Constitutional Hill

December, 2009:

In a democracy, suckers will be sucked

Dec 7th, 2009
by Pierre De Vos.
70 comments

When someone (like myself!) criticises the President of the day (for making homophobic statements, say, or for appointing a dishonest lackey as head of the prosecuting authority), it is often said that such criticism is wrong because it does not show respect for the incumbent head of state as an individual and also insults the Office that he holds.

Zapiro, for example, has been lambasted for drawing our President with a showerhead on his head while the Presidency appeared to get rather upset when I used intemperate language when criticising his purported appointment of Menzi Simelane as the head of the National Prosecuting Authority (NPA).

There are, of course, good strategic reasons for the Presidency to pick fights like this. It can change the public narrative and can divert attention from the real scandals – which would usually be the unlawful or scandalous behaviour of the head of state himself. By creating a scapegoat, supporters of the President who might have a complete lack of understanding of what vigorous debate in an open and democratic society should entail, can be made to forget that their leader has acted in a way not becoming of a person who should enjoy our trust and respect.

Similarly there may be good strategic reasons for not attacking the Head of State in over the top or intemperate language as this provides the Presidency with an opportunity to divert attention from the actions of the Head of State, actions that may appear to be illegal, blatantly self-serving or unconstitutional. Such attacks can also lower the tone of democratic debate and before we know it we might all be speaking in dumbed-down soundbites or utter thuggish threats (like Julius Malema has  a habit of doing) instead of talking about the real issues facing our nation – including poverty, crime and corruption. 

However, if one leaves such strategic considerations aside, there is a more fundamental principle regarding freedom of expression at stake in such cases. The assumption underlying statements by the Presidency and some of his supporters that one has a duty to show respect for the incumbent head of state, both as an individual and for his office, is profoundly anti-democratic.

In a constitutional democracy the Head of State is entitled to LESS respect than the rest of us, not to more respect as the Presidency and some of his supporters sometimes argue.

This is because as the Head of State, the President is also a politician and usually the head of a political party. He has chosen to embark on a career in the public eye that is at the heart of our democracy and what he says and does is of profound importance to our democracy and to our lives. If the President says or does something to endorse homophobic violence, for example, it could embolden others to attack gay men and lesbians whose very lives might be endangered by such action.

As citizens we therefore have a rights and a duty to criticise what the President says and does because without such criticism there can hardly be any talk of real democracy. If we choose to express this criticism in harsh terms or intemperate language we might be strategically dumb. However, it should really be tough luck for the President who should not have chosen a career in politics if he was thin-skinned. Just ask Barack Obama or Tony Bliar, who have both endured extraordinary viscious personal attacks over the years. (When one types “gangster” and “Barack Obama” into Google more than a million hits appear.) As my Mother used to say: “If you are a sucker you must be prepared to be sucked.”

It might be strategically dumb to call the President a gangster, but it is not necessarily unlawful or unacceptable.

Some might argue that my view cannot be squared with “African tradition” as us Africans have a culture of respecting our leaders - no matter what they do or say. (Obviously Julius Malema will not make this argument, but that is a story for another day.) They would be wrong.

You do not have to take my word for it. Instead I could refer you to a 1998 opinion of the African Commission on Human and Peoples’ Rights which dealt with just such a case. The African Commission was set up in terms of the African Charter on Human and Peoples’ Rights, which South Africa has signed and ratified and is bound by, and the Commission can hear individual complaints of human rights abuses by African states and can issue authoritative findings about breaches of the African Charter.

In Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project vs Nigeria the Commission had to deal with the actions of the then military dictatorship in Nigeria when 50,000 copies of TELL magazine were seized by heavily armed policemen and other security officers on the printer’s premises. That week’s issue was entitled: “The Return of Tyranny – Abacha bares his fangs”. The story involved a critical analysis of certain legislation enacted by the military government which ousts the jurisdiction of the courts. The magazine had in effect called the head of state a tyrant and so action was taken against them.

