Constitutional Hill

January, 2010:

Fifa World Cup: bad for human rights?

Jan 29th, 2010
by Pierre De Vos.
50 comments

When South Africa won the right to host the 2010 Fifa World Cup many of us danced in the streets (in a manner of speaking). Finally, we had won the right to host a really major international sporting event (no offence to rugby and cricket, but those World Cups were Micky Mouse compared to the Fifa event.)

We all remembered the Zapiro cartoon published after Cape Town lost the bid to host the 2004 Olympics to eventual host city, Athens: A dejected Capetonian dragging a “Cape Town 2004″ banner behind him is seen saying: “Athens se ma se….” Now it would be our time to shine on the international stage – and make some money too.

How naive we were.

We did not realise that Fifa was a rather shadowy body with authoritarian tendencies. We did not realise then that the Fifa fat-cat executives cared little about South Africa and its people and very much about making obscene profits while placing impossible demands on the host country. 

Fifa demanded that the Cape Town soccer stadium be built in Greenpoint and not where it was needed in Athlone because it would look good on TV – and the city jumped. Fifa demanded that host cities do something about “the homeless problem” – and once again the host cities jumped, embarking on probably illegal action to intimidate the most vulnerable and marginalised in our society and arresting and intimidating the homeless.

Now we learn that Fifa is imposing impossibly draconian conditions on journalists who wish to be accredited with Fifa.

Fifa’s terms and conditions for the accreditation of journalists state that news organisations may not “harm the reputation of the Fifa World Cup” or “engage in conduct which expresses … charity or ideological concern (sic) related views, which could impair the enjoyment of the Fifa World Cup by other spectators, or detract from the sporting focus of the Fifa World Cup”.

Well, I have news for Fifa: these conditions are most probably unconstitutional. Unlike in many other constitutional democracies, our Bill of Rights does not only apply to the state. Because the drafters of the South African Constitution understood very well how individuals and powerful organisations like Fifa could infringe on the rights of ordinary citizens, it ensured that the Bill of Rights applied not only vertically (protecting us from abuse of power by the state) but also – in certain circumstances – horizontally (protecting us from the abuse of power by private individuals and institutions).

This does not mean that I cannot chase someone from my house if he or she makes a racist statement on the grounds that I would be infringing on that person’s right to freedom of expression. After all, limiting a person’s freedom of expression to say what he or she likes in my private home will have no consequences for our democracy, for the free flow of information and for the public’s right to know what is going on in the country.

It does mean, however, that Fifa is probably constitutionally prohibited from imposing such draconian restrictions on journalists.

The difference between my two examples is that Fifa is an extremely powerful body and holds a near monopoly on providing access to journalists to report effectively on the World Cup. Journalists who do not get accreditation from Fifa would be at a distinct disadvantage when reporting on the World Cup and they are therefore placed in an untenable position: either agree to the Fifa censorship or lose out.

But if journalists cannot report fairly and accurately about Fifa and the World Cup because they are forced by Fifa to censor themselves, the right of the general public to be fully informed about the World Cup and to be told both the good and the bad things about it would be severely limited. I suspect this kind of censorship that Fifa wishes to impose therefore unconstitutionally limits the right to freedom of expression and a free media guaranteed in section 16 of the Constitution.

Lawyers for the big media houses have written to Fifa to point this out to them, so the ball is now in Fifa’s court. One suspects they will play hardball and will try and intimidate the media to enforce their censorship on everyone. After all, Fifa is used to getting its way. Hopefully the media will stand its ground and will go to court on behalf of the nation as a whole to ensure that our news on the World Cup is not censored in the way.

This World Cup is not a private affair. Billions of Rand of public money have been spent on the World Cup in building stadiums and upgrading infrastructure and much more of our money will be spent on security for the event. South Africans therefore have a right to know about both the good and the bad things about the World Cup and about Fifa.

If Fifa demands from the government that it arrest protesters or remove the homeless from the streets, journalists should be free to report on this and should not fear that their accreditation will be revoked if they tell us about it.

Obviously Fifa would not like this – just as governments generally do not like this. But luckily we live in a constitutional democracy where even a bully like Fifa has to play by the rules. Let the games begin.

Nationalisation of the Reserve Bank?

Jan 28th, 2010
by Pierre De Vos.
30 comments

I was rather intrigued by news reports that Gwede Mantashe, Secretary general of the ANC, has hinted that the ANC-led government should consider nationalising the South African reserve Bank (SARB). Mantashe said that the “South African Reserve Bank is one of less than five central banks in private hands in the world”.

My first thought was a rather naive one: Surely that cannot be right? How can the SARB be privately owned? And if it is privately owned, who owns it and how can I buy some of those shares (that is, assuming I had any money to buy the shares with)? It would be rather nice to say I own part of the South African Reserve Bank and, I imagine, it would be a rather safe investment.

Well, Mantashe was right – sort of. When the SARB was established it was common practice for central banks to have private shareholders and as the Bank explains on its website:

The ownership structure of the SARB, however, has not been amended since its inception. It is a juristic person in terms of its own Act. The SARB has some 600 shareholders and its shares are pre-dominantly traded on an over-the-counter trading and transfer facility. The SARB is one of only nine central banks with shareholders other than the governments of their respective countries.

So, does this mean that getting rid of those private shareholders is a good idea or that it is constitutionally feasible to nationalise the SARB?

Section 224 of the Constitution states that the primary object of the SARB “is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic”. In pursuit of this objective, it “must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters”.

The constitutional position of the SARB is thus quite similar to that of the National Prosecuting Authority (NPA): its independence is constitutionally guaranteed and the government of the day is prohibited from interfering with the day to day running of the Bank or any of its decisions. (Menzi Simelane, the man purportedly appointed by President Zuma to head the NPA, might of course disagree with this blindingly obvious constitutional fact – either because he is very ignorant or very dangerous – but that would not change what the law says.) At the same time the Bank is required to interact with the government to ensure that the broad policy objectives of the Bank and the government are aligned.

