After all, they had a right to express their views, no matter how repugnant, bigoted, bizarre and superstitious I might have found these views — just as I had the right to demonstrate my love and affection to the person dearest to me. That is one of the advantages of living in a constitutional democracy. As long as one does not break the constitutionally valid laws of the country, one is free to do and say what one wants.

Section 17 of the South African Constitution states that: “Everyone has the right peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” This right forms part of the bouquet of rights aimed at securing a democratic space in which individuals can express their views, can demonstrate in support of those views, can listen to others and consider changing their minds. If these rights are not vigilantly protected, democracy itself is diminished.

If one is intolerant of the views of others to the extent that one would take action to prevent others from expressing these views or trying to spread their views by holding marches or handing over petitions, one is intolerant of democracy itself. If one disagrees with a view expressed by others and promoted via a peaceful march, then one should counter that view with better arguments and holding another, larger, peaceful march. Not by trying to deny others their democratic rights.

That is why the actions by the Cosatu leadership as well as Cosatu members today must be condemned in the strongest terms. First Patrick Craven of Cosatu (and the ANC) called on the DA not to exercise their democratic right to demonstrate. Then the National Union of Metalworkers of SA (Numsa) and its affiliates vowed to “swamp the streets outside Cosatu House”.

Numsa spokesman Castro Ngobese complained that: “This mass gathering is informed by the provocative, deceitful and cheap political blackmail from the chief representatives of white monopoly capital and apartheid apologists the DA.” Ngobese said the DA was trying to coerce the ANC-led government, particularly its ally Cosatu, to agree to the neo-liberal proposal of a youth wage subsidy.

(Ironically the march was aimed at promoting a youth wage subsidy, a policy supported by the ANC government.)

Then this morning Cosatu members intimidated DA marchers and threw stones at them (with some reports of the DA marchers retaliating) and at journalists, injuring several people.  Patrick Craven incredibly justified this action by stating: “We showed [the DA] we would not be intimidated.” Mouthing platitudes about supporting the right to peaceful protest (as Vavi did in a tweet) after you have called on your supporters to stop a DA march from getting close to your headquarters, merely illustrates than one is a hypocrite, not that  one is a man of principle.

There is no place in our democracy for such anti-democratic intolerance. The argument that the marchers “provoked” Cosatu members who were by implication justified in using violence to stop the march, does not hold water. No one has a right to bring a violent end to a march because they believe the message of the marchers is wrong or that the marchers have no right to demonstrate close to where they work. If they had, the rights protected in section 17 of the Constitution would be illusory. Leaders have a special duty to ensure that their followers do not deny the rights of fellow citizens and they must not instigate unlawful and undemocratic action by their followers.

It is deeply disappointing that Cosatu leaders like Zwelenzima Vavi, somebody I have always held in high regard, would stoop to such a low.

Some commentators have argued that the DA was irresponsible to march on the Cosatu headquarters and that it was strategically wrongheaded. But this is a red-herring. One might well believe that it was unwise for the DA to march on Cosatu headquarters (or that they will not win any votes in this way), but there is no law in South Africa prohibiting one from being unwise. In fact, the Constitution requires the Police to protect even those who we believe are acting unwisely from the intolerant and undemocratic attacks by fellow citizens.

The Police also has a duty to protect marchers from intimidation and attack. There might be cases where intolerant citizens spontaneously begin to threaten marchers and the Police must then step in to protect the marchers. If they cannot do so, they may try to defuse the situation by diverting the march. But where leaders in effect call on supporters to deny other citizens their democratic rights, the Police has a positive duty to deploy the necessary resources to protect such marchers. The Police did not (or could not) stop Cosatu members from massing and attacking the DA marchers, suggesting that the Police is partly to blame for the ensuing bloodshed.

Lastly, I am not an economist so I do not have a strong view about whether the youth wage subsidy is a good thing or a bad thing. But if Cosatu wants to convince people like myself that it is a bad idea, they will have to present arguments to that effect. They sure as hell will not convince me of their view by stopping others from expressing the contrary view.

