There is strong anecdotal evidence (as well as some research from South Africa and the USA), that suggests the race, the gender, the class, the HIV status, the sexual orientation or the education level of both the killer and of the victim sometimes play a role in the severity of the sentence imposed on a killer. A white farmer who kills a black labourer may sometime receive a lighter sentence than a black unemployed youth who kills a blonde young woman. A heterosexual man who kills a lesbian may sometimes receive a lighter sentence than a poor gay man who kills a rich heterosexual banker. And if one kills a tourist who lives in Europe one might well get a far heavier sentence than if one kills a poor black woman living in a rural area.

Given the serious delays in the Nkonyana case, coupled with reports of sloppy investigation and the stalling tactics used by the lawyers representing the killers, it is a bit of a miracle that the four men were indeed convicted and sentenced yesterday. From personal experience I know that not all members of the police are eager to investigate hate crimes against gay men and lesbians and often fail to investigate reports of assault against gay men, lesbians and transgendered persons. And if they do investigate the crimes they often fail to do so with the same diligence than they would investigate, say, the murder of a foreign tourist or a blond girlfriend of a rugby player.

This is not to deny that we have made progress over the past 15 years. At least the case was investigated and brought to court, the accused received a fair trial and the presiding officer was prepared to convict the killers and sentence them to jail – despite the fact that they “only” killed a black lesbian.

For example, some years ago Judge President John Hlophe allowed Christopher Moses “to get away with murder” because his victim was HIV positive. Moses had killed a gay man called, Gerhard Pretorius, and then claimed that, on the night of the murder, he and the deceased had unprotected penetrative sex for the first time. He also claimed that after the sex, Pretorius told him that he had HIV.

Moses’s defence, as stated by his psychiatrist, was that he flew into “an annihilatory rage” beyond his control. The state psychiatrist demonstrated that Moses could not have lost total control because the evidence demonstrated a sustained “complex and goal- oriented” attack. Academic critics argued that Hlophe should have found Moses guilty of murder and that he had misapplied the doctrine of criminal capacity to the case. The murderer’s personal circumstances indicated a reduced sentence would have been appropriate. Instead, Hlophe found that knowingly exposing a person to HIV was sufficient reason to murder them with an excuse of “uncontrollable rage”. He ignored the undisputed objective evidence of premeditation, including fetching two different knives to finish a murder and then setting about creating an alibi.

In any event, it is impossible to say whether the sentences imposed on Zoliswa Nkonyana’s killers would have been significantly lighter if the court had not made a ground-breaking ruling that the killing was motivated by homophobic hate and if this was not taken into account as an aggravating factor in sentencing. Section 28 of the Equality Act states that when the state proves that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence, but the court yesterday extended this to sexual orientation. This section does not mention sexual orientation discrimination or any other criminal attacks animated by hatred for gay men or lesbians

Interesting, while looking at this aspect of the Equality Act, I have been unable to determine whether the provisions of this part of the Equality Act (which deals with the Promotion of Equality by the State and private individuals) have indeed come into operation. My LexisNexis legal database states that the date of commencement of these sections is “still to be proclaimed”. This means that the positive obligations imposed by the Equality Act to promote equality and thus deal with the causes of prejudice and discrimination have never been put into force, which would be strange, given the professed commitment of our government to the achievement of equality.

Section 25 of the Equality Act spells out some of the positive obligations placed on the state by this Act to promote equality.

(1) The State must, where necessary with the assistance of the relevant constitutional institutions (a) develop awareness of fundamental rights in order to promote a climate of understanding, mutual respect and equality; (b) take measures to develop and implement programmes in order to promote equality; and (c) where necessary or appropriate: (i) develop action plans to address any unfair discrimination, hate speech or harassment; (ii) enact further legislation that seeks to promote equality and to establish a legislative framework in line with the objectives of this Act; (iii) develop codes of practice as contemplated in this Act in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation; (iv) provide assistance, advice and training on issues of equality; (v) develop appropriate internal mechanisms to deal with complaints of unfair discrimination, hate speech or harassment; (vi) conduct information campaigns to popularise this Act.

(2) The South African Human Rights Commission and other relevant constitutional institutions may, in addition to any other obligation, in terms of the Constitution or any law, request any other component falling within the definition of the State or any person to supply information on any measures relating to the achievement of equality including, where appropriate, on legislative and executive action and compliance with legislation, codes of practice and programmes.

(4) All Ministers must implement measures within the available resources which are aimed at the achievement of equality in their areas of responsibility by: (a) eliminating any form of unfair discrimination or the perpetuation of inequality in any law, policy or practice for which those Ministers are responsible; and (b) preparing and implementing equality plans in the prescribed manner, the contents of which must include a time frame for implementation of such plans, formulated in consultation with the Minister of Finance.

Once these sections become operational (if ever) the state will have a legal duty to take the lead in educating the public around issues such as racism, sexism, homophobia, religious intolerance (including intolerance against non-believers), and prejudices against disabled persons.

The fact that this has not happened to the degree envisaged by the Constitution (and by these seemingly inoperable provisions of the Equality Act), suggests that not all members of our government (at both national and provincial level) are fully committed to the eradication of all forms of hatred and prejudice and to the promotion of a world in which all kinds of differences between people are respected and even celebrated.

What is needed to turn the tide against prejudice and hatred based on sexual orientation (as well as race, sex, gender and disability) is political leadership from the highest level. Unless the President, the Deputy President and Ministers (as well as Premiers and MEC’s and Mayors) regularly speak out against homophobia (and other forms of prejudice) and against the violence and threats of violence that haunt especially working class, black, gay men, lesbians and other sexual minorities, attitudes will not begin to change.

Just like Helen Zille needs to speak out regularly against racism and the racial utterances of people like Steve Hofmeyer, so Jacob Zuma should speak out against the homophobic statements that are regularly made by other politicians, community leaders and religious leaders.

Until these leaders stop feeling embarrassed about the fact that we have different sexual orientations and until they stop – through their silence – from condoning the hatred and prejudice that too often spill over into violence against gay men and lesbians, attitudes will not begin to change.

A good place to start a campaign that would foster respect for difference would be in our schools. School principals need to be trained in diversity management and should only be promoted if they can demonstrate that they have taken steps to create a school environment in which racial, gender, sexual orientation and religious diversity is not only tolerated but celebrated. An environment should be created in which teachers begin to realise that they have a duty to promote the values contained in our Constitution – including the value of respect for the human dignity of everyone, regardless of his or her sexual orientation.