Nationalising the SARB will not change this at all – unless the Constitution is amended to abolish the independence of the SARB to allow the Bank to follow the instructions of the government of the day. If Mantashe meant to say that it was perhaps necessary to abolish the independence of the Bank, he was obviously smoking the strong stuff from Swaziland or the former Transkei because we all know what will happen if the Bank started acting in the interest of a strong clique within the governing party.

If that happens the Bank will start to print money to finance the lavish lifestyles of the right kind of party faithful and to buy the loyalty of cadres and before we know it we will all become Rand millionaires and acquire terrific numeracy skills (without any assistance from the Minister of Education), as we will be running around with R10 00000000000 notes in our pockets to pay for a loaf of bread.

It does seem rather strange that the SARB has private shareholders though, but in practice this makes no difference to how the Bank operates. While seven of the fourteen members of the Board are appointed by the President and seven more are appointed by shareholders, the Governor of the Bank has a deciding vote on the Board, giving control of the bank to those appointed by the President. Shareholders cannot remove the governor or the other members of the Board and have very little power over the Bank.

The SARB Act can be amended without any constitutional problem to abolish private shareholding in the Reserve Bank – as long as those shareholders are adequately compensated. But, once again, this will make no difference to how the Bank operates as its independence is constitutionally guaranteed.

The “debate” about the nationalization of the Reserve Bank is therefore a red herring to hide disagreement in the ANC about more fundamental economic questions within the ANC alliance.

The larger economic question (which I am not in a position to address) is whether the Bank’s broad policies on inflation targeting, agreed to by the Bank and the Minister of Finance, is good or bad for the working poor and the unemployed. Those who are calling for the nationalisation of the Bank should rather engage the Minister of Finance (who the last time I checked was a communist) about the broad government policy framework on inflation targeting and interest rates if they wish to change the policies of the Bank.

Nevertheless, if anyone has some Reserve Bank shares they want to give away in the name of transformation I will be happy to accept on the basis of representing the gay and lesbian lobby! Given the overwhelming influence of money on our politics (Tokyo Sexwale gave lots of shares to influential opinion makers – remember Xolela Mangcu? – to buy some good publicity for himself and for Jacob Zuma) one of those Reserve Bank shareholders might believe if they give me some shares I will sing the praises of one politician or another.

I am happy for them to think that giving me shares will help their cause and will gladly take the shares – and then write exactly what I like in any case.

Just a (tongue in cheek) thought.

More questions on the AbaThembu King

Jan 26th, 2010
by Pierre De Vos.
9 comments

Very few people – least of all anyone in government – seem to be taking seriously the claim by Votani Majola, lawyer for King Buyelekhaya Dalindyebo, that the AbaThembu tribe had seceded from South Africa. This is curious, given the fact that Dalindyebo was confirmed as the only King of the AbaThembu in 2008 by a Commission set up in terms of the Traditional Leadership and Governance Framework Act.

Dalindyebo’s actions might seem laughable, but he has quite an impressive family history and one would suspect the reason why the authorities are not making a big noise about this is that they do not want to inflame the passions of some of the Kings subjects. Dalindyebo is a descendent of Paramount Chief Sabata Dalindyebo who resisted efforts by Kaizer Matanzima to co-op him into supporting “independence” for the Transkei. Matanzima did everything in his power to depose Sabata as paramount chief.

Ironically Mantanzima succeeded only in 1980 when a Transkei court found Sabata guilty of violating and injuring the dignity of the state president. Sabata had told a gathering of more than 1 000 people at his Sithebe Great Place that he had refused an offer from Matanzima to become the first president of Transkei because homelands were “pigsties and dummy institutions”. Sabata fled the Transkei and ended up in Zambia, where he threw in his lot with the African National Congress and later died.

Recent events are therefore – to say the least – rather ironic. The media reported last week that Majola, the lawyer for the AbaThembu king, had served a “secession notice” on Parliament and quotes Majola as saying that the “AbaThembu Tribe have seceded from South Africa. The sooner the nation aligns with this reality and start preparing to form the State of Thembuland the better”. Majola said the nation was no longer part of South Africa and that the ANC-led government would have no say in the new independent state, which would be headed by Dalindyebo.

Dalindyebo was sentenced in the Mthatha High Court in December for crimes including culpable homicide, kidnapping, arson and assault with intent to do grievous bodily harm. He is obviously a rather eccentric character because he claimed R80 billion in compensation from the government for the indignity he suffered when he was sentenced to a term of 15 year imprisonment. Some analysts also claim that Dalindyebo is being persecuted because many of his subjects voted for the UDM in previous elections.

Obviously, the statements of the King’s legal representatives and the delivery of a secession note will not have any legal effect and Dalindyebo and all his subjects remain South African citizens. In the absence of specific unlawful acts by Dalindyebo or his subjects to undermine the authority of the South African state, it is thus understandable that the government is pretending this farce is not really happening.

But a few interesting legal questions do arise. The King is being paid almost a million rand a year by the South African government in accordance with the Remuneration of Public Office Bearers Act, which provides for the payment, amongst, others, of Kings and other traditional leaders. What will happen if the South African government stops paying him on the basis of his own claim to secession? I suspect the government could not stop payment as the secession is not legally valid and Dalindyebo thus remains the King – despite all the bluster by his legal representative.

But section 10 of the Traditional Leadership and Governance Framework Act does provide for the removal of a King, in which case he will lose the payment. This can happen where a King has been convicted for an offence and given a sentence of imprisonment for more than 12 months and the Royal family requests the President to remove the King. In such a case the next in line to the throne will be invested as the new King.

One wonders whether the present posturing does not have to do with the internal politics of the Royal family and whether the King is not trying to pre-empt any effort to remove him as King.