In fact, responding to a peaceful protest march with violence would suggest that Cosatu does not have a sound and convincing argument that it thinks will convince the millions of unemployed youth that a policy aimed at creating youth employment is a bad thing. Maybe there are such arguments, but in the absence of a cogent and sound response from Cosatu, many people will be left with the perception that Cosatu is protecting the interests of its members and do not care much about the unemployed who, after all, are not constituents of Cosatu because they are unemployed and cannot join a union.

Whether he did or did not take bribes with the understanding that he would influence the awarding of tenders in Limpopo, his defence was not plausible. This is because one does not have to sit on a tender committee to influence a tender. All one needs to do, is to ensure that one has influence or power over those who sit on the tender committee. One can obtain influence or power over those who sit on such a committee by ensuring that that political underlings sit on the committee or by bribing its members or by ensuring loyal political allies sit on the committee or by obtaining a hold over those who sit on the committee by letting it be known that one has damaging information about them which might be leaked to the media.

It is therefore not too difficult unfairly or even corruptly to influence the awarding of tenders without formally breaking the law. This is because it is very difficult to insulate the procurement process from informal loyalties and political considerations. That is why – with tenders – perceptions can be almost as important as the reality.

Not that the Constitution and South African legislation do not attempt to address these problems as best it can. Section 217(1) of the Constitution therefore states that:

When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

Section 217(2) qualifies this general statement as it states that organs of state are allowed to implement a procurement policy providing for categories of preference in the allocation of contracts; and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination. But this has to happen in a manner that is fair, equitable, transparent and competitive.

In terms of section 76(4)(c) of the Public Finance Management Act (PMFA) the National Treasury may make regulations or issue instructions concerning the determining of a framework for an appropriate supply chain management at national or provincial level which is fair, equitable, transparent, competitive and cost-effective. However, according to section 38(1)(a)(iii) of the Act it is the responsibility of the accounting officer/authority of a department, trading entity or constitutional institution to have and maintain an appropriate procurement and supply system which is fair, equitable, transparent, competitive and cost-effective. Where a procurement system is established that is not fair, equitable, transparent, competitive and cost effective, the awarding of a tender through that system would be unlawful.

Which brings us to the curious case of the Western Cape government’s curious politicisation of the tender process in a case that implicates the government at best in improper behaviour.. During 2011, the Department of the Premier in the Provincial Government of the Western Cape contracted with a company for the provision of various communications services. Two special advisors of Premier Helen Zille were appointed to the Committee tasked with evaluating the various bids for this contract. In a draft report by the Public Protector regarding the alleged improper or unlawful participation of these special advisors in the evaluation of the bids, it was concluded that these appointments was unlawful and had rendered the adjudication management and the entire procurement process invalid and constituted improper conduct and maladministration. One of these special advisors, Ryan Coetzee, is often referred to as the political brains trust of the DA and during the last national election he was the party’s main election strategist and Chief Executive.

The DA’s obtained legal advice to try and counter this preliminary finding. The legal advice, prepared by Geoff Budlender, distinguishes between conduct which is unlawful because it is in breach of a prescription of the law and may affect the legal validity of the conduct in question on the one hand and improper because it is inappropriate in some way. The fact that conduct has been improper does not necessarily affect its legal validity.

Budlender then argues – correctly as far as I can tell – that there is no provision in the law which explicitly prohibits the participation of Special Advisers as members of a Bid Evaluation Committee. He also, rather technically and formalistically, argues that the Constitution, read with various guidelines and regulations, do not implicitly prohibit the participation of a special advisor in a bid evaluation committee. Although the involvement of Zille’s special advisors might have been improper, it may not have been unlawful. But the legal advice is not nearly as unequivocal as the DA presented it as being, as Budlender writes that the question whether the appointment of the Premier’s special advisors to the bid evaluation committee was unlawful or not “may be in some doubt”:

In this matter, however, the situation is somewhat blurred by the fact that there is no explicit prohibition of Special Advisers being members of Bid Evaluation Committees. If there is such a prohibition, it is one which is to be inferred from other provisions of the law. It seems to me that this weakens the applicability of the general proposition that the legislation contemplates that a failure to constitute the BEC lawfully is to result in a nullity.

