be effective to rely on the National Assembly to deal with the implementation of the remedial action imposed by the Public Protector. This is obviously correct, because in the National Assembly political (and not legal) considerations will almost always determine the manner in which the National Assembly deals with the matter.

It is highly unlikely that the members of a majority party in any legislature will act in a manner that embarrasses their leader. It is even more unlikely that they will censure the leader or remove him or her from office by passing a motion of no confidence in him or her.

This is not a comment on (or criticism of) a specific political party, but an observation about the political reality within which the various legislatures operate in South Africa.

It is just as unlikely that the ANC members in the National Assembly will pass a vote of no confidence in President Jacob Zuma than it is that the DA members in the Western Cape Provincial Legislature would pass a vote of no confidence in Premier Helen Zille. It ain’t gonna happen – no matter how disgruntled some ANC MPs may be about President Zuma’s spendthrift ways or how upset some DA MPs may be about Premier Zille’s bullying and haughtiness.

This means that the National Assembly “Report” that “exonerates” President Zuma is of little legal relevance. In terms of the High Court judgment, it is the President who has a legal duty to consider the remedial action imposed on him by the Public Protector, to decide whether to implement the remedial action or not and if he decides not to implement any of the remedial action imposed on him to provide “cogent reasons” for not doing so.

When the President makes his decision, he must act rationally, having regard to his constitutional duty to assist and protect the independence and effectiveness of the Public Protector. He cannot ignore the remedial action and he cannot refuse to implement it merely because he has a different view from that of the Public Protector.

Being implicated in the matter means that the President is placed in an unappealing position: If he refuses to implement remedial steps it will be to his own financial and political benefit and it would thus be more difficult to convince a court that such a refusal was rational. The obvious conflict of interest that arises in the case, thus makes it very difficult for the President to be seen to act rationally – unless he implements all the remedial steps as imposed by the Public Protector.

Merely stating that the National Assembly has exonerated him, would also not be sufficient to convince a court that the President has acted rationally, because he is not constitutionally empowered to delegate the decision on whether to implement or not implement the remedial action to the National Assembly. If the President purports to do so he will be in breach of the separation of powers doctrine and the court will nullify his decision.

Of course, if the President provides “cogent reasons” for not implementing remedial steps imposed by the Public Protector and does so in a rational manner – given his constitutional duty to assist and protect the independence and effectiveness of the Public Protector – an eventual court challenge will exonerate him.

If not, the court will find that he had acted irrationally and thus unconstitutionally and will order him to implement the remedial action imposed by the Public Protector – as the High Court ordered the SABC to do in the recent judgment.

What is certain is that when the matter eventually reaches the court – as it almost certainly will – the decision by ANC members in the National Assembly to “exonerate” the President is not going to be of legal relevance.

Why everything you think you know about free expression is false

Steve Hofmeyr and his supporters claim that a puppet called Chester Missing has infringed on his right to freedom of expression by challenging his racist statements and by challenging his sponsors for supporting his racism. They do not seem to understand that your right to freedom of expression does not always give you a right to freedom from the consequences of your expression.

The protection of freedom of expression is a prerequisite for the proper functioning of a democracy. When the state or individuals use the law to supress the free flow of ideas and information needed to make informed political choices, the quality of the democracy is diminished. We are then forced to make partially informed or uninformed decisions about whether to vote and if we vote for whom to vote.

A world in which books, movies or songs are banned; comedians are censored; prophets, artists, writers or poets jailed; academics gagged; critical voices silenced; or cultural conformity imposed through court orders or threats of violence is a world in which the human dignity of every person is not respected. This is so because our agency as human beings is diminished when we do not have at least the possibility of being exposed to life changing forms of artistic, religious or intellectual expression.

The problem with these lofty sounding principles is that not all forms of expression have equal value. But it is difficult to distinguish between forms of expression that enhance democratic debate and enrich our lives, and forms of expression that have little or no value or harm people and sabotage democratic debate.

For this reason people who are strong supporters of freedom of expression often claim to endorse the view (attributed to Voltaire) that “I may disapprove of what you say, but I will defend to the death your right to say it”.