The truth is that most politicians are uncomfortable about sexuality issues and would rather never have to think about the fact that gay men and lesbians exist and that they are our brothers and sisters, our mothers and fathers, our sons and daughters, our comrades and colleagues. They will not speak out against injustice because they are scared that they will be viewed with suspicion (and might be suspected of being gay or lesbian themselves), so they keep quiet while people like Zoliswa Nkonyana get harassed, assaulted, raped and murdered.

White South Africans have a specific duty to speak out against racism whenever it is expressed or perpetrated by fellow whites. When they keep silent around braaivleis fires, in boardrooms, at dinner parties when somebody tells a racist joke or makes racist statements about black South Africans, they become complicit in the perpetuation of racism. Similarly, if we remain silent in the face of implicit or explicit homophobia amongst our friends we become complicit in homophobia and, ultimately, in the killing of gay men and lesbians.

How anyone can justify his or her silence in the face of racism and sexism and homophobia, I really do not know.

In a speech, delivered earlier this week at the Stellenbosch Business School, Mbeki seems to argue from a philosophical position that tries to marry very valid post-colonial concerns about the dominance of the world by Western-generated ideas promoted by a Western-centric media and Western military and political power, with insights from post-modern philosophy (in a decidedly Foucauldian turn) about the way in which our thoughts and actions are constrained by what we know and have the intellectual tools to think.

Mbeki quotes Donald Rumsfeld, who famously said:

Reports that say something hasn’t happened are always interesting to me because as we know, there are known knows: there are things we know we know. We also know there are known unknowns: that is to say there are some things [we know] we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tends to be the difficult one.

Of course, it is difficult not to read the speech as an intellectual justification for some of Mbeki’s more disastrous interventions during his time as President of South Africa, most notably his dabbling in Aids dissidence, which we all know did not turn out too well for the former President or for all those who subsequently died of Aids related illnesses after choosing not to take live-prolonging anti-retroviral drugs (or did not have money to obtain such drugs in the private health care sector).

Mbeki seems to believe that one can distinguish between three types of knowledge. First, he seems to believe in something he calls “objective reality” or “objective truths” – that which “can logically and independently be established as ‘the truth’”. This kind of knowledge, he argues, “might very well be at variance with what we as Africans know to be the ‘knowledge’ at our disposal”. In other words, what is generally accepted as “true” (HIV causes Aids; Gadaffi was a tyrant; South Africa has a high crime rate), might differ from what Africans experience to be true.

Second, the knowledge we think are at our disposal may very well constitute “false knowledge” which may not be in accordance with the “objective truth” – independently established as the truth. We nevertheless may think it is true because we are told that it is true by those who control the discourse through control of the media, the culture and the political landscape. Thus we may believe that Gaddafi was on the brink of slaughtering many civilians because he was reported to have warned those who resisted his rule that patriotic Libyans would “cleanse” Libya “house by house” from the rats and cockroaches supporting the uprising against him, but this is a “false knowledge” as he would not have followed through on his threats.

As I understand Mbeki’s speech, he believes that there is also a third kind of knowledge. This is knowledge that ordinary people have about their lives or that is being explored by “outside-the-box” thinkers (like Mbeki!), but which have neither been accepted as “objective truths” nor exposed as “false knowledge” yet. (I imagine for Mbeki this would include the idea that many young people die in South Africa in part because they are poor and malnourished, not necessarily because they have the HI virus – which, after all, cannot cause a syndrome.)

Regardless of whether one agrees with this taxonomy of truth and falsehood, it is difficult to find fault with Mbeki’s contention that knowledge is contested and that the terrain is intensely political – especially for us Africans who live in a world profoundly affected by the consequences of colonialism and the traces of colonialist thinking. It is also difficult to disagree with his plea for more openness and a more critical approach to knowledge production. Only a fool will form firm opinions about world affairs by only watching CNN or Sky News.

Mbeki argues that the “false knowledge”, the kind of knowledge that we just know we know but has not been independently established as true, is produced by those who control the media and the means of knowledge production. That is why “it matters who has the capacity and ability to persuade the public about which ‘knowledge’ is ‘true’, and which ‘false’!” It is only when we democratise knowledge and let a thousand ideas bloom that false knowledge will be exposed and other kinds of knowledge will become accepted and, who knows, even accepted as “objective truth”.

This dialogue, says Mbeki, is important as it may also affect our understanding of what is “objectively truth”. Such truths can be overturned. This is because discovery of “the truth”, and therefore the accumulation of “knowledge”, constitutes an unending journey of discovery and what we consider to be truths today may well turn out to be false tomorrow as our understanding of the world around us change and hopefully deepens.

But how do we distinguish between (tentatively established) “objective truths” and “false knowledge”? And how do we distinguish between valuable truth and quackery? If all “objective truths” may well one day be falsified, why are they true now while “false knowledge” is not? Is it just true or false because powerful people said so? It seems that it is at this point that Mbeki’s valid argument about the intensely ideological nature about the production of knowledge deteriorates into mild paranoia and incoherence. Thus Mbeki warns against the destructive potential of the abuse of “knowledge” by those who exercise power, but does so in rather stark terms:

I say this because of the frightening reality contemporary society faces, of the capacity of a small but powerful minority of humanity, to determine what society should ‘know’, which passes as ‘knowledge’.

Is there really a grand conspiracy to fabricate some kinds of knowledge and suppress other kinds of knowledge to further the interests of those who dominate the world? I am not saying this never happens. After all, facts were twisted and intelligence reports manipulated to try and convince the world that Saddam Hussein had weapons of mass destruction and had to be stopped. But surely, more often than not people are the prisoners of their own world views and actually believe the things that they say and do (just like Mbeki is the prisoner of his own world view and believes the things he says and does.) This might produce tainted knowledge, but seldom because of some grand conspiracy.

Of course, the national and international media selectively report on news events and ignore some events and highlight others. That is why my Cape Times yesterday reported in a screaming front page headline that Baboons have invaded the houses of upper middle class residents, but said nothing about similar trials and tribulations experienced by inhabitants of poor areas of Cape Town. And scientists selectively investigate those problems that they find interesting or that that they think would bring them fame and money. Hence, lots of money is poured into medical research about heart disease and Alzheimer’s and very little on curing malaria. But it is not clear how this is part of a deliberate conspiracy to keep the rest of us ignorant and to push a nefarious agenda.

A second problem is that Mbeki does not consider the possibility that he may be part of the very system that produces “false knowledge” and that he might be producing such knowledge himself to further his own interests. After all, he is a powerful person (and used to be President of the most powerful country on the continent and what he said and did had enormous consequences – sometimes good and sometimes bad) for millions of people inside and outside South Africa. Mbeki somehow seems to exempt himself from the rules of the game that he is critiquing. Only other people fall into the trap of embracing “false knowledge” and only other people deploy such “knowledge” to advance their own interests.