Lastly, a larger set of questions comes to mind: why is it that the South African tax payer is paying kings and traditional leaders such exorbitant amounts of money? What value do we get for our tax money from this system? What is it exactly, say, that King Goodwill Zwelethini does that warrants the payment of large amounts of public money to him to furnish a lavish lifestyle? Is the notion of Kings, kingdoms and traditional chiefs to be squared with a constitutional democracy at all or is it not profoundly undemocratic?

I am a Republican at heart and have always thought it was utterly ridiculous that Britain had a Queen who dressed up in funny hats, spoke in a constipated accent and travelled around her country opening factories while smiling benignly and waving to the crowds. Surely in a democracy one should not be considered better than anyone else merely because you were supposedly born to be a King or a Queen? So why do we have this same ridiculous notion in South Africa, given the fact that the traditional leadership system in our country have been thoroughly corrupted by colonialism?

The ANC used to be opposed to these anti-democratic leaders who are part of a system that was bastardised and exploited by the colonial masters and later by the apartheid government to ensure white control over the local population. But in recent years the ANC has decided to embrace the traditional leaders and has forgotten its own critique of the system which is not really in line with the achievement of the National Democratic Revolution.

What happened?

BLA in need of a PR makeover?

Jan 25th, 2010
by Pierre De Vos.
72 comments

Some people who have not come to grips with the notion of substantive equality and think that equality is about the equal treatment of everyone under all circumstances, get very cross about the existence of organisations like the Black Lawyers Association (BLA). “It’s racist!” they shout. “It’s discriminatory!” “How very dare they!”

I am not one those people.

In a country where, 16 years after the advent of democracy, less than 20% of practicing advocates are black and where work are often dished out on the basis of links to the old boys network (reinforced by old school tie loyalties, language and racial affinities and prejudices and friendships forged on golf courses), it would be impossible to argue that race and sex do not play an exclusionary role in the legal profession.

Many women and many black lawyers do not do as well as they would have done had they been white men. In that context, it seems perfectly acceptable for an organisation like the BLA to look after the interests of its members and to agitate for changes to the legal profession to contribute to the real transformation of the profession and to eliminate the implicit or explicit racism and the sexism which limits the professional opportunities of (especially young) female and black lawyers.

This is a matter of principle as our Constitution prohibits unfair discrimination based on race and (as the Constitutional Court found in the Van Heerden case) places a positive duty on the State to promote the achievement of equality, by adopting legislative and other measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination in the past”.

I therefore have some sympathy with the BLA who this weekend issued a statement threatening to go to court to force the Ministry of Justice to speed up the process of passing a new Legal Practice Bill. BLA general secretary Babalwa Mantame told a newspaper on the weekend that the BLA was considering launching a “class action” to persuade the courts to force the Minister to introduce the Bill. The report say the BLA has issued a newsletter to its members announcing that the BLA and its partner – the National Association for Democratic Lawyers (Nadel) – would a seek class action against the Justice Ministry over the Bill’s slow progress

The reason for the unhappiness of the BLA is that it believes the Bill – if passed – will give black lawyers more government work. Mantame told the media that Justice Minister Jeff Rabebe and his Ministry were sitting on a key piece of legislation on which work began a decade ago. She said the Legal Practice Bill would – among other things – stipulate employment equity and BEE rules for any law firm wanting government work. Mantame said Radebe had promised to speed up the Bill’s path to Parliament, but with no results.

There are two interesting questions that arise.

First, given the Constitutional Court’s articulation of the separation of powers doctrine in the Glennister case and other judgements, will the court really order the Minister to pass this piece of legislation if the BLA follows through on its threat? I suspect the Court will only consider doing so if it finds that the failure to pass the Bill constitutes a fundamental infringement of one of the rights in the Bill of Rights (in this case the right to equality and the positive duty to pass legislation designed to address the effects of past discrimination in education and in the legal profession).

The problem is that in an obscenely unequal society like South Africa in which much of the inequality is race and gender based, much still needs to be done to address the effects of past discrimination and it would be rather difficult for a court to decide that this piece of legislation is more important than, say, the taking of other measures designed to ensure that the children of poor parents get a decent education or that poor people in Khayelitsha get toilets (but this time with walls).

Why should the court prioritise the needs of middle class black lawyers above the needs of working class and poor citizens who might be far worse off than the lawyers who happen to be members of the BLA? Given this obvious problem I suspect a court challenge will not get anywhere.

Which brings us to a second question, namely whether the BLA could not have framed their concerns in a way that appeared more sensitive to the broader context of poverty and deprivation and thus appeared less selfish and blatantly self-interested. Surely most reasonable people can agree that it is important to address racial discrimination and the effects of racial discrimination in order to build a more just society.

But we can also agree that giving black lawyers more government work will be great for the few black lawyers who have made it but will not really address the systemic problems in our legal system which prevent many young black men and women (and some white women too) from becoming the successful lawyers that will eventually reap the benefits of receiving government work which will, in turn, enable them to drink Moët et Chandon and Johnny Walker Black and drive around in Porsche Cayenne’s.

It seems to me the hard work in transforming the legal profession is less about providing access for a few black lawyers to the untold riches associated with government contracts and more about breaking the stranglehold of the old boys network and opening up access to the profession to a far wider pool of young people of all races and sexes.

Not that I begrudge established black lawyers their work and that I do not think providing them with access to more government work is a good thing. But from an ethical and a public relations perspective the BLA might want to think about the ways in which to frame its concerns so it looks less elitist and self-interested and more principled and concerned about the plight of the poor and the marginalised in our society. 

A lot of hot air about section 205

Jan 22nd, 2010
by Pierre De Vos.
39 comments

Minister of Police Nathi Mthetwa and members of the police force (including the Police Commissioner) are – not surprisingly – talking a lot of rubbish and making idle threats against journalists who happen to belong to an independent (as opposed to a pro-government) news organisation.