Underlying this view is the assumption that we cannot trust anyone or any institution to decide impartially and fairly what types of expression are worthy, enriching and democracy-enhancing and what types of expression have little or no value. We therefore need to protect all types of speech in the hope that democratic deliberation in the so-called “free marketplace of ideas” will help us to establish the “truth” about a matter.

But if you scratch below the surface you soon realize that this view of freedom of expression is false. The degree of support we offer for the right to free expression of others depends partly on whether we believe the expression has value or not; whether we believe it forms part of a legitimate debate or whether the speech is so objectionable that it extends beyond what we are prepared to defend. This is not easy to admit because it robs the right to freedom of expression of some of its moral clarity.

We accord different value to different types of expression and grant different levels of protection to the expression depending on the value we attach to it. We value some forms of expression so much that we actively promote it and jealously guard the space within which it can be expressed. We attach little or no value to other forms of expression and do not mind if these ideas are not given wide publicity. Other forms of expression – inciting people to commit mass murder, or child pornography, for example – are so objectionable that we have no problem in having these ideas suppressed.

We may claim to be prepared to defend all views to the death, but we lie when we do so. We all tolerate different kinds of expression to different degrees depending on our political and ethical commitments. While we may defend some views vigorously, we will defend other views more tentatively while we will be prepared to have other views censored entirely.

Let us look at a few examples to illustrate this point.

Very few South Africans will vigorously defend and actively seek to provide a platform for the views of paedophiles who argue for the legalization of sex with young children. This is so because as a society we have decided that adults who force children to have sex with them harm those children – we do not need further debate on the issue to decide whether this is true or not.

While some of us might, at a push, defend the right of paedophiles to state their views without being arrested or censored, few of us will not object if we discover Pick & Pay or Landrover is sponsoring the paedophile’s activities. Those who claim that the right to free speech of the paedophile is being infringed by those who ask sharp questions of Pick & Pay and Landrover for sponsoring the paedophile, will reveal that they believe reasoned debate about the value of paedophilia is possible and desirable.

Similarly, in a democratic society based on the value of human dignity and equality the views of a racist, sexist or homophobe might similarly be legally tolerated while also not actively being promoted or accepted. This is because most of us do not believe that there are two valid sides to the argument. If you are a bigot who believes that black people are inferior to white people most of us think your belief has no value in a democracy – arguing about it would only give credence to the bigotry.

This means that those who object to targeting Pick & Pay and Landrover for sponsoring Hofmeyr are saying that while they might not agree entirely with Hofmeyr they are relatively tolerant of racism and bigotry and believe that there is a valid argument to be made in support of the contention that black people are inferior to white people. This is a political and ethical choice (in my view a despicable choice, it must be said) which implicates Hofmeyr’s defenders in tolerance of bigotry.

Defending some forms of free speech is not always value neutral.

The same principle applies to those who deny the Holocaust or argue that the Nazi’s did a great job by exterminating 6 million Jews. As a society we have decided that there is no value in debating whether the Holocaust occurred or whether the mass murder of the Jews was a good idea. Why debate something that is so obviously evil – it will just give credence to the disproved and harmful views of a few lunatics? We may or may not criminalise Holocaust denial, but few of us are going to champion the rights of denialists to make money out of their hatred and bigotry from sponsorships by private companies.

Some forms of expression – expression that is defamatory or contains hate speech, for example – are also regulated by law. Few if any of those who say they will defend to death your right to have your say have ever defended to the death the right of everyone to defame others or to incite violence against them.

These examples illustrate that we tolerate or protect different types of expression to different degrees. Our Constitution protects speech (apart from narrowly defined forms of hate speech), which means it would seldom be constitutionally valid to use the law to censor or suppress expression. That is why no one has used the law to censor Hofmeyr’s racism.

But there is a huge difference between using the law (with the full might of the state behind it) to silence someone and for private individuals to challenge the speaker and those who support him or her financially or otherwise about their views.

When the speech is of a kind that has little or no value for the democracy (and I contend that racism and bigotry has little value for a democracy), it may be tolerated without being accepted and promoted. When a large company accepts and promotes such bigotry and racism, that company should therefore not be surprised if it is called out about it and pressurized to stop its support for speech that is both bigoted and racist.

There is another reason why those who claim to be prepared to defend to death the right of everyone to say what he or she wishes, are talking nonsense. This is because the “free marketplace of ideas” – on which this notion depends – is of course a ridiculous fiction. Not all views are treated equally in any society or by anyone and none of us give all views a fair and equal chance to be heard.

