Constitutional Hill

Gwede Mantashe

ANC, know your Constitution (II)

Dec 15th, 2008
by Pierre De Vos.
58 comments

I see dear Comrade Gwede Matashe, Secretary General of the ANC, has been at it again. This weekend he attacked the judges of the Pretoria High Court who rejected the ANC assertion to have an exclusive claim to the name Congress of the People. Dear Gwede, who last wrongly claimed to have been misquoted when he called the Constitutional Court judges counter-revolutionaries (some people would call that lying), is not happy with these judges who had the bloody cheek not to ignore the law to assist the ANC in its political fight with COPE. According to The Star our dear Comrade said:

The two black judges who ruled that COPE could keep the name Congress of the People are “apartheid apologists”…. He said the ANC was paying the price for being “too apologetic… about who we are”…. on Saturday Mantashe said he could forgive Du Plessis – a white judge – for not knowing the “historical facts”, but described the two other judges – who are black – as “apartheid apologists”. He did not refer to their race though.

Our Dear Comrade is of course a bit misgiuded. He thinks (or claims to think) that cases are decided solely on facts as divined by the ANC (who were after all appointed by Jesus Christ to run South Africa), and not on the basis of  applying legal principles. But the ANC lost its case because it could not show that the ANC owned the phrase Congress of the People as a trade mark because it had never registered this trade mark and it was not sufficiently similar to the ANC trade mark to constitute passing off.

Any child with an IQ of more than 70 would have been able to tell our Comrade Leader that the ANC would lose the case. It smacks of an extreme arrogance on the part of the ANC that it thinks judges should ignore the law to assist it in its fight with its brothers in COPE.

That said, Comrade Matashe is obviously not only ignorant of trade mark law but also has never read (or maybe he is not very bright and cannot remember to have read) section 165 of the Constitution which states that “No person or organ of state may interfere with the functioning of the courts”.

Given our history, calling judges apartheid apologists are incendiary and constitutes a direct attack on the independence and legitimacy of the Courts. It would have been fine to attack the judgment by referring to the relevant legal principles and then to argue that judges got it wrong. But to launch a personal attack on judges and to racialise that attack to boot, is extremely dangerous.

Its the kind of language I would have expected from our dear friend Julius Malema – who after all, only scraped through matric and could not even get a pass mark for wood work, so can be excused for saying extremely stupid things. Coming from Mantashe, it is scary. It reflects extremely badly on the ANC who one might now think does not respect the judiciary except when it hands down decisions favourable to it or its Dear Leader – who is having some serious trouble with the law and might well be convicted of corruption if he ever gets his day in court.

Watching Comrade Mantashe on TV I got the scary impression that he really was very cross with the judges and that he really thought the ANC owned South Africa’s history – including the history of the Congress of the Poeple. This means he must also believe the rhetoric that the ANC has a historic mission to transform South African society and that the masses of our people have a historic duty to support them. This is scary, messianic, stuff that I would expect from a gathering of reborn Christians praying for potatoes, but really not from one of the most powerful politicians in South Africa.

What is going to happen when the masses of our people reject the ANC and decides to say: “stuff your historic mission to steal our money, we are going to vote for another party?” Will Dear Comrade Mantashe then attack the people for being unpatriotic? Or maybe he will say that the people are  threatening “national security”. Or maybe the people will become snakes and dogs to be taught a lesson?

Really Comrade, in a constitutional democracy one is supposed to respect the judiciary and not to launch personal attacks on judges. True democrats would never have done such a thing so I must assume you are not a democrat but a Stalinist revolutionary. Us counter-revolutionaries (including most judges and ordinary people) better watch out because who knows when we will be declared enemies of the state and “permanently removed from society”?

Shame on you Comrade, your slip is showing.