I would argue that in deciding whether the presence of Zille’s special advisors were unlawful or not, one should look at the purpose of section 217 of the Constitution and the relevant provisions in the PFMA in order to judge whether a tender procedure complies with it and that one should also take into account the specific context of each case (as the Constitutional Court often does). One should therefore not look at this question in the abstract (as Budlender seems to do), but should look at the facts of each case and ask whether the system set up to evaluate the tender was in a particular case indeed fair, equitable, transparent, competitive and cost-effective as required by the Constitution and the PFMA.

As I see it, the purpose of section 217 of the Constitution, the PFMA and the procurement regulations set up to give effect to it, is to prevent corruption and to establish a fair tender system in which political or personal financial considerations would play no role in the decision-making of the committee called upon to evaluate and award tenders. Where one of the Premier’s special advisors happens to be a highly controversial and profoundly political appointee (how could he not be, given that he was one of the leading political strategists of the DA during the last national election and that he stood for the position of the Parliamentary leader of the DA a few years ago), it is clearly improper that the special advisor should be part of a tender bid evaluation committee.

As Budlender suggests, it is arguably also unlawful as the participation of such a political animal, someone who advises the Premier and the leader of the DA and is known to be politically highly influential, would sabotage the integrity of the procurement process and would create the reasonable perception that the system is not fair and equitable. Luckily for the DA government, the Premier’s special advisors were not particularly effective and did not manage to sway the committee to support the bid of their choice, which means that the government would probably not have to cancel the contract even if it had followed an unlawful process in awarding the tender.

However, these seem to me to be a rather technical and unnecessarily formalistic approach to a matter of impropriety (or, perhaps, unlawful conduct). What, I wonder, would the DA have said if Paul Ngobeni, the then special advisor to Minister Lindiwe Sisulu, had been appointed to a bid evaluation committee of the Department of Defence? Or if Gwede Mantashe had been appointed to a bid evaluation committee in the Office of the Presidency?

Even if, following the formalistic narrow reasoning of the DA’s legal opinion, such appointments would not be deemed unlawful, they would be wrong and improper and the DA would have had a field day painting the ANC government as corrupt because of the involvement of such highly controversial individuals with clear and unwavering political commitments and loyalties to a bid evaluation committee. The same rule should therefore surely apply to the DA in this case.

It is not appropriate for a special advisor to a politician to sit on a bid evaluation committee, full stop. It is even more inappropriate if that special advisor is controversial and is perceived to be and is in fact, a politician him or herself and is widely viewed as representing the views of the politician he or she supposedly advises.

The DA would do well to stop parsing words and drop the reliance on the formalistic technical legal arguments and admit that what the Western Cape government did was wrong. Although there is no evidence of corruption, it does not make an otherwise improper or unlawful process proper and lawful.

What was Ryan Coetzee doing on this bid evaluation committee in any case? Why did he, unlike everyone else, favour a different bidder? Was he improperly pushing for the awarding of a tender to the bidder favoured by his political boss, Helen Zille? There might be innocent answers to these questions, but because of his high political profile, the perception is necessarily created that something is fishy with his involvement in this process. That is why special advisors, especially special advisors of this kind, should never sit on bid evaluation committees. Why the DA cannot just admit this and move on is beyond me.

He then proceeds to explain why the system of racial segregation and the subjugation of black South Africans by the white minority had “failed” in the following rather cold-hearted and unemotional manner:

But in South Africa it failed. And by the end of the ‘70’s, we had to realize, and accept and admit to ourselves that it had failed. And that is when fundamental reform started…. There are three reasons it (apartheid) failed. It failed because the whites wanted to keep too much land for themselves. It failed because we (whites and blacks) became economically integrated, and it failed because the majority of blacks said that is not how we want our rights…. I can only say in a qualified way. Inasmuch as it trampled human right, it was – and remains – and that I’ve said also publicly, morally reprehensible. But the concept of giving as the Czechs have it and the Slovaks have it, of saying that ethnic unities with one culture, with one language, can be happy and can fulfil their democratic aspirations in an own state, that is not repugnant.