The free marketplace of ideas is not only a fiction because as a society we have already judged some types of expression as worthless or positively harmful and therefore not worthy of protection or worthy of only minimal protection. It is also a fiction because there cannot be free and fair competition of ideas in a capitalist society.

Ideas can only compete freely with each other if people are exposed equitably to these ideas and are given a fair opportunity to consider them. But many worthy (and many not so worthy) ideas are not given a fair opportunity to be heard because these ideas threaten the status quo or is considered harmful to society.

How often have you heard the views of a paedophile arguing in favour of sex with small children broadcast on television? Not that often, I would guess, because the “market” has decided to censor those ideas because they are viewed as harmful to society.

Moreover, where those who distribute information (via radio, television, in the print media, or on internet websites) have a vested interest in retaining the status quo they will seldom promote ideas that challenge the status quo. And for commercial reasons, the media often tone down criticism of their advertisers or of the politicians and political parties their customers support. Financial considerations play an important role in determining what ideas we are exposed to and in what way we are exposed to these ideas.

Think about this: Pick & Pay is not going to allow you to take up position in one of its stores to tell customers that Pick & Pay must be boycotted because it supports an Afrikaans music festival where a racist “artist” (I use the word expansively) will be performing. And will the local shopping centre in Sandton allow the Economic Freedom Fighters to hold a rally in its food court to drum up support for the next election? I suspect not.

Those who defend Hofmeyr on the basis that by targeting his sponsors we are censoring him, are really saying we are distorting the free marketplace of ideas. We are exploiting the fact that big companies want to make a profit in order to limit the extent to which bigoted and racist views are given a platform in the marketplace.

This is a nonsense argument as there is no free marketplace of ideas to start with. A company supports an “artist” because it believes the sponsorship will enhance its brand. It will never support ideas – say the ideas in support of paedophilia – that it knows will harm its brand. By alerting the company to the damage caused to its brand by its support for bigotry, we are helping it to make the kinds of choices it makes every day. Besides, no one has a right to make a profit out of his or her bigotry and racism. I have checked the Constitution and can confirm that no such right is contained in it.

So, tough luck Mr Hofmeyr. The more racist nonsense you talk, the less likely it is that you will retain any sponsors and the more likely it is that you will not be invited to appear at festivals. If you want to make money out of your bigotry you might have to record another karaoke CD. I am sure there are still some sad people out there who support you and will buy your records.

Death penalty: It’s not even the beginning of a solution

The murder of Bafana Bafana captain Senzo Meyiwa predictably led to angry calls for the re-introduction of the death penalty in South Africa. For both principled and practical reasons I do not believe the state should have the power to put to death those found guilty of serious crimes. Here is why.

South Africans who campaign for a re-introduction of the death penalty usually advance one of two arguments. First, they argue that reintroducing the death penalty would deter criminals from committing murder. Second, they support the death penalty to satisfy the need of society to take revenge on violent killers.

There are many valid reasons to punish those found guilty of crime. Revenge (or retribution) is indeed one such reason. As Justice Chaskalson remarked in S v Makwanyane, “the righteous anger of family and friends of the murder victim, reinforced by the public abhorrence of vile crimes, is easily translated into a call for vengeance”.

But it seems to me society as a whole is demeaned where we allow the state itself to become a killer in order to give effect to the understandable urge of society to take revenge on the perpetrators of heinous crimes.

Executing a prisoner is a brutal and violent act. Whether a man or woman is hanged, beheaded, injected with poison or shot, this violence and brutality will be perpetrated by the state in our name and on our behalf. To endorse the death penalty is to endorse state violence and the brutality that necessarily forms part of premeditating killing. The death penalty thus brutalises the whole of society and implicates us all in the kind of violence that we wish perpetrators to be punished for.

Besides, as Justice Chaskalson remarked in S v Makwanyane:

[C]apital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the Biblical injunction of ‘an eye for an eye, and a tooth for a tooth’… The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal.

The argument against revenge as an appropriate justification for imposing the death penalty, is an ethical one. I understand that individuals with different ethical commitments than myself may not, in principle, be opposed to brutality and violence if it is meted out by the state and if they believe those on the receiving end of the violence and brutality deserve it.