ANC, know our Constitution I: articles 16 and 17

Nov 21st, 2008
by Pierre De Vos.
116 comments

In what might have to become a regular slot on this Blog, I have decided to assist the ANC bigwigs in understanding the finer points of our Constitution. God knows, they really need some lessons. Lesson number one is about freedom of expression (article 16) and freedom of assembly (article 17), both rights enshrined in our Bill of Rights.

So listen up, Comrades. Please, I ask nicely. Concentrate. Try to empty your minds (if any) of all the revolutionary rhetoric,  of the thoughts of Mercedes Benzes and fat government contracts, of the burning effigies of Thabo Mbeki, of the words and wisdom of comrade Kortbroek Malema, and try to learn something new for a change. (Julius, I know you never really concentrated during your schooling years and never learnt much, but it is never too late to learn something useful, so listen up as well.)

Today’s lesson is necessitated by the hilarious comments made by comrades Jessie Duarte and Gwede Mantashe. Duarte is quoted in The Cape Argus yesterday as saying that the ANC could not be accused of political intolerance because it was opposition parties like COPE who used “inflammatory language” against the ANC. These people had persistently been “very verbal” against the ANC. Ms Duarte furthermore said (with a straight face, I kid you not) that shouting slogans and burning ANC T-shirts and posters at COPE meetings was “not acceptable”.

Comrade Matashe went a step further, saying that the ANC could not be blamed because its supporters disrupted seven of COPE’s meetings because “when COPE sent text messages to ANC members and supporters inviting them, our members attended the meeting. When they [ANC supporters] don’t like the COPE message, Cope must not blame the ANC”.

Where to start? Well, section 16 of the South African Constitution is perhaps a good place. Section 16 guarantees for everyone (and by everyone, comrades, I mean also non-ANC members and even people who think Jacob Zuma is a right-wing, sexist, crook) the right to freedom of expression, which includes the right to receive and impart information. This right is not absolute and does not extend to incitement of imminent violence or hate speech (comrade Malema, are you still concentrating?). It DOES extend to vigorous criticism of other people and any organisation – even an organisation like the ANC whose Dear Leader thinks God has anointed it to rule South Africa until Jesus comes.

Expression also includes non-verbal kinds of expression, such as holding up of placards or the burning of placards or even T-shirts. That is why, comrade Duarte, Jacob Zuma’s supporters were not arrested or disciplined after they burnt T-shirts, imprinted with the face of then president Thabo Mbeki, outside the courtroom where your Dear Leader made one of his many court appearances before giving his little Foxtrot show outside the court.

So, dear comrade Jessie, when you say that the burning of ANC T-shirts and posters and the shouting of slogans are not acceptable, you are saying that it was unacceptable to criticise the ANC and that the right to freedom of expression enshrined in the Constitution should not apply to those who dare to criticise your God-like organisation. But the ANC is not God – it is just another political party whose members and leaders have their grubby little fingers in the public purse (and sometimes up the skirts of South Africa’s  women).

This might come as a surprise to you, but we all have the right to shout as many slogans as we want and we can denounce the ANC in robust and colourful language – as long as we do not incite violence against our opponents. Of course, shouting nasty slogans might not be politically astute because voters might be put off by nasty and ignorant comments (Julius, you still there?), but as long as comments do not create the climate in which your supporters think it acceptable to break up meetings and attack opponents, the speech can be highly robust.

What you are saying, comrade Jessie, is that criticism of the ANC should be censored because the ANC is really above criticism and its supporters have the right not to hear any criticism of their party. This is deeply undemocratic and, quite frankly, shockingly close to facism. It’s a disappointment that such ignorant and dangerous comments are coming from the spokesperson of a party who has fought for and still claims to believe in democracy.

You are undermining respect for the Bill of Rights and you are really telling your supporters that they need not respect the human rights of others. Every South African has the right to burn ANC posters, ANC membership cards, and ANC T-shirts, to express their disgust with your organisation and its patriarchal, sexist, right-wing leader. South Africans even have a right to shout slogans making fun of the ANC and its leaders and may even ridicule your Dear Leader by, for example, asking whether he needs glasses or is suffering from Alzheimer, because he can never seem to find that bloody Umshini Wam of his. (Look into your pants Comrade Leader, maybe you have hidden it down there somewhere.)