Sadly for them, but luckily for the rest of us, these threats will amount to nothing. The media fraternity who are up in arms over these moves by the Minister and the Police Commissioner should therefore also calm down and should not be so easily intimidated by the Minister and the Police Commissioner who do not have the law on their side. Journalists should laugh and ridicule our Minister and our Police Commissioner, should taunt them for the way in which they are trying to find a scapegoat for their own incompetence and then laugh at them again.

Really, one should not take this empty bluster as seriously as they do. The threats by the Minister and the Commissioner are no more than hot air (and one is not sure from which orifices the hot air is actually escaping).

I strongly suspect that in the end, nothing will happen to eNews editor Ben Said and reporter Mpho Lakaje, who were recently served with subpoenas under the Criminal Procedure Act’s section 205 for protecting the identities of the men in a video broadcast on ETV – despite the fact that the police are pressing ahead with investigations against them.

Said and Lakaje are scheduled to appear in court on Monday, unless they hand over unedited footage taken of two alleged criminals who threatened crime and violence during the World Cup and unless they provide the Police with the names and contact details of the men they interviewed, as well as information about the firearms displayed in the programme..

Mthetwa said yesterday: “We are of the view that a friend of a criminal is a criminal” while Police Commissioner Bheki Cele lashed out at e.tv for airing the footage and for protecting the identities of the “criminals”. “ETV is a crime kisser and have expressed themselves as such. My question to them is that would they have protected their sources if they threatened to kill, rob and rape their mothers?” said Cele.

Section 205 allows a judge or a magistrate to summons anyone “who is likely to give material or relevant information as to any alleged offence”. A person who refuses to appear or fails to give the required information can be sentenced to imprisonment if the magistrate or the judge is of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law and order.

The constitutionality of section 205 was attacked in the Constitutional Court in 1996 in the case of Nel v Le Roux NO and Others but, as the Justice Laurie Ackerman pointed out, this section was not unconstitutional because it was qualified by section 189(1) of the Criminal Procedure Act which states that a person summoned in terms of section 205 is not obliged to testify or to answer any particular question put or to produce any book, paper or document if has a “just excuse” for refusing or failing so to answer or to produce.

And what would a “just excuse” be?

There is considerable case law on this issue and one cannot discuss it all here, but suffice it to say that in the Nel case the Constitutional Court has stated that it would at the very least mean that any person summoned in terms of section 205 would have a just excuse not to answer questions if answering the questions would unjustifiable infringe on his or her rights.

Well, the last time I checked section 16(1)(a) of the Constitution states that ”everyone has the right to freedom of expression, which includes freedom of the press and other media”. A journalist’s freedom to gather information and report it would be dramatically infringed if he or she could not keep the identity of their sources secret.

One could imagine situations in which a journalist would not have a “just excuse” not to provide the kind of information now demanded by the Minister because his or her freedom of expression would be limited by a larger obligation to protect society from calamity. For example, where a journalist obtains information about an imminent terrorist attack that will kill thousands of people, and there would be no other way for the police to prevent the terrorist attack, the journalist will not have a just excuse not to share the information and its source with the police.

But in this particular case, the journalists merely broadcast interviews with two alleged criminals who issued vague threats of future criminality.  This obviously embarrassed the Minister and the Commissioner, but their embarrassment cannot trump the right to freedom of expression which safeguards the rights of the journalists and if they refused to answer questions I cannot imagine a court imprisoning them because they have no just excuse for doing so.

Surely also, if the Police did its job, it would be able to apprehend the alleged criminals by properly investigating the case without infringing on the rights to media freedom.

Of course in this case the journalists would therefore have a “just excuse” for not answering the questions so the Minister is barking up the wrong tree if he thinks he is going to get anything out of them.

If the Minister and the Commissioner are angry they should rather focus on how the Police can better investigate a crime and build cases that would lead to the successful prosecution of criminals and should not shoot the messenger merely because the messenger has embarrassed them and has shown how useless they really are.

Open letter to President Jacob Zuma

Jan 19th, 2010
by Pierre De Vos.
209 comments

Dear President Jacob Gedleyihlekisa Zuma

The media is reporting that you may appoint Jon Qwelane as South Africa’s ambassador to Uganda. I trust these reports are wrong and that the rumours about the imminent appointment of Qwelane were started by your enemies. Surely such damaging rumours have been spread by those who wish to re-enforce racist and Afro-pessimistic stereotypes about our leaders. Such rumours will obviously tarnish your name and will re-enforce widely held perceptions about your alleged lack of commitment to our Constitution and the values enshrined in it.

In terms of section 84(2)(i) of the South African Constitution you are empowered to make ambassadorial appointments. In exercising this power, you have a wide discretion to appoint fit and proper individuals of any political persuasion – as long as you act rationally and do not make appointments in bad faith. (You obviously have a sense of humour in this regard as you even appointed the former leader of the official opposition, Tony Leon as South Africa’s ambassador to Argentina.)

As a constitutional law scholar I have to point out that your power is not unlimited. You may not appoint someone as an ambassador if such a person had paid a bribe or if he or she is fundamentally opposed to the values and rights enshrined in our Constitution as this would be irrational, arbitrary or capricious – given the fact that you have a duty to uphold the Constitution and promote the values enshrined in it. You have, I need to point out, a duty – when appointing ambassadors – to act in terms of the law and the Constitution.

When you took office you swore an oath of office (contained in Schedule 2 to the Constitution) and you promised on that glorious day that you would “obey, observe, uphold and maintain the Constitution and all other law of the Republic”. You also promised to “protect and promote the rights of all South Africans and to do justice to all”.

The appointment of Jon Qwelane as ambassador to Uganda will not promote the rights of gay men and lesbians living in South Africa or elsewhere in Africa or the world. In fact, such an act would present a fundamental breach of your solemn promise to uphold and maintain the Constitution and the law as it will encourage hatred, bigotry and even violence against a vulnerable minority of South Africans – something prohibited by section 9 of our Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.