But it would be more honest for those who support the death penalty because they have no ethical problem with state-sanctioned brutality and violence in pursuit of vengeance, to say so, and not to claim their support for the death penalty is based on its supposed deterrent effect. This is so because there is absolutely no evidence to support the argument that the imposition of the death penalty deters violent criminals from committing murder.

I have yet to see any evidence of a violent criminal modifying his or her behavior because of the remote possibility that he or she would be convicted and executed by the state. To assume otherwise would be to assume that violent criminals always make perfectly rational choices. It would also assume that violent criminals actually believe that they will be caught, tried and convicted for the crimes they commit.

But in South Africa only a small minority of violent criminals are actually caught, convicted and punished for their crimes. To the extent that such criminals make rational decisions about their actions at all, they might well look at the criminal justice system and assume they will never be caught. As Justice Chaskalson pointed out in Makwanyane:

The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the state must seek to combat lawlessness.

To address the causes of violent crime and to improve the effectiveness of the criminal justice system is a long-term project. It requires resources, political commitment and more than a bit of wisdom. It requires the de-politicisation of the SAPS and the improvement of Police management; it requires the retraining of police officers and prosecutors; it requires the appointment of competent detectives; it requires the police to take steps to gain the trust of the society whose co-operation they need and whom they are tasked to protect.

Re-introducing the death penalty will not address these systemic problems: it will give the appearance of doing something about violent crime while not doing anything about it (much like the talk of “shoot to kill” did).

In the South African context there is, of course, another profoundly important reason why the imposition of the death penalty is unconscionable. Because race and class play a role in the quality of the legal representation that an accused person receives, it is likely that a disproportionate number of poor black people will be sentenced to death. In South Africa (as in the USA) the death penalty is therefore inherently racist.

People of all races commit violent crime – only racists like Sunette Bridges and Steve Hofmeyr believe otherwise – but not all violent criminals receive the same quality of justice.

The outcome of a case may dependent upon factors such as the way the case is investigated by the police (the richer and more famous the victim, the better the investigation is likely to be), the way the case is presented by the prosecutor, how effectively the accused is defended and the personality and particular attitude to capital punishment of the trial judge.

As Chaskalson pointed out in Makwanyane:

Most accused facing a possible death sentence are unable to afford legal assistance, and are defended under the pro deo system. The defending counsel is more often than not young and inexperienced, frequently of a different race to his or her client, and if this is the case, usually has to consult through an interpreter. Pro deo counsel are paid only a nominal fee for the defence, and generally lack the financial resources and the infrastructural support to undertake the necessary investigations and research, to employ expert witnesses to give advice, including advice on matters relevant to sentence, to assemble witnesses, to bargain with the prosecution, and generally to conduct an effective defence. Accused persons who have the money to do so, are able to retain experienced attorneys and counsel, who are paid to undertake the necessary investigations and research, and as a result they are less likely to be sentenced to death than persons similarly placed who are unable to pay for such services.

There is one kind of justice for the rich and another for the poor. This means that the imposition of the death penalty will at least partly be influenced by factors that have nothing to do with the relative blameworthiness of the criminal.

To allow for the imposition of the death penalty where a person’s race or class, or the race or class of his or her victim, will potentially play a role in whether the murderer lives or dies, flies in the face of the most basic values enshrined in our Constitution.

Of course, it is not only when the death penalty is imposed that the criminal justice system does not treat all people the same. It is imperative that the state and the judiciary begin to grapple with this grave injustice and start addressing the inherent inequalities in the system.

But the injustice is more severe when the death penalty is imposed and where a person is executed. The death penalty is final and if a mistake is discovered after a person has been executed there is no way of even beginning to rectify the mistake.

Unjust imprisonment is a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable.

Campaigns to reintroduce the death penalty are counter-productive. They detract attention from the true causes of violent crime – including unconscionable inequality and deprivation, and ineffective policing – and create the false impression that there is a magic bullet to deal with violent crime in our society. Instead of clamouring for the return of state-sanctioned killing, citizens should demand that the state speed up the eradication of inequality and improve the manner in which crime is investigated and prosecuted.

Pity so many citizens are blinded by their desire for revenge and cannot see that their talk of reintroducing the death penalty give our politicians a free pass.