The Commission had to interpret article 9 of the African Charter which states that “every individual shall have the right to receive information”; and “every individual shall have the right to express and disseminate his opinions within the law”. It found that the Nigerian government had breached this article:

In the present case, the government has provided no evidence that seizure of the magazine was for any other reason than simple criticism of the government.  The article in question might have caused some debate and criticism of the government, but there seems to have been no information threatening to, for example, national security or public order in it. All of the legislation criticized in the article was already known to members of the public information, as laws must be, in order to be effective.

The only person whose reputation was perhaps tarnished by the article was the head of state.  However, in the lack of evidence to the contrary, it should be assumed that criticism of the government does not constitute an attack on the personal reputation of the head of state. People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether. It is important for the conduct of public affairs that opinions critical of the government be judged according to whether they represent a real danger to national security.

The African Commission is therefore of the view that unless statements critical of a Head of State threaten national security (by inciting the overthrow of the government, say) they are protected by the right to freedom of expression. Ridiculing the Head of State by, say, drawing him with a showerhead on his head can never be said to  threaten national security.

Of course, a Head of State can embark on a politically highly risky strategy of instituting a defamation claim against the person who criticised or ridiculed him, but then – as often happens with defamation cases – the President himself will be subjected to judicial scrutiny – which could backfire quite badly. Just ask Ronald Suresh Roberts.

Pulling a Menzi Simelane

Dec 3rd, 2009
by Pierre De Vos.
71 comments

In the past I have been critical of the way in which the Judicial Services Commission (JSC) has been fulfilling its constitutional obligations as required by the Constitution. The preposterous decision of a majority of members on the disciplinary committee of the JSC (all but one of the lawyers on the JSC committee voting with the minority) to gloss over the blatant lies of one or more of the parties in the battle between the Constitutional Court and Judge President Hlophe, is a case in point.

The JSC has not always covered itself in glory and some of its members, whose ego’s seem disproportionately large compared to their intellects, have made fools of themselves by bullying candidates for appointment or by making statements (including blatantly homophobic statements) which display a serious lack of commitment to the values of the Constitution.

Unlike Ngoako Ramatlhodi, who believes the JSC may not be criticised (unless the criticism emanates  from Judge President Hlophe or the ruling party, of course), I believe we all have a right and a patriotic duty to subject the actions of the JSC to critical scrutiny and to lambast it if we think it is not doing its job properly. That is what democracy is surely all about.

Yet, such criticism should be based on the facts and on a plausible interpretation of the Constitution and the law. That is why I take issue with an article written by James Myburgh and published on Politicsweb, in which he launches a scathing attack on judicial transformation in South Africa. Myburgh was upset with innocuous remarks made recently in Johannesburg by former South African, Margaret Marshall, who is now the Chief Justice of the Massachusetts Supreme Judicial Court, In the Bram Fisher Memorial Lecture at the Legal Resources Trust, Marshall said:

In its fifteen years of constitutional democracy, South Africa has made remarkable strides in creating a diverse judiciary of distinction. You have done so on a far faster, and more impressive scale than we have…. The diversity of your courts is, and should be, great cause for pride and celebration.

Myburgh points to the entirely uncontroversial remarks by President Jacob Zuma in June this year to bolster his case that the appointment of judges is now an entirely racist affair. Zuma said then that the “transformation of the judiciary entails amongst others having a court system that the people of South Africa have confidence in. Obviously as part of this, we need to ensure that judicial officers reflect the demographics of our country”. Myburgh then continues:

Marshall is certainly correct to claim that the ANC has attained its racial goals in the judiciary speedily and on an impressive scale. Whether this is “great cause for pride and celebration” is more open to question. It represents, for one thing, the triumph of extreme racism. One of the founding texts of modern German anti-Semitism – Adolf Stoecker’s 1879 pamphlet “What we Demand of Modern Jewry” – called for the “limitation of appointments of Jewish judges in proportion to the size of the population.” Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa?

Such over the top criticism, it seems to me, is singularly unhelpful as it completely denies the political imperative of transforming our judiciary to make it more legitimate and to rectify the past racial discrimination in the appointment of judges. By equating Nazi Germany with present day South Africa, Myburgh ignores three hundred years of racial oppression in South Africa and fails to see that as a matter of ethics and of law there is a need for the racial and gender transformation of the judiciary. Surely a more racial and gender diverse judiciary is one of the (many) requirements for the establishment of a more legitimate legal system.