Qwelane has written that he agrees with the sentiments expressed by President Robert Mugabe that homosexuality:

Degrades human dignity. It’s unnatural and there is no question ever of allowing these people to behave worse than dogs and pigs. If dogs and pigs do not do it, why must human beings? We have our own culture, and we must re-dedicate ourselves to our traditional values that make us human beings… What we are being persuaded to accept is sub-animal behaviour and we will never allow it here. If you see people parading themselves as lesbians and gays, arrest them and hand them over to the police!

He also wrote that “something is rotten in this country, seriously stinking”, referring to the Civil Union Act – which you promised to uphold – as the “stabani Act”. He also slammed the Constitutional Court for wanting “to make this country the “trahssie” capital of Africa.” In addition to his bigoted opinions, the use of the words “stabani” (a derogatory term for gay) and “trahssie” (derogatory term for an inter-sexed person) are particularly repulsive.

He has also equated homosexuality with bestiality and claimed that he prayed “that some day a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the Constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women”. Qwelane therefore believes that many South Africans like myself are no better than animals and that we have no right to have our dignity and equality protected.

He is a bigot who hates a group of fellow South Africans who cause no one any harm – for no other reason than the fact that they are emotionally and sexually attracted to members of the same sex. Mr Qwelane hates us because we happen to love differently than he does (assuming that he is capable of love at all).

As you might know, the Ugandan Parliament is presently debating a Bill that would impose the death penalty (which was outlawed in South Africa many years ago) on “repeat offenders” guilty of the “crime” of homosexuality. The appointment of Qwelane as South Africa’s ambassador to Uganda would send a signal to all gay men and lesbians in South Africa, Uganda and the rest of the world that our government does not object to this Bill and that people like myself are deserving of the death penalty.

Worse, it will send a signal to bigoted and homophobic South Africans that our President and the government he leads, at best, turns a blind eye to the humiliation, degradation, assault and killing of gay men and lesbians and, at worse, endorses such behaviour. This would encourage more hatred and violence against gay men and lesbians in South Africa, who are often targeted for attack by hateful bigots who do not believe that every human being has the inherent human dignity that guarantees them equal concern and respect – regardless of their differences from the majority.

The appointment would also constitute a grave affront to the family of women like Eudy Simelane, former star of the Banyana Banyana national female football squad. Simelane was found dead in a creek in a park in Kwa Thema, on the outskirts of Johannesburg after being gang-raped and brutally beaten before being stabbed 25 times in the face, chest and legs - all because she was a lesbian. Many other lesbians have been attacked and killed over the years because of the attitudes propagated by people like Qwelane. In that regard, he has the blood of fellow South Africans – many of them women – on his hands. If you appoint him, you will similarly have blood on your hands.

It is unthinkable that you would appoint as an ambassador a racist man or woman who has written extensively about his or her hatred of black South Africans. This would be rightly unthinkable, given our traumatic past in which so many human beings were oppressed, humiliated and attacked, not because of what they did but merely because of the way they were born. Surely then, it must be equally unthinkable that you would appoint Qwelane as an ambassador to Uganda as he believes that those of us who happen to have been born gay or lesbian are worthy of vilification, hatred and discrimination.

Given the constitutional prohibition against sexual orientation discrimination and the fact that you had sworn a solemn oath to uphold the Constitution and to promote the rights of all South Africans, the appointment of Qwelane will signal a profound disrespect for the Constitution, the law and for a small but vulnerable section of our society. It would also confirm what some pessimists have been fearing, namely that you are not a man of your word and that you do not adhere to promises made – even when those promises were made under oath in front of the whole nation.

I still hope that the rumours about the appointment of Qwelane are no more than an ugly smear-campaign launched by political opponents to discredit you and tarnish your name and the name of the ANC which you lead. Please Mr President, do not besmirch your name and do not besmirch the name of the ANC, who fought for our liberation and ensured that the rights of gay men and lesbians are protected by our Constitution.

Kind Regards

Pierre de Vos 

Why no investigation of the “abuse of power” by NPA

Jan 18th, 2010
by Pierre De Vos.
17 comments

When President Jacob Zuma was still being investigated by the National Prosecuting Authority (NPA), his supporters often claimed with some conviction that there was a conspiracy against him.  Although they never claimed that the evidence – on which basis his then financial advisor,  Schabir Shaik, was convicted of bribing him – was in fact fabricated, they did claim that the NPA were being abused by President Thabo Mbeki or those close to him to neutralise Zuma politically. 

Although no hard evidence exist about the alleged abuse of power, circumstantial evidence suggest that there may very well have been some political interference in the NPA, first to ensure that Zuma was not prosecuted, then to ensure that he would be prosecuted and then finally to have the charges against him dropped.

After all, Shaik, who has recently risen like Jesus from his death bed (perhaps with the assistance of Goji berries), was prosecuted while Mr Zuma was at first not prosecuted. Later Zuma was prosecuted while many others implicated in the arms deal scandal (include Shaik’s brother Chippy) were not pursued.

When charges were dropped against Zuma after edited snippets of illegally obtained transcripts of telephone conversations between the head of the Scorpions and a former National Director of the NPA were submitted to the NPA by Zuma’s lawyer, many Zuma supporters demanded that the alleged abuses of power by NPA be investigated. The SACP, for example, demanded that:

  • All those found to have been responsible for abuse of state institutions must be immediately brought to book, irrespective of the position they occupy or may have occupied, even if the highest office in the land, in order to ensure that such things never ever happen again in our country.
  • Parliament must call the NPA and any other state institutions that may be found to have transgressed the law to fully account for their actions.

One of President Zuma’s key supporters, Mathews Phosa, made a similar demand. As the Mail & Guardian reported at the time, Phosa said:

“I call on the NPA to immediately institute an objective review, not a witch hunt … in cases within which similar actions might have negatively impacted on the rights of innocent South Africans,” Phosa told a breakfast hosted by the Progressive Business Forum at Gallagher Estate in Midrand.