ANC members conversely have the right to burn T-shirts with the face of Thabo Mbeki on it as well. They can also shouts slogans against COPE or the DA, against Helen Silly and Slippery Sam. They have every right to say the leaders of the opposition parties are opportunist in search of positions and government contracts, that they are not to be trusted, that they will sell out the poor. This, comrades, is called freedom of expression in a constitutional democracy. You should try it some time. It’s fun.

(None of us, I must hasten to add – because I fear you might get carried away with this burning thing – have the right to burn other people or their belongings, so don’t even think about encouraging your members to do that.)

Turning now to dear comrade Mantashe: it is with sadness that I have to remind you that article 17 of our Bill of Rights states that everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket. This means – let me spell it out for you dear comrade Mantashe – that no one (not even ANC members who think they are more important than the Constitution) has the right to stop other groups from assembling and holding meetings where they can freely express their views, just because the ANC members do not like what someone is saying.

Our Constitution requires us to be tolerant of other people and their ideas and never to take action to prevent them from gathering and from expressing their ideas – even if these ideas are not popular or not well liked. So for you to say that the ANC cannot be blamed when their supporters disrupt COPE meetings because COPE said things the ANC members did not like, you are admitting that you believe ANC members do not have to respect the constitutional rights of others and have a right to stop others from criticising the ANC. This places the ANC above the Constitution, which is something the Nazi’s also did – its called facism.

Comrade Matashe, then you have the bloody gall to say that COPE is to blame because they said things the ANC members did not like. This is called blaming the victim. It is a bit like blaming a women for her own rape because she was wearing a short skirt. (Come to think of it, your Dear Leader did say during his rape trial that a women wearing a Kanga deserved what she got, so maybe my example is not going to assist too much to help you understand my point.)

So, dear comrades, please. I beg you. I beseech you. Take a deep breath. Open up your constitutions and read sections 16 and 17 again. Make sure you understand that we live in a constitutional democracy in which we can shout slogans and burn T-shirts and criticise each other and where no one has the right to stop us from doing that just because they do not like hearing the truth. Make sure to understand that we do not live in a facist state where the party is more important than people and their rights.

The ANC is not above the law or the Constitution – even though your Dear Leader has said as much. We all fought for our Constitution and for our democracy. Why are you besmirching it like this? Have you no shame? Soos ons in Afrikaans sal se: Sies!

Who’s undermining who?

Nov 20th, 2008
by Pierre De Vos.
31 comments

Gwede Mantashe is a man who knows how to take a gap in order to divert attention from very awkward and unpalatable truths. So it must have come as a godsend when he read an interview with the acting head of the NPA, Mokotedi Mpshe, in last Sunday’s City Press. In the interview, Mpshe is quoted as saying that the NPA had gone through a very rough patch.

The roughness came as a result of criticism, especially towards the NPA for having done this and not having done that. The weight of the roughness came in that this trial (Jacob Zuma’s corruption trial) was a political trial and was difficult for the NPA to handle. Every step that we took, every move that we made had to be analysed or a particular interpretation given to it. But the criticism has – I don’t want to say stopped – but it has scaled down.

Mantashe immediately pounced and said these statements:

clearly confirm once again that the NPA has cast aside all pretence of professionalism or political neutrality – it has come out in the open and has effectively admitted that it is pursuing a political vendetta against President Zuma. This supports the ANC’s longheld view that President Zuma was subjected to political persecution and that the NPA was used as a willing instrument in the violation of President Zuma’s rights.