The attitude displayed by De Klerk is shared by many (but thankfully by no means all) white South Africans and to my mind it illustrates quite emphatically why white South Africans are still widely viewed with some scepticism by many black South Africans. It is a timely reminder that many white South Africans do not “get” race and that they do not know or, worse, do not care that they are not getting it.

What De Klerk cannot admit or what he is incapable of admitting is that apartheid was not wrong – a moral abomination – because it had “failed” or merely because the human rights of black South Africans were trampled on in order to enforce the system of white domination. It was morally reprehensible because it was born out of a profound racist attitude towards black South Africans, and its logic was based on the dehumanising belief, at best, that white people were morally, intellectually and culturally superior to black people and, at worst, that black people are not fully human and do not deserve to be treated with even a modicum of concern and respect.

Apartheid was the logical result of the ideology of racism enforced by the state and could only be implemented because white South Africans believed then (as many continue to believe today – even if they are not aware of this and will deny it) that they are infinitely superior as a group to black people as a group.

Apartheid can therefore not be compared with what has happened in the former Czechoslovakia. Neither can it be compared with the impulse in Belgium for French and Flemish speakers to want to govern themselves. In these countries, different language, cultural or ethnic groups have chosen to be goverened by those who are like them, not because of the inherent belief that they are intellectually, culturally and morally superior to another group and because of the fear and hatred towards that group. Unlike with the apartheid system, the founding belief of these societies are not that its members would be tainted, subverted or defiled if they had to mix with another group whom they believed to be inferior.

The system of apartheid was not only tainted by racism or skewed by it, leading to human rights abuses against black South Africans. Racism – the fear and hatred of black South Africans by white South Africans born out of a sense of imperious superiority – was the very reasons for the creation and enforcement of apartheid.

One of the most deeply problematic aspects of life in post-apartheid South Africa is that so many white South Africans continue to deny this fact and seem incapable of confronting their own deeply ingrained sense that as white people they are generally intellectually, culturally and morally superior to most black people – although they think that by making an exception for Nelson Mandela and Archbishop Desmond Tutu they have overcome the racism within them. Fact is: we have not dealt with our own racism, no matter how progressive we are and no matter how we claim to be non-racist. Many of us may not use the “k”-word and may express our abhorance of racism, but we cannot “unwhite” ourselves and cut ourselves loose from the racists culture and world in which we live. How could we, as racism is embedded in Western culture as a defining characteristic of that culture, a culture which helps to define who we are and where we are supposed to “belong”.

That is, perhaps, why so many white South Africans get so defensive when one talks about racism, and when one calls someone out on his or her own blatant or latent racism and why excuses are so often made for racists. Because if as white South Africans we are all morally tainted because we are white, if because being white necessarily implies that we carry within our bodies the virus of racism born out of a false sense of racial superiority, then we stop being who we think we are and we lose our sense of identity as whites who by definition are superior.

When we confront the virus of racism that pumps through our veins because we happen to be white, we have to admit that we are not superior to anyone and, in fact, we become, at least, as morally tainted as everyone else, but probably morally far inferior to black South Africans. But as the definition of whiteness implies for many white people a (often unspoken and unexamined) superiority to other racial groups, this acceptance of the fact that we are morally tainted (also) because we are white (of course, no one in the world is not tainted in some way), is literally impossible to comprehend, something that would drive one mad because, for many, it just cannot be true!

No wonder De Klerk has to insist that apartheid was wrong merely because it did not work very well. If he had to admit that the very premise of apartheid made it an evil system, he would have to confront the fact that he was part of a deeply immoral system and this would fatally undermine or even destroy his sense of self – his sense of self as an essentially good person who might (because of circumstances) have made a “few mistakes” but who remains the morally superior white person he implicitly believes himself to be.

This is perhaps also why the Democratic Alliance (DA) is finding it difficult to navigate the troubled waters of racism. Earlier today journalist Osiame Molefe tellingly tweeted: “Taking on racist models is one thing, what says the DA on apartheid denialist de Klerk.” Molefe is right, but I am not sure that the DA will be able to answer him and to respond appropriately because it would create too much tension inside the DA and that party would be at war with itself.