While the rest of us are engaged in a never ending struggle to determine what the “objective truth” might be and while we are continuously duped by powerful dark forces into believing things that are just plain wrong, Mbeki alone (in his own mind) is far too clever to do so and therefore has the ability to identify “false knowledge” and “objective truths” properly. And when he does so, his own self-interests never come into play.

Yeah right.

Has Mbeki not, in the past, perpetuated “false knowledge” to advance what he believed to be his own interests and the interests of the government which he led? Thus, a few years ago Mbeki said in a TV interview that it was just a perception that crime was out of control in South Africa: “It’s not as if someone will walk here to the TV studio in Auckland Park and get shot. That doesn’t happen and it won’t happen.” Within days a CNN journalist and his pregnant wife were held up at gunpoint and robbed outside the very same building. He was defending his government and was trying to persuade us of something that was clearly not true.

And when he started questioning the link between HIV and Aids (“a virus cannot cause a syndrome”) and made statements warning against the toxicity of anti-retroviral drugs, he was using his power as President of the country to create a kind of knowledge (sadly accepted as “true” by many South Africans) that turned out to be very false and very deadly. Just ask Parks Mankahlana who reportedly died of an Aids related illness because he had stopped taking the live-prolonging anti-retroviral drugs that his boss had warned against.

The big problem is that Mbeki does not seem to heed the warning of Albert Einstein which he quotes in his speech. Einstein reportedly said: “Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.” He correctly identifies a problem – namely that the construction of knowledge is not free of ideology and the influences of powerful interests. But he then seems to exempt himself from the rules of the game and sets himself up as the final judge of what is “true” and “false” knowledge, something that is impossible to do in terms of Mbeki’s own previous argument about the construction of knowledge.

When Mbeki pontificates about “objective truths” and “false knowledge” he is not free from ideology and self-interest and in this case the self-interest that runs like a golden thread through this speech is his need to justify his deadly dabbling in Aids dissidence and medical quackery. His tragedy is that – brilliant as he might be – he cannot see the contradiction in his own position.

Helen Zille, leader of the Democratic Alliance, and some of her supporters seem particularly prone to this phenomenon. Recent discussions about Zille’s rather startling comments on HIV and AIDS, illustrate this point rather well. Zille was taken to task by myself as well as by Gavin Silber and Nathan Geffen about her strange comments on HIV. What followed is instructive and may say much about the hold that racial solidarity have on many South Africans – even amongst supporters of a political party who professes to be completely blind to race.

As Silber and Geffen wrote, in her original newsletter Zille had specifically cited people who contract HIV through “irresponsible” behaviour before rhetorically questioning why “taxpayers must foot the bill without asking any politically incorrect questions — enough already!”. She then proceeded to confirm that the Western Cape will continue to provide the most comprehensive HIV-AIDS treatment in the country, but that it would also “ask the necessary questions and make appropriate demands for behaviour change”.

Zille, as is her right, responded to some of the criticism levelled against her by Silber and Geffen stating that:

The article focuses almost entirely on rebutting a statement I never made. It invents a position, falsely ascribes it to me — and then seeks to challenge it. That qualifies as a “sick joke”. It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly”. How would one know? I have never suggested that the public health system stop treating any person (let alone category of people) with HIV.

This statement is curious and is difficult to reconcile with what Silber and Geffen had actually written and what Zille herself had written on the topic. It reminded me of Thabo Mbeki who first questioned whether a link existed between HIV and AIDS (“a virus cannot cause a syndrome”) and then, when criticised about this, claimed that he had never questioned this link. Silber and Geffen had actually written nothing that was not based on the published writings of the Premier which are easily accessed via the Internet.

Her newsletter, read with various tweets she fired off the next week, makes it clear that she believes that a person who contracts HIV “irresponsibly” should not ask the state to pay for ARV’s but should pay for this him or herself. This assumes, of course that the person would be able to afford to pay for the ARV’s. One assumes the Premier either believes that everyone can afford these medicine, or that those who cannot afford to pay should die.

This assessment might seem harsh. That is why I went back to Zille’s tweets to see if she might have been misquoted. But, no, there they were, her series of bizarre tweets on HIV, for all to see. (What is it with politicians, the internet and HIV? First there was Thabo Mbeki and now we have Helen Zille.) I quote a few of her tweets:

I made the mistake of posting some of these tweets beneath her denial that she had ever suggested irresponsible people should pay for their own ARV treatment and pointed out that:

Helen Zille says: “It is totally ludicrous to say that I suggested withdrawing treatment from those who contract AIDS “irresponsibly“ But in her tweets she suggested that people who do not use condoms should pay for their own ARV’s. Sounds like she is not being truthful. Some might call it a lie.

Pointing out this lack of candour on the part of their hero was not a smart thing to do, it seems. My post outraged some DA supporters. I provide a sample of the entertaining comments below:

If it weren’t so tragic the comments by de Vos et. al would be amusing and witty…

And as for Pierre de Vos, well what can we expect???

De Vos is without a doubt one of the biggest prat’s on the planet.

Pierre de Vos should stick lecturing in his ivory tower up on the hill. Academics get completely divorced from reality. It’s political correctness and the patronising attitudes of guys like Silber, Geffen and de Vos who think they know what’s best for black people that get me down.

De Vos and his ilk will never have time for Zille, after all she calls a spade a spade. Zille should stay off twitter, after all one cannot build an argument in 140 characters, and one’s message can be misinterpreted. De Vos is the worst kind of academic, he llives in a world that should be perfect, which is fine if you stick to theorising to students, but if you want to get involved in real life, come down from the hill.

Now, as that old right wing judge Erasmus (and old friend of PW Botha) reportedly said many years ago, these criticisms “runs of me like ducks water off my back”. Who cares what obsessed DA supporters infected by a serious dose of racial solidarity think? But it is so depressing that none of those who jumped to Helen Zille’s defence (as they have every right to do) engaged with the point I made. None tried to argue that Zille’s denial was truthful. Instead they just attacked the messenger who happened to have pointed out what would appear to be a huge contradiction between her last statement and her previous tweets.

I fear that many South Africans — and judged by these exchanges, many of them DA supporters — are not very good at democratic debate. One might well have tried to parse Zille’s words (as defenders of Thabo Mbeki often used to do, to their credit) to argue that her denial was indeed truthful. Or one might have invoked context to defend her statements in an effort to reconcile them. Or one might have made a sophisticated argument about how Twitter twists the meaning of words. Such interventions might not have been credible, but they would at least have engaged — no matter how bizarrely — in some form of democratic exchange.