Now, while Mpshe’s remarks could have been phrased more elegantly, and while it might have been politically unwise to even mention the Zuma case, it is clear from the context of his remarks that he meant that Mr Zuma’s trial had a political dimension and that the NPA was put under severe pressure because the prosecution clearly had political ramifications and was perceived by some as a political trial. The NPA has now also issued a clarifying statement confirming this.

This is not controversial at all – despite what Mantashe seems to suggest. The statement by Mpshe ironically, merely confirms what we all know, namely that the ANC has politicised this trial for its own short-term political advantage.

It is obvious that Mpshe would never have intended to say that the prosecution of Zuma was politically motivated. No one could be that stupid. Not even Mpshe. It is also very clear that Mantashe knows this very well. Why then did he pounce on the statement like this? Maybe because the Nicholson judgment is being appealed and the chances of a successful appeal looks rather good, so Mantashe decided that it was time to  resume the campaign to discredit the NPA and the judiciary to ensure that a judgment against Zuma causes the least political damage.

So, I would not be surprised if Mantashe or others  in the ANC again started attacking the judges sitting in the SCA appeal. After all, if the leader of one’s political party is somebody whose friend is serving a 15 year jail sentence for bribing and corrupting your leader and your leader has done everything possible to prevent himself from facing charges of bribery and corruption, then one would be wise to try and avert attention from that rather unpalatable fact by attacking the very institutions tasked by our constitution to deliver justice.

I am supported in this view by the criticism leveled against Mpshe for saying that he thought that the Nicholson judgment – now being appealed by the very organisation that Mpshe heads!- was wrongly decided. Once again the attack is so over the top that I smell a rat, as Mantashe fulminated:

Even more disturbing Mpshe has shown his utter contempt and disrespect for the rule of law by proclaiming that he would continue to hold that judge Nicholson is “wrong” regardless of the outcome of the NPA’s pending appeal…. Mpshe’s statement is ample evidence that he and the NPA have very little regard for the rule of law and for the rulings of our judiciary. Despite the admonition of Judge Nicholson, Mpse has committed a grave violation of his professional and legal duty as a prosecutor by allowing his judgment on the Zuma matter to be swayed by extraneous political considerations. He has admitted that much in his interview with City Press.

Am I the only one to find this statement so bizarrely over the top that I cannot but wonder whether it was not made with an ulterior motive? Why is it wrong for the NPA boss to say that according to him a judgment that his organisation is currently appealing was wrongly decided? How does this undermine the Rule of Law? How can this statement be deemed to constitute a grave violation of Mpshe’s professional and legal duty? Maybe Mantashe can explain to us what he means, but I am at a loss.

There is nothing wrong with criticising a judgment and saying that the judgment was wrongly decided. If one could never criticise a judgment or say that it was wrongly decided then legal academics would have nothing to talk about or write about. So Mantashe is talking through his nose (or maybe it is through his backside).

Once again, I suspect ulterior motives. Mantashe is now trying to undermine the NPA to try and ensure that the very serious and credible charges against the leader of the ANC is quashed. This he has to do because ordinary people will continue to ask why the ANC is persisting with Jacob Zuma as their Presidential candidate despite the fact that he is possibly facing such serious charges of corruption and bribery. They ANC would want to talk about everything except about these charges, because talking about the charges will remind voters that Zuma is not fit for public office because he has a HUGE ethical question mark hanging over his head.

In the weeks and months to come the ANC will do everything they can – including undermining our constitutional institutions such as the NPA and the judiciary – to try and avert attention from this unpalatable fact. We should not let them get away with this.

Vusi Pikoli, the NPA and the new President

Sep 23rd, 2008
by Pierre De Vos.
31 comments

I was quite startled and shocked by the statement made by ANC Secretary General, Gwede Mantashe on Saturday during the press conference where he announced that the ANC had “recalled” President Thabo Mbeki. It was as if Mr. Mantashe had not read or understood the Nicholson judgment or if he had, had decided not to respect the whole judgment. It is difficult not to conclude from his statements that the ANC NEC had decided that in order to protect Mr. Zuma, it would be necessary to break the law and to commit a crime for which one could be sent to jail for ten years. Was this really what the ANC NEC had in mind or was Mr. Mantashe just misguided?