“There exists a strong perception that Mr Zuma is not the only victim of this vicious, vicious misuse of power and authority, and this perception should be clarified forthwith,” Phosa said. He appealed to South Africans to “move on” however he added that in order to move forward as a nation the country could not “sweep the misuse of power under the carpet”.

I was therefore shocked when President Zuma said during his disastrous interview on ETV last week that he would not call for any investigation into a claimed abuse of power within the NPA relating to the corruption case against him. He claimed that as he was involved in the case it would not be proper for him to make any decision on an investigation and tried (rather clumsily and in an embarrassing manner) to pass the buck by saying that this was not his problem but the previous President’s problem: “These are the questions you should have asked the president then.”

A few questions arise from this response.

First, when will the SACP and Phosa issue angry statements condemning President Zuma for wanting to sweep the alleged abuse of power by the NPA under the carpet? Will Phosa and Blade Nzimande resign from the cabinet in disgust at this implicit condonation of abuse of power by the NPA? If they do not, would we be justified in concluding that they have no principles?

Second, why has the President now decided not to have the charges of an abuse of power by the NPA investigated? Surely, as President, he should be concerned about such things and about the possible breaking of the law? Might it be because he had purported to appoint Menzi Simelane as NDPP and thus now believes that Simelane will protect him and do his bidding (as Simelane has himself said he would). Does the President now believe that the alleged abuse of power by the NPA is not such a bad thing – as long as it occurs to protect him and his supporters and not to prosecute him?

Third, if the President really believes, as he claimed, that he cannot order an investigation because he was personally involved in the case of alleged abuse of power by the NPA, how come he then appointed Simelane as NDPP? Should he not have recused himself from making a decision about who should serve as NDPP, seeing that Simelane might well still be involved in a decision about his case? Will he apply the same principle that he has now enunciated when he is called upon to decide on granting a pardon to the man who was convicted of bribing him and if he would not, would we be justified in concluding that our President has no principles whatsoever?

Lastly, if the President really believes that his government should not or cannot take any action regarding anything that happened during the time of a predecessor (as he claimed on ETV), how on earth would his government ever be able to correct the mistakes of the previous government? Surely he was elected at Polokwane exactly to correct the mistakes of the Mbeki era? Now he claims his government cannot deal with something that happened under Mbeki, which seems like an extraordinary abdication of responsibility. Does this mean he is fundamentally reneging on the promises made to all the delegates who voted for him at Polokwane?

It seems to me some kind of inquiry into the alleged abuses of power by the NPA is drastically needed so that we can find out – as the SACP rightly said – whether such abuses did occur and (perhaps more importantly) how we can prevent such abuses from happening again. Without an investigation trust in the NPA would not be restored.

The reluctance of the President to launch such an independent investigation will give credence to the views of those who believe that the “abuse of power” claim was something cooked up by Zuma to avoid the fate of his former financial advisor. It will also leave South Africans with the serious worry that Zuma might not in principle be opposed to the abuse of the NPA for political purposes, and that he will engage in the same kind of abuse of the NPA that he accused former President Mbeki of. 

Why the Rule of Law matters

Jan 15th, 2010
by Pierre De Vos.
74 comments

A news report this morning sadly reminded me of the novel, The White Tiger, in which Arivind Adiga provides a cunning and often brutal depiction of India’s class struggles. The fortunes of the main character, Balram Halwai, a cynical, foul-mouthed, but witty narrator, rise after he murders his boss.

In the novel Balram, a chauffeur, recounts his transformation from an honest, hardworking boy growing up in “the Darkness” – those areas of rural India where education and electricity are equally scarce, and where villagers banter about local elections “like eunuchs discussing the Kama Sutra” – to a determined killer. He places the blame for his rage squarely on the avarice of the Indian élite, among whom bribes are commonplace, and who perpetuate a system in which many are sacrificed to the whims of a few.

As in India, most South African politicians claim to care about the poor and to promote “pro-poor” policies while acting in naked and often corrupt self-interest. Surely, only the utterly naive or blind can still believe that the South African elite – of which politicians form a part - care at all for the poor and destitute who they see as useful idiots who will act as rent-a-crowds at election rallies and other glorious celebrations of the struggle (and of other events valorising our new democracy) while remaining no more than voting fodder to legitimise the elite’s relentless accumulation of wealth through corrupt tender practices and and other nefarious activities.

According to the Azanian People’s Organisation (Azapo) some residents of Itireleng near Laudium, west of Pretoria, were evicted recently without the relevant court order required by the Constitution and the law. “This refers to evictions carried out in portion 25 of the farm Mooiplaats in Ward 61, Tshwane,” Azapo’s Gauteng chairperson Samore Herbstein said in a statement.

The Anti-Privatisation Forum was on Thursday meeting with lawyers to draft an urgent application to the North Gauteng High Court, in a bid to force the government to provide housing to those evicted. The application would be filed at a later stage, not on Thursday, as reported earlier. Herbstein claimed the sheriff of the court, the City of Tshwane, police and Tshwane metro police at the scene refused or failed, since Tuesday, to supply a copy of the court order to either Azapo or the attorney hired by Itireleng residents.

This kind of thing is not new. A report drafted by the Centre on Housing Rights and evictions (COHRE) and recently submitted to the Constitutional Court in the KwaZulu/Natal Slums Act case, claims that the City of Durban almost never acquires the requisite court order before evicting poor people who live in informal settlements from their homes, quoting Mahendra Chetty of the Legal Resources Centre in Durban who told them:

The City, as a matter of regular and consistent practice, acts in flagrant breach of the law. I have never come across one incident where the City has acted in accordance with the law in terms of Section 21 of the Constitution and the PIE Act. I do not know of one instance where the City has carried out an eviction with a court order.

In terms of section 26(3) of the Constitution “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”. The section also prohibits arbitrary evictions. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (no. 19 of 1998) (called PIE) gives legal effect to this provision.