Could it be that some people are so used to having their views validated and taken as the gospel truth, so used to be treated as if their views embody rationality and truth and moral goodness (perhaps because they embody white privilege and unthinkingly and arrogantly live  what Samantha Vice calls whiteliness and white cultural dominance), that they are incapable of engaging rationally with somebody who seriously challenge the assumptions and prejudices they embrace (but that they do not even know that they embrace)?

Is this why only ANC supporters and voters are lambasted for voting along racial lines and for displaying irrational racial solidarity with the ANC and its leaders? I suspect for many of the defenders of Helen Zille it will make no difference if she turned into a tree stump or if she were charged with corruption (they will probably say it was all an ANC plot to discredit her): they will defend her because she is their hero, finish and klaar.

What they do not realise is that such blind loyalty is bad for democracy and is also bad for the leader one is prepared to follow so blindly. How can we have real and meaningful debate if some refuse to address the real issues? And surely, if a leader is so adored and blindly defended, there will be a great danger that he or she will begin to believe the hype and will begin to believe in his or her own infallibility? The truth is that we are all fallible and we all make mistakes. But only those who at least try to be responsible citizens will ever admit to this and would show a willingness to be self-critical and to be critical of the leaders they respect or even adore.

Here is a challenge to DA supporters: why not try and engage with the arguments in this post — robustly and sharply if you so wish — in a serious manner? Why not try and debunk my arguments with more than ad hominem invective? (And if you use ad hominem attacks, why not try making these clever and witty, at least?) In short: why not try and act like responsible citizens in a constitutional democracy?

Just a thought.

It proposes that we engage more seriously and in a nuanced manner with our apartheid past and suggests that this might assist us to deal with the effects of past and ongoing racism and racial discrimination (through the use of race-based redress measures) without getting transfixed by the racial catgories we have to rely on.

Herewith the extract:

In Jacob Dlamini’s book Native Nostalgia he tells many stories about growing up during the apartheid years in Katlehong, a township located 35 km east of Johannesburg and south of Germiston (not far from Alberton where I had the dubious honour of completing my primary school education).

Of course, when I was a primary school child during the height of apartheid, it would have been unthinkable for me to spend time in Katlehong and to get to know Dlamini, his mother or his friends. It would also have been legally impossible for Dlamini to attend the same relatively good school as I did and unthinkable that he would spend time with me in my family home in Alberton as a friend to get to know me, my mother or my friends.

One of the stories Dlamini tells of his childhood in Katlehong is about how the people living in his street listened to the radio broadcast of the world heavyweight boxing title fight in which Gerrie Coetzee (who hailed from nearby Boksburg and was hence known as the Boksburg Bomber) took on a black American, and how they all cheered on homeboy Gerrie, who, after all, grew up not too far from Katlehong.

I too listened to that fight broadcast over the radio, albeit to the Afrikaans and ridiculously biased commentary of Gerhard Viviers – all from the relative privilege of our whites only suburb of Brackenhurst in Alberton. And I too cheered on the Boksburg Bomber, albeit with my shouting father who was already slurring his words after one brandy too many.

We were worlds apart: one slightly bewildered white boy, living in the privileged comfort afforded to white middle class South Africans by the system of apartheid, one black boy subjected to the humiliation wrought by the system from which I was to benefit so handsomely. Yet to tell the full and nuanced story of our respective childhoods, it would be a mistake not to acknowledge this shared experience, because it reminds us that – apart from belonging to the apartheid era race categories imposed on us – our life experiences intersected and overlapped in sometimes surprising and other times shocking ways and that our lives (and who we became) were influenced by many factors apart from our respective races.

As Achille Mbembe has stated: “There is an ‘entanglement’ of colours in South Africa… There is no black history in South Africa that doesn’t involve whiteness. The history is an entanglement of colour lines.” Recognizing this entanglement and recognizing, further, that this entanglement occurred and continues to occur against the backdrop of white economic and social dominance, might assist us to take race (and the devastating effects of past and ongoing racism) seriously while safeguarding against the perpetuation of a society in which race is seen as the only relevant factor in determining who one is and where one fits in, a society in which race is essentialised.

This engagement with our history would be incomplete if it did not note that in terms of the Population Registration Act the state ensured that we had very different life experiences, that we were deemed to be different in every way. As a middle class white boy I was accorded a certain status which allowed me (unthinkingly, I must add) to enjoy the privileges that were associated with being a member of the economic, social and political dominant racial minority.

Later, of course, I discovered that one might also belong to other identity categories; that my sexual orientation and my HIV status could change my standing in society somewhat - from being an absolute insider to a person faced with the challenges associated with these other aspects of my identity, aspects which many in our society still insist belongs on the margins. I also discovered that other aspects of my identity – my whiteness, my economic and social privilege, my academic status – could mitigate against the deeply dehumanizing effects of the prejudices associated with those aspects of my identity (sexual orientation/HIV status) that would invite marginalisation or even rejection.

The point I wish to make is that when we reflect on race-based redress measures at institutions like UCT (an institution created by whites for whites all those years ago) and when the Constitutional Court engages with the question of whether a specific race-based redress measure is constitutionally compliant, the full complexity of our past and the history of each individual who still carries this past with them – no matter how some of us might protest that the past is behind us and that we have suddenly become race-blind and stripped of the social and economic privileges our white skins might still be affording us – must not be lost sight of.

I propose that the starting point for such a nuanced approach should be to recognise that the various identity categories – including race, including sexual orientation, including gender, including HIV status – are the product of a specific history and that they cannot be used to predict how individuals who are said to slot into these categories will behave, what their attitudes will be, and who they are as individuals. When we use these categories for purposes of redress we should do so ironically and in a contingent manner.

In other words, we should never use such categories as if they are “real”, in the sense of really saying something profound or true about any human being, all while acknowledging that the categories feel real to most people and that being assumed to be a member of one of the race categories will often have very real consequences – as  was so brutally illustrated by the fact that Eudy Simelane, a member of South Africa women’s national football team and an LGBT-rights activist, was raped and murdered in her hometown of KwaThema, Springs, Gauteng in 1998 because she was a women and she was a lesbian.

Second, a more nuanced deployment of such categories in legislation, policies and regulations is required. Apart from the category of race (which for the moment we have no choice but to rely on to help address the effects of past and ongoing racism and discrimination) we may want to add other considerations – along with the race of an individual – when we decide whether an individual should be the beneficiary of a specific programme of corrective measures.

The social and economic status of the individual and his or her parents; whether an individual is part of a first, second or third generation who has obtained secondary or tertiary education and the nature of that tertiary education (if any) received by his or her parents or grandparents; whether an individual grew up in a rural area or in the city; whether the individual is monolingual or speaks several South African languages; whether an individual attended a mud school in the Eastern Cape or a posh private school in Rondebosch; whether the individual is required to study in his or her home language or in a second or third language – these factors, along with many others, could all be considered as relevant (along with the race of an individual) when decisions about redress measures are made.