Mantashe said the decision to fire President Mbeki was taken “as an effort to heal and unite the African National Congress” and that it was a political way to deal with the implications of Pietermaritzburg High Court Judge Chris Nicholson’s ruling that Mbeki may have been involved in a political conspiracy against Zuma. According to the Mail & Guardian he said:

“The biggest worry of the ANC had been the question of a reversal of the closure of the chapter that the Nicholson judgement seemed to have promised.” The National Prosecuting Authority’s decision to appeal the judgement had become a worry, said Mantashe. “If pursued it will continue to be a point of division for the ANC.”

So let me get this straight: because an appeal of the Nicholson judgment would perpetuate division in the ANC, the President had to be fired in order to stop the appeal. What are these people smoking? How exactly will they stop the appeal by the NPA? Surely the only way would be to order the acting or permanent Nation Director of Public Prosecutions (NDPP) to stop the appeal or be fired?

As the Nicholson judgment made very clear – relying on precedent of the Constitutional Court – the Constitution and the NPA Act guarantees the independence of the NPA and of the NDPP, who must make decisions about who to charge and which cases to appeal based on legal principles and the values of the Constitution and not, I repeat not, on the basis of what may or may not be in the best interest of the ANC.

If an appeal of the Nicholson judgment will perpetuate divisions within the ANC, tough luck. The ANC must deal with their divisions internally by, for example, ditching Jacob Zuma as its Presidential candidate. The ANC cannot deal with its divisions by interfering with our constitutional structures and it is thus legally prohibited from interfering with the decision of the NPA to appeal a judgment which many legal experts feel the NPA has a very strong chance of winning on appeal.

In as much as Mr. Mantashe is suggesting that by firing the President, the ANC would be in a position to stop the appeal by the NPA, he is suggesting that the new ANC President or a new Minister of Justice will be able to stop the NPA from doing its job, and will, in effect, be in the position to commit a crime for which he could be sent to jail for 10 years.

Unless of course he was referring to the fact that the new President will soon receive a report from Frene Ginwala in which she might or might not recommend the firing of Vusi Pikoli, who is still legally the NDPP. Although – as the Nicholson judgment made clear – Ms Ginwala will be legally and constitutionally misguided in making a finding that Vusi Pikoli is not a fit and proper person, she is a loyal member of the ANC. This means she might be tempted to ignore the law and cook the books to present the new ANC President with the opportunity to recommend the firing of Vusi Pikoli to the National Assembly who could then rubber stamp this abuse of power.

Once the National Assembly has then fired Mr Pikoli the new President could then appoint a loyal ANC cadre as NDPP – someone who will not fulfill its task without fear favour or prejudice as required by the Constitution – who will miraculously decide not to appeal the Nicholson judgment and not to charge Mr Zuma.

But of course, the Nicholson judgment did rather controversially find that a decisions not to prosecute anyone was reviewable in terms of the Promotion of Administrative Justice (PAJA) Act, so we can take that decision on review to show that it was not a rational decision as it was arbitrary, capricious or based on mala fides (bad faith). If the decision by a new NDPP is so blatantly in conflict with the Constitutional  and NPA Act requirement to act without fear, favour or prejudice, it might also be set aside as unconstitutional or in contraventions of the NPA Act.

So, if Gwede Mantashe and the ANC NEC think they can get this case to go away merely by firing the President, they are deluded. If this is really what Mr Mantashe meant, the new ANC guys are then also far more dangerous for our democracy than I had previously thought. Really, someone should whisper in their ear that (even) the ANC must abide by the Constitution and the law.

If they do not want to accept the law, they can change the law or the Constitution and we can then decide at the next election to throw them out of office. That is how democracy works.

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