Fact is that the DA is between a rock and a hard place. If it really wanted to confront its image of being a party for whites, a party that arrogantly exudes the values of white superiority, it will have to confront the deeply embedded notion of white superiority that so many of its current voters (and some of its public representatives) fearfully cling to in order to retain the sense that they are essentially decent human beings. It is never easy to admit that one is not as decent as one would have liked.

What the majority of white people in the world do not understand is that it can be rather liberating to throw off the burden imposed on us by the need to feel superior to others. By admitting that it is impossible to be free from racism, given that we live in a world whose economic and social structures are based on the notion of white superiority, one is freed to begin to face up to one’s responsibilities and to begin to address the problem. If one embraces the fact that one is not special, that (like all other human beings) one is incapable of living a truly ethical life but that one has an ethical duty to continue trying to do so, it is easier to let go of the anger and the hatred (and the fear and the shame which produces the anger and the hatred) that poisons one’s life.

And now I wait for the barrage of angry posts by those who prefer to continue living in their denialist cocoon of festering anger and hatred. But whether they really hate others or themselves, only they will be able to tell.

Tribalism has bedevilled politics in many parts of Africa, referring as it does to the possession of a strong cultural or ethnic identity that separates one member of a group from the members of another group, an identity often deployed to facilitate political mobilisation of that tribe against perceived enemies and threats. Often tribalism goes hand in hand with chauvinism, the notion that one’s own tribe is culturally, spiritually and morally superior to those who do not belong to ones tribe. Tribalism is thus obviously divisive and exclusionary and Nelson Mandela, preaching unity in diversity, warned of the dangers of tribalism in our democratic state.

Tribalism is also, on a personal level, stifling and oppressive and not easily squared with the notion of the protection of human dignity, which assumes that we all have some agency to decide for ourselves who we are and how we want to live. It assumes that because one shares certain characteristics, cultural attributes, a language or a particular kinship bond with others, one should think and behave like the group and associate with it. It demands loyalty to the group and conformity to its beliefs and its political project – no matter how obnoxious, oppressive or downright murderous that political project might be.

This kind of identity politics is by its very nature conservative and intolerant of difference (differences within the group as well as differences between the group and those who do not belong to it). Tribalists usually do not embrace the full spectrum of human possibilities as it sees identity primarily or – in extreme cases exclusively – in tribal terms. But in order to live meaningful lives it is important to embrace and celebrate the multiplicity of overlapping identities that make us who we are.

That is why I am not a great fan of “Afrikaners” (or Zulu’s for that matter) organising around their tribal identity, as if the architects of apartheid were correct and as if there are only minority groups in South Africa – all members of different tribes – who must therefore organise around their tribal identities to protect or advance their own financial and political interests.

I am a white, Afrikaans speaking South African. But I am also a gay, HIV positive, constitutional law professor; a citizen of the world who travels widely and reads the poetry of Wislawa Szymborska and Wally Serote; a rugby supporter who listens to Zahara and Ntando in my spare time; a loving brother of four sisters; an atheist who would never dream of joining the ATKV and would laugh out loud if I were ever to be confronted by the bizarre exhortations of the local NG Kerk dominee.

Although I am proudly Afrikaans speaking, I am decidedly not an “Afrikaner”. In my eyes an “Afrikaner” is a highly political concept and a problematic one at that; it is an exclusionary identity as it refers to a group of white Afrikaans speaking people who more or less share a political orientation, cultural habits and assumptions, religious beliefs and a persecution complex that would even make Judge President John Hlophe blush. By saying that I am not an Afrikaner, I am not trying to pretend that my forefathers did not enthusiastically enforce apartheid and that I am still benefiting from it as a result. But I am saying that I reject the political label of Afrikaner because it says nothing about who I am, what I think, how I behave, who I am friends with and what makes me comfortable.

So when I read in the papers that the ANC has met with a group of “Afrikaners”, purportedly conveying to the ANC the views of “Afrikaners” about what is wrong with current day South Africa, I wonder who these people are speaking for and I wonder why the ANC is humouring them. It does not help that Afrikaans groups at the meeting included all the usual suspects, the very institutions which developed and implemented and championed apartheid: the Afrikanerbond, the NG Kerk, the Voortrekker Monument, the Afrikaanse Taal en Kultuurvereniging, the Afrikaanse Taalraad and the Federation of Governing Bodies of SA Schools.