There must also other ways to deal with issues of redress. Who knows? What I do know is that we need to continue having a conversation about what will work best and that when we do so we ignore a critical but serious engagement with the past at our peril. When I talk about a conversation I do not mean a shouting match in which individuals retreat into the laager of their own apartheid era racial identities and shout abuse at others who they perceive to belong to a different apartheid race category, clinging to rigid and simplistic master narratives which the ghost of our apartheid past have fixed so firmly in many of our imaginations (even if many deny this).

In having this conversation it would be helpful if we could agree that it is important to take race and the need for racially-based redress seriously while also acknowledging that in doing so there is a danger that the use of apartheid era race categories will imprison us all in an apartheid of the mind.

This we can only do if we have a real and open discussion about what race did to all of us in the past (and continues to do to us today) and engage with the issue of how we can address the effects of race in the future; if we do not take part in the discussion as perpetual victims (of racism or of so called reverse-racism), but as equal, respectful human beings with agency and a unique take on life who believe and act like people who have the pride in themselves and the power to chart a new destiny that is fair and just for all — not just for those who belong to the same racial group we happen to believe that we belong to.

Today is World Aids Day. It’s a time to remember all the people in South Africa and elsewhere in the world who have died needlessly because of the greed of pharmaceutical companies, the ignorance, hatred, prejudice and fear of people and the wilful stubbornness and cold-hearted arrogance of politicians like former President Thabo Mbeki. It is a time to reflect on whether one is in a position to be tested and to go for voluntary counselling and testing if one is indeed in a position to do so.

Earlier this year as I re-read the Constitutional Court judgment in Hoffmann v South African Airways which was handed down in 2000 by the present Chief Justice Sandile Ngcobo, it struck me that at the time when then President Thabo Mbeki was questioning the link between HIV and AIDS and the efficacy of anti-retroviral (ARV) drugs to treat HIV, our Constitutional Court definitively came out on the right side of the argument. While the President was tilting at windmills, the Constitutional Court made a definitive finding that should have put a stop to the President’s questioning of the science of HIV and AIDS. Unfortunately it never did.

Legally at least, President Mbeki’s wild goose chase was irrelevant. Unfortunately for hundreds of thousands of South Africans who died of AIDS related illnesses during this time, it was not. Let me quote three passages from the judgment without further comment. It speaks for itself.

First extract:

[T]his case tells us the following about HIV/AIDS: it is a progressive disease of the immune system that is caused by the Human Immunodeficiency Virus, or HIV. HIV is a human retrovirus that affects essential white blood cells, called CD4+ lymphocytes. These cells play an essential part in the proper functioning of the human immune system. When all the interdependent parts of the immune system are functioning properly, a human being is able to fight off a variety of viruses and bacteria that are commonly present in our daily environment. When the body’s immune system becomes suppressed or debilitated, these organisms are able to flourish unimpeded. Professor Schoub identifies four stages in the progression of untreated HIV infection:

(a) Acute stage — this stage begins shortly after infection. During this stage the infected individual experiences flu-like symptoms which last for some weeks. The immune system during this stage is depressed. However, this is a temporary phase and the immune system will revert to normal activity once the individual recovers clinically. This is called the window period. During this window period, individuals may test negative for HIV when in fact they are already infected with the virus.
(b) Asymptomatic immunocompetent stage — this follows the acute stage. During this stage the individual functions completely normally, and is unaware of any symptoms of the infection. The infection is clinically silent and the immune system is not yet materially affected.
(c) Asymptomatic immunosuppressed stage — this occurs when there is a progressive increase in the amount of virus in the body which has materially eroded the immune system. At this stage the body is unable to replenish the vast number of CD4+ lymphocytes that are destroyed by the actively replicating virus. The beginning of this stage is marked by a drop in the CD4+ count to below 500 cells per microlitre of blood. However, it is only when the count drops below 350 cells per microlitre of blood that an individual cannot be effectively vaccinated against yellow fever. Below 300 cells per microlitre of blood, the individual becomes vulnerable to secondary infections and needs to take prophylactic antibiotics and anti-microbials. Although the individual’s immune system is now significantly depressed, the individual may still be completely free of symptoms and be unaware of the progress of the disease in the body.
(d) AIDS (Acquired Immune Deficiency Syndrome) stage — this is the end stage of the gradual deterioration of the immune system. The immune system is so profoundly depleted that the individual becomes prone to opportunistic infections that may prove fatal because of the inability of the body to fight them.

Second extract:

The natural progression of HIV has been dramatically altered in consequence of recent advances in the available medication. There are now combinations of drugs that are capable of completely suppressing the replication of the virus within an HIV+ individual. This combination of drugs has been described as Highly Active Antiretroviral Therapy…. They are available in South Africa and are increasingly accessible. With successful [ARV] treatment, the individual’s immune system recovers, together with a very marked improvement in the CD4+ lymphocyte count. A significant improvement in survival rates and life expectancy results.

Third extract:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era — it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

People who are living with HIV must be treated with compassion and understanding. We must show ubuntu towards them. They must not be condemned to “economic death” by the denial of equal opportunity in employment. This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high. In regard to the ability of people with HIV to perform employment duties, and in particular the work of a cabin attendant, the minute records that: With the advent of [ARV] treatment, individuals are capable of living normal lives and they can perform any employment tasks for which they are otherwise qualified.

For those of us living with HIV or are otherwise affected by HIV, these words can only make us proud of our highest court. No, let me rephrase that: I would say that every single South African — even those who believe they are HIV negative or those that believe they do not know anyone who is HIV positive — should be proud of our court for these sane findings based on scientific evidence and the ringing words that endorses respect for all people, regardless of their HIV status.

They warned that he would be required to serve two masters at the same time. Although both masters were members of an alliance, these masters did not always take the same position on a particular issue. Nzimande would then be forced either to defy the cabinet in breach of the Constitution when, as its leader, he would be required to put forward the official SACP position, or he would be forced to abide by cabinet decisions and thus would become incapable of diligently performing his function as leader of the SACP.

As I pointed out earlier this week, South Africa has adopted a system of political party government in which strict party discipline is enforced in the legislature and individual and collective cabinet responsibility for the executive is mandated by sections 92 and 96 of the Constitution. 