In fact, he also ignores section 174(2) of the Constitution which states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. To call the JSC’s preference for the appointment of suitably qualified black men and women as judges a “triumph of extreme racism” also directly contradicts the views expressed by the Constitutional Court in Minister of Finance v Van Heerden which stated that our Constitution’s equality guarantee does not only allow for different treatment on the basis of race to correct past injustice, but sometimes demand it.

Pulling a Menzi Simelane, Myburgh chooses to ignore the authoritative interpretation of the Constitution by our highest court in order to further a narrow political agenda. This is because he attacks the very principle enshrined in our Constitution that requires a racial transformation of the judiciary. He obviously believes that race should play NO role in the appointment of judges, a position that is legally untenable and unethical, given our history of racial oppression and the provisions in our Constitution.

This does not mean, of course, that the JSC should not be criticised for the manner in which it has gone about its constitutionally mandated task. It has made some really bad appointments in the name of judicial transformation. (The appointment of John Hlophe as Judge President of the Cape High Court and Carol Lewis to the Supreme Court of Appeal are two prime examples of this affirmative action policy going very wrong.)

What is needed is a more nuanced approach to this issue, including – as pointed out on this Blog before – an engagement with the way in which the legal profession is structured and the racially skewed briefing patters at the bar. (In this regard I note with interest that Menzi Simelane asked a white lawyer, David Unterhalter, to provide him with arguments to defend himself against the findings of the Ginwala Inquiry and the recommendations of the Public Service Commission that he should face disciplinary charges.)

Making wild statements comparing South Africa and Nazi Germany detracts from these real issues with which we have so far not engaged with sufficiently.

Simelane: more unanswered questions

Dec 2nd, 2009
by Pierre De Vos.
64 comments

Why did Minister Jeff Radebe fail to address what appears to be one of the most egregious acts of dishonesty on the part of Adv Menzi Simelane? In his half-hearted defense of Adv Simelani, Radebe failed to explain why Simelane did not produce a letter, written by then President Thabo Mbeki to the then Minister of Justice regarding the Jackie Selebi case – even after being lawfully requested to do so.

On 22 October 2007 Vusi Pikoli’s lawyers wrote a letter to Adv Menzi Simelani, then Director General in the Department of Justice. The letter stated, inter alia:

May we please have copies of all communications and other documents relating the investigation and prosecution of Mr Selebi  which you or your Department may have sent to or received from the president or anyone in the Presidency at any time since 15 September….

This request seems pretty clear. Any half-way honest person would have understood what it meant. It must be conceded that a careless or overworked person might not have provided all the documents as requested because of an oversight or negligence.

A dishonest person, on the other hand, would have deliberately chosen not to provide all the documents as requested or would have followed instructions from his boss to be dishonest and to lie. Unless something far more sinister is at work here, Adv Simelane’s failure to produce this letter – a failure curiously not addressed by Radebe at all – suggests that he is a man who will deliberately try to mislead legal opponents by hiding information lawfully requested by them in order to protect the President.

During cross examination Simelane first conceded that the letter allegedly written by thenPresident Mbeki falls squarely within the ambit of documents requested. Yet Simelane wrote back after the request mentioned above was received and stated as follows:

We are not in posession of any documents relating to the investigation of the National Commissioner of Police, save for reports prepared by your client [Pikoli].

When first asked by Trengove why the letter was not produced Simelane said:

Well, I wasn’t informed about the letter, I became aware of the letter much later.

But later Simelane conceded that he was aware of the letter, which means his first statement was not truthful. Although he had not read it, Simelane claimed, he knew the President had sent a letter to the Minister. It was this very letter which led to the writing of another letter by Simelane which was later signed by the Minister (ordering Pikoli to stop the arrest of Selebi).  Yet he did not provide Pikoli’s lawyers with the letter as requested. Worse, he stated that there was no such documents in their possession.