Maybe it says something about the rightward turn inside the ANC under Jacob Zuma that the ANC has deemed it important enough to meet with this tribal group and is, in effect, endorsing this kind of tribalism. Maybe it says something about the racism embedded in our society. Why is it that when rich white Afrikaans speakers complain, the ANC is prepared to send a high-powered delegation to speak to them, but when social movements like Khulumani, the Landless People’s Movement or Abahlali baseMjondolo complain, they are mostly ignored.

Maybe it says something about the power of money and the economic power of white Afrikaans speaking South Africans that the ANC jumps when the so called “Afrikaners” complain, but will never bend over backwards like this if the complaints emanate from powerless and economically vulnerable groups.

There are lots to complain about in South Africa and, goodness knows, the ANC has a lot of explaining to do. But I would prefer a non-tribalist engagement with the ANC, one that would not be made possible only because the ANC is able to neatly put me in a box as somebody who fits the political description of an “Afrikaner”. The kind of engagement I am talking about is the engagement by NGO’s and social movements, academics and civil society interest groups – and of course, by all people who know that our Constitution allows them to be active citizens (as citizens, not as members of a tribal group), to protest and engage and argue and ridicule the arrogant and the cynical holders of political power.

Given the fact that section 1 of the Constitution states unequivocally that the Republic of South Africa is one, sovereign, democratic state founded, inter alia, on the values of non-sexism, universal adult suffrage, and a multi-party system of democratic government to ensure accountability, responsiveness and openness, section 211 guarantees no more than a symbolic or ceremonial role for traditional leaders. This is because traditional leadership is by its nature undemocratic and not accountable, responsive or open and hence not compatible with democracy if such leadership is going to be given a governance role.

As Prof Christina Murray pointed out, the fact that traditional leadership has survived at all in the democratic era is quite remarkable. This is because – as in most other parts of Africa – South Africa’s traditional leaders were co-opted by the colonial powers to help it govern rural areas. Ugandan academic Mahmood Mamdani famously described colonial tribal rule as “rule by decentralised despots”. This was also the case in South Africa. In particular, from the early 1950s under the apartheid government, the development of legislative and administrative structures in the Bantustans saw traditional leadership used to enforce apartheid and to act as local government rulers in Bantustans and retain control over black South Africans living in rural areas.

The central government’s power of patronage (which remains to this day in the form of the payment of large “salaries” to traditional leaders) was encapsulated in the apartheid government’s power to depose and install chiefs, making the chiefs an effective tool in implementing apartheid policies. Under the corrupt apartheid system the rewards for compliance could be great. As Maloka and Gordon relate, in the Transkei, where 30 chiefs were deposed between 1955 and 1958 for resistance to the demands of the apartheid government, Kaiser Matanzima of the lesser Thembu royal house won the favour of the apartheid authorities and later became president of the Bantustan.

Murray again:

Colonial and then apartheid structures also meant that chiefs increasingly turned to the government rather than their subjects for support. Van Kessel and Van Oomen say: ‘[S]tate recognition [became] more vital for the chieftaincy than popular support. Chiefs had become civil servants, to be hired, fired, paid and, if necessary, created by the government’. Expected to deliver services with no real sources of income, they used some of apartheid’s most vicious laws to support their enterprise. For instance, under apartheid’s system of migrant labour, African men recruited from rural areas to work on the mines had to have their ‘passes’ and permits renewed annually in their home village. Chiefs administered the pass book system and ran the labour bureaux where permits were renewed – and they received a ‘registration fee’ for their efforts.

Given these facts it is surprising that traditional leaders have managed to ingratiate themselves with the African National Congress in the post-apartheid era. It did so by forming the Congress of Traditional Leaders of South Africa (CONTRALESA) in 1987, just as the uprising against the apartheid state was reaching a new intensity. Chiefs saw the writing on the wall for the apartheid system (and was also being impoverished because of the collapse of the pass law system which generated much of the Chiefs’ income) and turned to the ANC. Nevertheless, during the constitutional negotiations, gender activists and “modernists” completely outwitted and outvoted the Chiefs.