This means that ordinary MPs may debate an issue vigorously within the ANC until the caucus has made a decision on it, after which they were obliged to toe the party line or face the consequences (the most severe of which would be to be redeployed out of a job, as happened with Andrew Feinstein when he refused to follow instructions from the ANC - and especially Essop Pahad a.k.a Essops Fables – to stop his vigorous pursuit of arms deal corruption as a member of SCOPA). 

If ANC MP’s in Parliament also happened to be SACP leaders or COSATU leaders they would find themselves in a difficult position as they would be required to vote in favour of measures which their parties did not support. Other MP’s would also face such difficulties – as was the case with the adoption of the Termination of Pregnancy Act and the Civil Union Act.

Similarly, a cabinet minister could forcefully argue his or her position inside and outside cabinet until the cabinet had taken a position on that issue, after which the cabinet minister had to abide by that decision or had to resign. What the cabinet minister cannot do is stay in the cabinet but criticise a decision of that cabinet in his or her capacity as leader of Cosatu or the SACP because this would undermine cohesive government and collective cabinet responsibility.

It also undertmines the authority of the President, who is the  leader of the cabinet. In some jurisdictions the Prime Minister or the President fires Ministers who show too much dissent – often when the President or the Prime Minister is insecure and paranoid about his or her future or has a vindictive streak beyond that which politicians are known for.

This suggests that those in the SACP who expresssed disquiet with Nzimande’s duel role might have had a point: being the leader of the SACP or COSATU is probably incompatible with membership of the Cabinet or the National Assembly. Blade Nzimande sees things differently, of course. If all cabinet Ministers followed his example the cabinet would become even more dysfunctional and cabinet government would run the risk of breaking down completely, in which case service delivery would suffer a further blow. Policy would be made and amended on the trot (something former cabinet Minister Kader Asmal warned against earlier this year) and the system of individual and collective accountability of cabinet ministers provided for in the Constitution would break down.

Are there ways to deal with this and to save Minister Nzimande from having to choose which master he is serving? Could he hold on to his R1.1 million BMW and the perks associated with being a Minister (including occasional two week stays at the Mount Nelson Hotel) while also holding on to his job as general secretary of the SACP?

Murray and Stacey, in their Chapter in Constitutional Law of South Africa, suggest a few options. One would be for a Minister to use the “unattributable leak”. A Minister could leak his opposition to a specific cabinet decision to the media on condition that he or she not be named. Cabinet Ministers in the United Kingdom are masters of this ploy. It allows one to have one’s views known to those sections of the public whose support one wishes to retain (always a good thing when one has to stand for a leadership position), without officially breaking the rules of collective cabinet responsibility. Given the fact that such unattributable leaks are one of the reasons advanced by Nzimande and others for the establishment of a Media Appeals Tribunal, Minister Nzimande might not find this option appealing.

Another option would be to release carefully crafted statements that hint at dissent without actually defying the President and cabinet colleagues. Those who support Nzimande’s statement on behalf of the SACP about the strike argue that this is exactly what he did. I am far from convinced that they are correct, but judge for yourself. According to its spokesperson, Themba Maseko, cabinet had agreed as follows on the strike:

Cabinet is disappointed with the public sector unions’ rejection of the state’s offer of a 7% annual increase and the R700.00 a month housing allowance for public servants. The offer is already way above the inflation rate of 4.5 %. The state’s final offer represented a move from the original offer of 5.2 % and a R500.00 a month housing allowance. This is a clear demonstration that Government was negotiating in good faith in an attempt to meet the demands of our employees.  While Government fully understands and appreciates the plight of all the public servants regarding low wages, it has to be mindful of its responsibilities to all South Africans as the final offer already places a huge burden on the fiscus. We had to make a choice between increasing the salary bill to unaffordable levels by meeting the union demands and cutting other urgently needed services.It’s a choice between improving the wages of state employees and continuing to address the service delivery needs of poor communities and the unemployed.

Nzimande’s statement on behalf of the SACP reads partly as follows:

The CC calls on government and the unions to ensure that there is a very speedy resolution to the strike. It is about to enter its third week now and the longer it is prolonged the more everyone suffers and the danger of unbridgeable positions becoming entrenched increases. The SACP once more reiterates its conviction that the demands of the public service workers are legitimate and we support them in their struggle for just remuneration. In particular, we note that the wage gap in the public sector between the highest paid echelons and the lowest is 91 to 1. Although the gap in the private sector is even wider, we cannot deny that the public sector wage gap is shameful, and every effort must be made to progressively close this unacceptable gap. In this regard, the CC calls on government to set an example by ensuring that there is a collective moratorium on salary increases in the upper echelons of government.

I guess if one parses words one could argue that the two underlined sections are not in direct opposition to one another, but it would take some nifty verbal gymnastics and would stretch the meaning of words a bit further than any ordinary person would be able to do – at least while keeping a straight face. Can one at the same time be disappointed with the actions of strikers who rejected an offer of government and decided to strike and support their strike? I guess its a matter of interpretation (as is almost everything else in life) but my head feels like bursting just trying to reconcile those two statements.

And what about the poor ordinary MP’s who are far more vulnerable as they are not in leadership positions and have not been directly elected so can lose their seats in parliament at the whim of the leadership? What must they do when their party takes a position with which they vehemently disagrees, but which they cannot defy by voting against it for fear of losing their seats in Parliament?

One option would be to take a leaf out of the book of Schabir Shaik and to develop a serious illness on the day that a vote is to take place. But this will not signal to one’s constituents that one really did not like what the party did. Another would be to leak news of one’s opposition to a specific decision to the media on condition that one’s name is not mentioned and then to vote for the bloody measure (or against it – if that is what one’s party had decreed) in any case. Political party leaders and whips hate this kind of thing, but it does happen all the time. Andrew Feinstein did it in protest against President Thabo Mbeki’s speech to the caucus in which he argued that HIV and Aids was part of a CIA plot. It builds some flexibility into the system while retaining a semblance of discipline.

Where a political party leader is at the top of his or her game and wields power confidently or, in some cases, ruthlessly, there is less of this kind of ill discipline. With the exception of Pregs Govender and Andrew Feinstein, for example, few ANC MP’s ever dared to go against the party line once Thabo Mbeki had spoken and had indicated what the official line was going to be (sometime after vigorous “debate”). Of course, because of this in the end the seething resentment against King Thabo built up to such a degree that he was thrown out of office at Polokwane.

The fact that Ministers are leaking stuff left right and centre, that Blade Nzimande issues statements that seem to contradict the official cabinet position and that ordinary ANC MP’s are gossiping and leaking to the media like over-excited school boys and girls, suggests that President Jacob Zuma does not nearly have the same stranglehold on his Parliamentary party as Thabo Mbeki did.