When confronted about this, Simelane again changed his story and said that he did not think the letter by the President, requesting more information on the Selebi matter, related in any way to the investigation against Mr Selebi. This is unfortunately not a line of argument that could reasonably be pursued without losing every shred of credibility one might have had as a witness.

Trengove then pounces:

Trengove: You said: we have no such documents in our possession. And I want to know who decided to tell that lie. You or the Minister?

Later Simelane contradicts himself yet again and tells another wopper when he says:

No, we didn’t, we didn’t deny that the letter was there.

This is of course not correct. Simelane had written to Pikoli’s lawyers denying that there were any documents relating to the Selebi investigation in the posession of the Department. Yet the President’s letter – which he admitted he was aware of – dealt directly with the Selebi investigation. With Adv Trengove we should ask: Did Simelane decided to lie of his own accord or was he instructed to lie by the Minister, the President or any legal advisor of the President?

What makes this so curious is that the letter allegedly written by then President Mbeki to the Minister of Justice one day before the Minister of Justice signed a letter drafted by Simelane instructing Pikoli not to proceed with the arrest of Selebi does not contain the smoking gun evidence Pikoli had hoped for. The content of the Ministers letter, which contained the unlawful instruction to Pikoli not to proceed with the arrest of Selebi, seems to go much further than the request contained in Mbeki’s letter, which merely asked for more information on the Selebi case (information, we now know, which the President had already been given by Pikoli).

A conspiracy theory is doing the rounds that Simelane had not produced the letter because it contained an illegal instruction from then President Mbeki to have the arrest of Selebi stopped. According to this theory, another letter was conjured up after the fact when it became clear that it would have had to be produced to the Ginwala inquiry.

I am not sure I buy this. Surely Mbeki and his advisers would not have deliberately concocted fake evidence to escape responsibility for their unlawful actions? A more plausible explanation is that Simelane decided to lie about the existence of the letter because it showed that the suspension of Pikoli was directly related to the pending arrest of Selebi. At the time, President Mbeki had denied that the suspension of Pikoli had anything to do with the impending arrest of Selebi and this letter provided proof that Mbeki’s claim could not be sustained.

To protect the person who had appointed him, Simelane then misled Pikoli and the Inquiry by not producing the letter written by the President – despite being requested to do so and despite having a legal duty to do so.

Minister Radebe failed to explain why this action by Simelane does not warrant disciplinary action against Simelane. This is because there is no plausible explanation for this failure to produce evidence which Simelane had a legal duty to hand over.

This sorry tale provides more proof that Simelane is a man who is so loyal to his political bosses that he would try to hide the existence of evidence that would make his boss look bad. No wonder he was purportedly appointed by President Jacob Zuma as National Director of Public Prosecutions. With such a guy heading the NPA, President Zuma clearly has nothing to worry about on the legal front – even if the decision to drop charges against him is declared invalid.

World Aids Day

Dec 1st, 2009
by Pierre De Vos.
14 comments

Today is World Aids Day. In South Africa, perhaps more than anywhere else in the world, we may want to take a moment to ponder the significance of this day as South Africa now has more H.I.V.-infected people and annual AIDS deaths than any other in the world. As someone personally affected by HIV, this is an important issue for me. 

We may observe a moment of silence for the hundreds of thousands of people who have already died of AIDS related illnesses in South Africa. Many of them died needlessly because of the greed of pharmaceutical companies, the criminal neglect of some of our public health system officials and the madness that was then President Thabo Mbeki’s flirtation with AIDS denialism. With some notable exceptions, one must also decry the lack of leadership from many politicians across political party lines who through their actions, utterances or silence have contributed to the stigma and shame that still attach to HIV and prevent many South Africans from getting tested and treated for this manageable disease.

Ten years ago then President Thabo Mbeki first suggested that AIDS drugs could pose “a danger to health” in a speech to Parliament, setting the stage for the denialism and obfuscation to follow. This year, for the first time in ten years, World Aids day is not the depressing event filled with anger and frustration at all the wasted lives that we have become accustomed to over the previous ten years. Last month President Jacob Zuma made a ringing speech in which he rejected the absurdities of the Mbeki era and stated:

South Africans must know that they are at risk and must take informed decisions to reduce their vulnerability to infection or, if infected, to slow the advance of the disease. Most importantly, all South Africans need to know their H.I.V. status, and be informed of the treatment options available to them.