The Act requires that a court must consider the rights and needs of certain vulnerable groups of unlawful occupiers, including the elderly, children, women-headed households and the disabled. If the unlawful occupier(s) have been in occupation of the property for longer than six months, the Act requires that the court must consider whether land is available, or can reasonably be made available, by the owner or the local municipality to which the unlawful occupier(s) can be relocated. The Constitutional Court has also said that before a legal eviction can take place the Municipality, Provincial or National Government must engage in a meaningful way with those affected in order to try and find an amicable solution.

This is the main reason, I suspect, why Municipalities evict people without obtaining a court order: they do not want to take any responsibility for having to engage with the poor – who they see as a dirty, selfish bunch of people standing in the way of realising lucrative tenders for them and their friends. And - god forbid - they obviously do not want to have to be forced by a court  actually to have to provide poor people with alternative accommodation when they are forced from their homes.

Poor people often do not have access to lawyers and cannot resist such flagrantly unlawful actions by our new tenderpreneurial class. Where poor people are organised – often under the auspices of the Landless People’s Movement, Abahlali baseMjondolo, the Anti-Privatisation Forum or other social movements – they resist such blatantly unlawful action by politicians and the officials. No wonder the leader of Abahlali is in hiding after members of his movement was attacked and drove from their houses near Durban: these social movements stand in the way of the brutal and selfish accumulation of wealth by the new political elite and their cronies. (After all, as Smuts Ngonyame once said: “I did not struggle to be poor”.)

Some of the social movements have an ambivalent view about the law and about the principle of the Rule of Law. They point out that the law often criminalise poverty and are often used by the elite to victimise the poor. The use of loitering by-laws and trespass laws to lock up “undesirable elements” (also called political opponents) are good examples of this.

But, I am with the late British Marxist historian, E.P. Thompson who said that the Rule of Law is indeed an unqualified human good. As we have seen in Durban and now apparently again in Itireleng, where the law provides protection for the poor and such a law is blatantly ignored, the poor will suffer. 

The law is not always just and it surely does not always serve the interests of the poor, but it does provide an important tool that can be used in the struggle against the heartless and corrupt political elites and their cronies. The law can also be used to help mobilise people and to help them to resist the actions of officials and politicians who have one eye on a Porsche and another on a bottle of Johnny Walker Black Label.

A short lesson on Presidential pardons

Jan 13th, 2010
by Pierre De Vos.
27 comments

Ok class, listen up. A short lesson on Presidential pardons seems to be called for. The lesson is required because seldom has so much nonsense been spoken by so many different people with different political convictions, than recently on the granting of Presidential pardons.

First the President claimed wrongly that Schabir Shaik had not applied for a pardon, then his office claimed that a decision by the President to pardon anyone could not be reviewed. And today the DA’s James Selfe said it was currently not clear whether a Presidential pardon could be taken to court for review.

The DA has proposed a private members Bill that would require the Minister of Justice to make a written recommendation to the President on whether to pardon an applicant and would require the President “to take into account” the recommendation before granting a pardon. The Bill would require the minister to have regard to a list of guidelines before making a recommendation  to the President. These guidelines are currently non-biding guidelines used by the ministry of justice to process pardons and to advise the President and include:

* The age of the offender at the time of the commission of the offence;
* Whether a reasonable period has lapsed since the conviction;
* Circumstances surrounding the commission of the offence;
* The nature and seriousness of the offence;
* Personal circumstances of the offender at time of application;
* The interest of the State and the community; and
* The interests of the victim, if any.

Currently the President is not bound by these guidelines or by the recommendation of the Minister of Justice and a decision to pardon anyone is his alone. Both the Presidency and the DA seems blissfully unaware of the existence of a Constitutional Court judgment in the case of President of the Republic of South Africa v Hugo in which it confirmed that any decision by the President to pardon anyone had to conform to the Constitution and could be reviewed by a court.

If Mr Selfe had taken the time to have a quick look at this case, he would have realized that his draft Bill, if passed, might well run into serious constitutional difficulties. Writing about an almost identical provision in the interim Constitution, Justice Goldstone stated that:

The powers of the President under section 82(1) are expressed in wide and unqualified terms. Unlike most other presidential powers they can be exercised without the concurrence of the Cabinet…. his discretion is unfettered, in the sense that it is not expressly limited by the interim Constitution.

A law that would require the President to consult the Minister of Justice and to take into account a recommendation of the Minister will either be utterly irrelevant and useless (if the President could ignore the guidelines or the recommendations of the Minister altogether) or it would fetter the discretion of the President as it would force him to make a decision based on the guidelines set out in the Bill and the recommendations of the Minister made in terms of the guidelines.

In the latter case – which seems a more likely reading as the Bill would require the President to apply his mind to the recommendations and if he failed to do so a court would be able to set aside his decision – the provisions of the Bill would probably not pass constitutional muster. An ordinary law cannot limit the almost unfettered powers granted to the President by the Constitution. This is an inevitable consequence of the supremacy of the Constitution. Mr Selfe seems sadly unaware of this rather obvious fact.

This does not mean that where the President pardons an individual, that decision cannot be reviewed by a Court. As Goldstone stated in the Hugo case:

In cases where the President pardons or reprieves a single prisoner it is difficult, (save in an unlikely situation where a course of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power… This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

So if the President pardons Schabir Shaik because he fears that Shaik will spill the beans on the mutually symbiotic (and corrupt) relationship between himself and the President or because Shaik had deposited a million bucks into his bank account, the decision could be set aside by a court.

But what would happen in this case where Shaik was convicted of bribing the President? If the President now pardoned Shaik would a court find that this decision was taken in bad faith because it was irrevocably tainted by the previously corrupt relationship between him and Shaik? I might be wrong, but I suspect the Constitutional Court will not declare the granting of such a pardon an act of bad faith as there is no evidence that the previously corrupt  relationship between the President and Shaik had continued after Shaik went to hospital… err I mean prison.

This does not mean it would be wise for the President to pardon Shaik. According to the Hugo case there are at least two situations in which this executive act of the power to pardon may be important. Firstly, it may be used to correct mistaken convictions or reduce excessive sentences and secondly, it may be used to confer mercy upon, inter alia, individuals when the President thinks it will be in the public benefit for that to happen.