But ironically, it might save Zuma’s bacon – at least for now – because all the factions in the party feel that they have a chance to have their side of the story heard and even to have their view prevail because the King is so weak and not nearly as ruthless – at least not on the surface – as that other guy whats-is-name who used to strike terror into the hearts of MPs and cabinet ministers to such a degree that they were all too scared even to admit to journalists that they believed that HIV was a virus that caused Aids.

Even if one passionately believes that one’s own version of the public good (or the version of the public good espoused by the political party of ones choice) is the correct one, one has to embrace the idea that other, competing and even radically different visions, are legitimate – even if one believes that these alternative versions are dangerously misguided and immoral or that pursuing such alternative versions would be detrimental to the wellbeing of the majority of the citizens (or the majority of citizens who voted for the party of ones choice).

One must also accept that the political party of one’s choice has to compete for votes in free and fair elections and that the party who wins the majority of votes at an election (even if it is the party that one belongs to, supports steadfastly and may have been one of the parties involved in the struggle for a just South Africa), has no divine right to rule and holds power only temporarily and at the mercy of voters.

One must accept (even if one is its leader and the President of the country) that the current ruling party’s continued rule is subject to the continued support of the majority of voters who at any future free and fair election can reject the vision put forward by that party and vote into government another party or parties to rule the country.

What flows from this is the need to accept that there is a fundamental difference between the ruling party and its interests, the government and its interests, and the state. If the ruling party is voted out of office the state will continue functioning; ID books and passports will continue to be issued, social grants will continue to be paid, judges will continue to interpret and enforce the law and the constitution – even if the party of one’s choice is rejected at the ballot box and a new party or parties (temporarily) take over the government.

In a constitutional democracy the health and wellbeing of the ruling party is not to be equated with the wellbeing of the citizens. Taxpayers can therefore not be required to pay for party political activities – except to the extent that all political parties in the legislature are funded in a fair and equitable manner.  The party in government cannot utilize government resources to fund its activities. If it did, it would be abusing its powers to gain an unfair electoral advantage and this will make free and fair elections impossible.

Where the party in government abuses public resources to advance its own party political interests it therefore acts in an anti-democratic manner and undermines the basic values underlying the South African Constitution. When the governing party abuses state resources to keep itself in power, it signals the death of democracy.

Where one political party dominates the political landscape (in, what is called a dominant party democracy) and continues in office for a considerable period the distinction between the majority party, the government and the state tends to get blurred. Members of such a governing party have a tendency to begin to believe that the party, the government it leads and the state are the same thing and that the state and the government are there to further the interests of the party (because the party is the embodiment of the aspirations of the people).

Because it is wrongly assumed that such a governing party’s vision of the public good is the only legitimate vision and the only one that could possibly be morally valid (because the majority party has won successive elections with large majorities of the popular vote), members of such a majority party can begin to believe that the interests of the party, the interests of the state and the interests of the citizens of the country are all one and the same thing.

Only the majority party is then seen as being capable of advancing the interests of the majority of citizens and a belief may take hold that the majority party has a right to continue ruling the country in perpetuity. The party and the state becomes difficult to distinguish from one another because it is assumed that the party will continue in government for a very long time (or even for ever – remember Iain Smiths comment that his party would rule “Rhodesia” for a 1000 years) and that it therefore “owns” the state.

This view is deeply problematic because it negates the essence of democracy, namely that a political party does not own the state but only temporarily holds the reigns of state power, serving the people as the governing party until the next election – when it can be returned to government or can be rejected by voters while the state continues to function in its normal fashion.

It is against this background that reported remarks by President Jacob Zuma at the ANC National Executive Committee (NEC) meeting of the ruling ANC last month must be viewed as rather disturbing. President Zuma is reported to have proposed that ANC NEC members should be allowed time off to advance the interests of the ANC:

If it is necessary, for example, to release NEC members in government to do organizational [thus ANC] work for two weeks every quarter, then we should agree to do so. People may be concerned that government work will suffer as a result. But it will suffer far more if there is no viable ANC to drive the process of social change.

These reported remarks illustrate, rather alarmingly, the tendency I have highlighted above. Because the ANC is (righty or wrongly) seen as the only body who can legitimately drive valid social change, the roles of members of the ANC government are equated with the roles of these members as leaders of the majority political party.

If President Zuma was reported correctly, he is clearly not a democrat in the sense that the term is usually used. The remarks suggest that Zuma fails to understand that in a constitutional democracy members of the government are elected by the voters and their salaries are paid by tax payers to do government business and that party business and government business is not the same thing.

Party business relates to activities aimed at mobilizing and promoting the political party to allow it to remain in power. Government business relates to the running of the country and implementing the policies of the governing party. Neither the party or the government “owns” the state.

The suggestion that ANC members in government must be allowed to do party political work for 8 weeks a year, assuming while they are being paid a salary by taxpayers, because the ANC is the only party that can drive social change, is therefore quite outrageous and anti-democratic. It conflates the party and the state and also assumes that the interests of the party and that of the government are the same.

President Zuma’s proposal is clearly not in line with what is allowed by the Constitution. Several provisions in the Constitution recognizes the fact that we live in a multi-party democracy in which free and fair elections forms the basis of the legitimacy of the government of the day. If President Zuma’s reported proposal is adopted it would completely subvert the multi-party nature of our democracy and would bring an end to any semblance of democracy in South Africa.

If President Zuma was reported correctly, he is not a democrat as envisaged by our constitution. In any case, his proposal would be unconstitutional. Someone should whisper in his ear and tell him this. Maybe it is time for the democrats in the ANC (of which there are many, along with the Stalinists and the kleptocratic nationalists), to stand up to our President (as they eventually did with Thabo Mbeki after he had embarked on a catastrophic and murderous questioning of the link between HIV and Aids and refused to roll out life saving ARVs to those who could not pay for it).

The ANC does not own the government or the state. Suggesting, as our President reportedly did, that it is, is just as troubling as the moves by the ruling party to muzzle the press. If he was reported correctly, every true democrat in South Africa would rightfully be outraged and a bit scared by his comments. Maybe its time for someone like Jeremy Cronin to show the same kind of backbone he showed in speaking out against the dictatorial tendencies of Thabo Mbeki.

Writing to then leader of the opposition, Tony Leon, Mbeki said the following in 2000:

In your letter to me of June 19, you make the extraordinary statement that AZT boosts the immune system. Not even the manufacturer of this drug makes this profoundly unscientific claim. The reality is the precise opposite of what you say, this being that AZT is immuno-suppressive. Contrary to the claims you make in promotion of AZT, all responsible medical authorities repeatedly issue serious warnings about the toxicity of antiretroviral drugs, which include AZT.