What we tend to forget is that we would not be where we are today if it was not for the Treatment Action Campaign (TAC) and for the Constitutional Court. The TAC took on Mbeki and his government at the height of Mbeki’s power. It played a brilliant and strategically astute role in challenging the government’s confusing, intellectually arrogant and destructive, and often heartless policies and actions on HIV.

Making use of a combination of political mobilisation and legal action, the TAC won a famous victory in the Constitutional Court. This forced the then Minister of Health to swallow her words – uttered live on the TV news – that she would refuse to obey a Constitutional Court order to provide ARV’s to HIV pregnant mothers to save their new born babies from HIV infection.

The Constitutional Court, arguably going further than it had in the Grootboom case, found that the government had acted unreasonably by restricting the provision of ARV’s to HIV pregnant mothers to a few pilot sites. The Court rejected all the arguments presented on behalf of the Minister (the same arguments which President Mbeki also peddled) regarding the efficacy and dangers of ARV’s and found that the government action was so unreasonable that it was acting unconstitutionally by preventing poor women from accessing life saving ARV’s  for their babies.

Shortly after this judgment was handed down I attended a workshop with members of the Department of Health to discuss the possibility of providing wider access to ARV’s to South Africans living with HIV. Two things struck me at that meeting: all the officials were terrified of Tshabalala-Msimang and all the officials were terrified that their HIV policies will be successfully challenged in the Constitutional Court.

Shortly afterwards the government announced that it would progressively roll our ARV’s to all who needed it. Without the TAC and without the potent judgment of the Constitutional Court, this would not have happened and many more people may have died needlessly. Some lawyers dismiss the social and economic rights (including the right of access to health care) enshrined in the Bill of Rights on the basis that the do not mean much and has little effect. But they forget that these rights have an effect not only in courts but also more broadly.

The TAC understood from the start that the right of access to health care in the Bill of Rights provided them with a tool through which it could mobilise civil society and the ANC alliance partners against Mbeki and his allies. They understood that social and economic rights battles should be waged strategically, both inside courtrooms and on the streets.

Much still has to be done to fix the HIV/AIDS mess. Many poor people and people in our prisons still die because they have no access to ARV’s. Some government officials still peddle the utterly counter productive ABC message of prevention instead of focusing on condom use and the difficulties experienced in our patriarchal culture by many vulnerable women in trying to protect themselves from infection. But at least something is being done.

Meanwhile, I can only hope that former President Thabo Mbeki (for once) takes advice from Zwelenzima Vavi and apologises for the way in which his government dealt with HIV. Who knows, an apology might even enhance his reputation, which must surely be at rock bottom in South Africa at the moment.

Apology to President Zuma

Dec 1st, 2009
by Pierre De Vos.
112 comments
Last week on this Blog I critised President Jacob Zuma for purporting to appoint Adv Menzi Simelane as the National Director of Public Prosecutions and pointed out – correctly in my view – that the appointment shows an utter disregard for the Constitution and the law. In my criticism – which I believe to be valid and based on the proven facts and a correct interpretation of the law and the Constitution – I unfortunately reverted to the kind of intemperate language, which sadly has become all too common in our political discourse, by referring to our President as a “gangster”.
 
I regret using such intemperate language, which detracts from the substantive debate regarding the unfitness of Adv Menzi Simelane to hold office as the National Director of Public Prosecutions. I wish to apologise unreservedly to our President for the use of this intemperate language which, as the Presidency points out, does not contribute to the healthy and respectful debate so needed in our democracy.
 
However, I do call on our President to reconsider the appointment of Adv Menzi Simelane as the National Director of Public Prosecutions as this appointment is not in the interest of the country and the smooth running of the criminal justice system. Given the serious questions about Adv Simelane’s fitness to hold office, reasonable people – including myself – will continue to speculate about the true reasons for the appointment which indeed, shows a disregard for the law and the Constitution as well as for the independence of the National Prosecuting Authority.
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