No one has presented a plausible argument that Shaik was wrongly convicted. It would manifestly also not be in the public benefit to pardon Shaik as it would send a signal that all are not equal before the law and that if one happens to be a friend of the President one could escape just punishment for corruption merely because of one’s connections to the head of state. This would undermine respect for the rule of law and would surely send a signal that in South Africa who one knows is far more important than what one did or did not do.

Herewith ends the lesson.

Our own Sarah Palin?

Jan 12th, 2010
by Pierre De Vos.
113 comments

During the USA Presidential campaign, vice presidential candidate Sarah “Barracuda” Palin was rightly lambasted after giving a disastrous and laughable interview to Katie Couric. The most quoted section dealt with her lack of foreign policy experience and went like this:

Couric: You’ve cited Alaska’s proximity to Russia as part of your foreign policy experience. What did you mean by that?

Palin: That Alaska has a very narrow maritime border between a foreign country, Russia, and, on our other side, the land boundary that we have with Canada.

Couric: Well, explain to me why that enhances your foreign policy credentials.

Palin: Well, it certainly does, because our, our next-door neighbors are foreign countries, there in the state that I’m executive of.

Couric: Have you ever been involved in any negotiations, for example, with the Russians?

Palin: We have trade missions back and forth, we do. It’s very important when you consider even national security issues with Russia. As [Russian Prime Minister Vladimir] Putin rears his ugly head and comes into the air space of the United States, where do they go? It’s Alaska. It’s just right over the border. It is from Alaska that we send those out to make sure an eye is being kept on this very powerful nation, Russia, because they are right there, they are right next to our state.

Last night while watching the ETV interview with President Jacob Zuma, it suddenly dawned on me: maybe President Jacob Zuma  is our Sarah Palin! Like Palin, President Zuma has charisma, glamour and the common touch. Like Palin our President is much loved by his core supporters who believe that he is being victimized by snooty (or even racist) elites with no respect for traditional values. Like Palin, President Zuma can charm individuals when he meets them. Like Palin, Zuma has an interesting family life. And like Palin he looks completely and embarrassingly out of his depth when confronted by an intelligent and probing interviewer on TV.

Nikiwe Bikitsha did a brilliant job in the interview: she was respectful and courteous (as one should be when interviewing the country’s President to show respect for the office of the President) while asking probing and pointed questions and following up the many evasive and often misleading or plane wrong answers with pertinent follow up salvo’s – always humbly nodding along as the President basically admitted that he did not know much about what was going on in his government.  Our President kept on saying that discussions were continuing on many pivotal issues for South Africa (nationalization, schooling, Julius Malema, the NPA) but that nothing has been decided yet and that he personally had no views on any of these issues.

When asked about whether he would pardon Shaik, he wisely decided to skirt the question because the issue is so politically sensitive and because his advisors must have told him that he should not say anything about it until they have found a way of managing the inevitable fall-out of a possible pardon. Unfortunately, the President skirted the issue in such a ham-handed way that he created more trouble for himself.

“Why should I pardon him when he has not applied?,” he said. “I have nothing in front of me. If there was an application before me, you should ask the question. Why should I respond if I do not have the application before me?” Unfortunately the Presidency issued a statement on 19 October 2009 that contradicts this statement:

The Presidency received an application for pardon from Mr Shabir Shaik last year, on 24 April 2008. The application will be processed like all other applications

The President has therefore indeed received a pardon application and he therefore does have an application in front of him. He might not  have read the application himself, but he does have it on his desk and should know this as his office has confirmed this in an official press statement. Oops!

This is not a life and death issue and will not influence the legality of any pardon when it is eventually granted, but it was another embarrassing gaff on the part of the head of the South African executive which creates the impression that the President is either not aware of what is going on in his own office or that he is perfectly prepared to tell a whopper in order to avoid answering an awkward question.

But maybe there is a kinder explanation for the seeming Palinesque inability of President Zuma to answer any of the questions posed to him and his seeming lack on knowledge and grasp of the issues confronting South Africa. Maybe he avoided answering the questions because he is afraid.

In this regard the ghost of former President Thabo Mbeki seemed to hover over proceedings.

After all, Mbeki lost his job because he had opinions of his own and sometimes expressed them despite the fact that the ANC leadership had not “pronounced” on an issue. Watching President Zuma I got the palpable feeling that the power has shifted decisively from the union buildings to Luthuli House and that instead of constitutional government we now have a party political government.

Our Constitution is silent on the relationship between the executive and the political party in power. While it makes clear that the President is the head of the executive and that the executive governs the country (along with his cabinet members who are all accountable to Parliament), this power is a tenuous one – as Mbeki found out when he was fired.

Because the Constitution also allows the majority party in the National Assembly to “recall” the President by adopting a vote of no confidence against him, the President has no independent power base separate from the party who elected him. Given the fact that members of the National Assembly serve at the pleasure of the party and can be removed from their jobs at any time, the party leadership has a decisive say over members of Parliament, can therefore instruct them to take any action in Parliament and can thus also instruct them to fire the President. Through this threat of removal the party leadership can decide who serves as President and can also ensure that it tells the President how to serve.

President Zuma seems so scared of the party leadership – from Julius Malema down (or is it up?) – that he acts more like an automaton than like the leader of a modern constitutional democracy.

This latter explanation for the President’s embarrassing interview will mitigate against the view that President Zuma is no more than our own Sarah Palin. Let us hope the second explanation is true. Otherwise our President would not only be rather dim-witted (a bit like PW Botha who was definitely not the sharpest tool in the shed), he would also be out of his depth, ignorant and spineless. And if that is the case, we are all in big trouble – unless Kgalema Motlanthe or Gwede Mantashe is really governing the country from behind the scenes, in which case we might not be in as much trouble as it might have seemed from watching the interview.

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