On 28 October 1999, Mbeki told the members of the National Council of Provinces:

Two matters in this regard [the demand to make AZT available in the public health service] have been brought to our attention. One of these is that there are legal cases pending in this country, the United Kingdom and the United States against AZT on the basis that this drug is harmful to health. [This claim was untrue.] There also exists a large volume of scientific literature alleging that, among other things, the toxicity of this drug is such that it is in fact a danger to health. These are matters of great concern to the Government as it would be irresponsible for us not to heed the dire warnings which medical researchers have been making. I have therefore asked the Minister of Health, as a matter of urgency, to go into all these matters so that, to the extent that is possible, we ourselves, including our country’s medical authorities, are certain of where the truth lies.

And of course the later Minister of Health also had rather dangerous and bizarre views on the matter. Dr Tshabalala-Msimang, launching an anti-TB campaign on 15 March 2003 said the following:

In my heart I believe it is not right to hand them [AZT and other ARV drugs] out to my people.

The late Peter Mokaba, who died tragically under the influence of this denialism told The Star the following on 4 April 2002:

We have seen colonization, we have seen imperialism, we have seen apartheid … and all of them used against us as a people. [Africans have] won their liberation and now they are fighting another war and they are being psychologically terrorised once more because people want to sell [ARV drugs] and make profits. And there is no benefit in those products. The only thing that can really happen is that once you touch the antiretrovirals you can go one way.

This is the story behind the advert.

° What Would Mbeki say.

Mgwenya’s statement is shockingly anti-democratic and ill-informed. The fact is that President Zuma is not a private citizen like everyone else. He is the leader of the largest party in South Africa and President of the country. As the Constitutional Court has made clear, the right to privacy – like all other rights – are not absolute and not everyone can claim an absolute right to keep their private lives secret, regardless of who they are.

The more public a figure, the less privacy he or she enjoys. If private actions could have public consequences, a public figure enjoys very little privacy regarding those particular actions as this would impoverish our democracy as it would deprive us of information needed to form opinions about our political leaders.

The President is not an ordinary citizen. We pay his salary and we have a constitutional right to know whether his behavior is such that we would want to vote for the party he leads. To argue that this is a private matter is to argue that citizens do not have the right to know what their leaders get up to and what kind of characters they have. It is also to argue that our right to vote for the party of our choice in an informed manner should be trumped by the right to privacy of a man who has chosen to take up the position of president of the country – thereby forfeiting some of his privacy rights.

The view expressed by the ANC is reactionary and disrespectful of voters and if adhered to will potentially hold severe negative consequences for the quality of our democracy. Because Zuma is a public figure and a main player in our politics, he has forfeited some of his privacy. If the ANC does not believe this, they clearly have contempt for the dignity of voters and for the right of voters to make informed choices. The view espoused by Mgwenya thus poses a danger to our democracy and must be rejected with contempt.

The same can of course not be said for the baby President Zuma fathered. That baby did not choose to be fathered by the President and has a right to privacy. It would also be in the best interest of the child to keep his or her identity secret. The Sunday Times was therefore wrong to publish the full names of the baby.

The second – and distinct – question is whether the news that Zuma has fathered another child out of wedlock should be relevant for us when we make choices about whom to vote for. I am not a particularly moralistic person, so personally I would ordinarily say that the sexual adventures of a politician should have little or no bearing on his or her political standing. Normally the fact that a politician had an affair or fathered a child out of wedlock would say very little about his or her ability to govern the country and should not really be of great interest to us voters.

But this changes where the private actions of the politician directly contradict his or her public utterances and the policy positions of the party he or she belongs to or – in the case of President Zuma – leads. When that happens, a politician shows that he or she is a hypocrite and that we cannot trust a word he or she says and, hence, that he or she lacks the necessary character to be a political leader who should enjoy our trust. For example, if the leader of a Reborn Christian party who rails against homosexuality has a gay affair, we should condemn that politician – not because of the gay affair but because of the sheer hypocrisy of the man. Why would we ever believe anything that politician says ever again?

This is why the news of President Zuma’s love child is a big deal.

Our President has made many statements which directly contradicts his private behavior. Talking to religious leaders before the election he said that: “we need to teach our people to fear God… There are many other examples, which illustrate that the historical association of the ANC and the Church cannot be doubted. The ANC practically derived its moral vision from the church amongst other sources”.

As far as I know, very few people believe in a God that condones promiscuity and extra marital affairs, and the moral vision of the church is surely not one that condones extra-marital affairs and fathering children out of wedlock. This creates the impression that our President is a hypocrite who says one thing to church leaders (and pretends that the ANC  he leads has a vision in line with church teachings) when he personally does not adhere to that vision. This is usually called lying. I wonder what Ray McCauley (who is just about the divorce his second wife!) thinks about this behavior?

Last year President Zuma also made a brilliant speech on World Aids Day and many of us praised him and commended the ANC for this fresh approach to the disease. The ANC Youth League even launched a “one girlfriend, one boyfriend” campaign as part of this fresh approach to HIV prevention. Zuma himself said:

Our message is simple. We have to stop the spread of HIV. We must reduce the rate of new infections. Prevention is our most powerful weapon against the epidemic… All South Africans should take steps to ensure that they do not become infected, that they do not infect others and that they know their status. Each individual must take responsibility for protection against HIV. To the youth, the future belongs to you.

It does not mean that we should be irresponsible in our sexual practices. It does not mean that people do not have to practice safer sex. It does not mean that people should not use condoms consistently and correctly during every sexual encounter. We can eliminate the scourge of HIV if all South Africans take responsibility for their actions.

After the recent revelations it is far from clear whether President Zuma actually meant what he said. Perhaps President Zuma and the mother of his child both had an HIV test before they started having unprotected sex, but if that is the case we have a right to know. In the absence of such knowledge we will surely be forgiven for believing that the President is an unprincipled hypocrite who says one thing in public and commits the ANC to one policy and then does exactly the opposite in private.

At the very least President Zuma must tell us whether he was irresponsible in his sexual practices and whether he has taken steps to protect himself and his sexual partners from HIV infection. He should tell us whether he has had any other extra-marital sexual relations and whether he has fathered any other children out of wedlock. If he does not, the voters will be well within their rights to judge the President harshly and to conclude that he is a man who cannot be trusted, a man who would say anything to get elected – even if what he says is exactly the opposite of what he does.

This goes to the heart of the character of our President. Either he can be trusted and we can believe what he says, or he cannot be trusted and we should assume that he is a pathological liar. When his private actions suggest that he cannot be trusted, voters have a right to know about those actions. Moreover, they also have a right not to vote for him at the next election – not because he is less “moral” than Mother Theresa, but rather because he is not honest.

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.