Thus the tepid endorsement of traditional leaders in Chapter 12 of the Constitution as well as several provisions in the Bill of Rights which made clear that cultural rights as well as customary law would henceforth be subject to the discipline of the other provisions of the Bill of Rights – including section 9 which prohibits unfair discrimination on any ground – including sex, gender and sexual orientation.

These provisions were unsuccessfully challenged by CONTRALESA during the certification of the 1996 Constitution by the Constitutional Court. In that judgment the Court made the following statement about the difficulties of marrying a system of traditional leadership with democracy:

In a purely republican democracy, in which no differentiation of status on grounds of birth is recognised, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch. Similarly, absent an express authorisation for the recognition of indigenous law, the principle of equality before the law … could be read as presupposing a single and undifferentiated legal regime for all South Africans with no scope for the application of customary law – hence the need for expressly articulated CPs [Constitutional Principles] recognising a degree of cultural pluralism with legal and cultural, but not necessarily governmental, consequences.

But despite the incompatibility of undemocratic traditional leadership with a constitutional democracy, some elements of traditional leadership and customary law were retained. This attempt to accommodate the chieftaincy – despite its tainted past as enforcers of apartheid – was animated by both emotional as well as a practical considerations.

Given the colonial encounter and the devastation it wrought on Africans, traditional leaders have been able – despite their dark, collaborationist past – to promote themselves as symbols of the dignity of African communities and cultures – supposedly untainted by colonialism. Although it is, of course, not possible to return to a pre-colonial era in which traditional leaders, applying customary law untainted by the ravages of capitalism and the greed and dishonesty that always accompanies it, there is a strong yearning – sometimes expressed and sometimes unspoken and unexamined – for such a symbolic return to a different way of life which would signal some kind of rejection of colonialism and European imposed structures and legal regimes.

Second, millions of South Africans still live under a system of customary law, which often provides an easy and cheap mechanism to resolve disputes. Given the fact that many rural citizens are not able to gain access to magistrates courts because such courts are far away from where they live and because they lack resources to make effective use of such courts, and given the fact that, culturally, the common law or the legislation passed by Parliament do not always speak to the ways they live, organise their lives or their attitudes towards those in their community, customary law still thrives in some parts of South Africa.

It is against this background that traditional leaders (who are the main interpreters and enforcers of customary law) are making a political comeback. But because many aspects of customary law are incompatible with the Constitution, given that traditional leaders are not democratically chosen and are in no way independent (as they are paid and can be removed by the government) and given, further, the fact that many traditional leaders have been corrupted by money and greed, there are serious problems with the system relied on by so many people living in rural areas. While the system works relatively well in some places, in others it has been abandoned.

It is therefore curious that with the Traditional Courts Bill, the government is seeking to re-impose a fundamentally undemocratic system that is incompatible with the separation of powers and an independent judiciary – even on those communities who have rejected it. Why our democratic government would propose to pass a law that would potentially bolster the autocratic powers of unelected Chiefs remains difficult to fathom.

Perhaps the answer lies in naked electoral politics. The move therefore might have much to do with the perception among some ANC leaders (which might not be true) that by cosying up to Chiefs the ANC will be gaining more votes in rural areas. It presupposes that Chiefs are universally popular – which they are not – and that rural people by and large will not or cannot think for themselves and will allow themselves to be told how to vote by their respective Chiefs.

Where Chiefs are wise and benevolent and where loyalty to a Chiefs is strong, a Chief might well have an important influence on his “subjects”, but in other areas it is far from clear that support for the ANC by corrupted and unpopular Chiefs will translate into a mass vote for the ANC.

In any event, the Traditional Courts Bill in its current form is clearly incompatible with the Constitution and even if it is passed it will never stand the test of constitutionality. Why some in the ANC therefore seem to be hell-bent on passing this law – despite the dubious gains – remains a mystery.

However, perusing their website, one cannot help but wonder whether Contralesa (pictured below) is not also spurred on by the far less noble goal of self-enrichment. Contralesa thus complains that traditional leaders are being discriminated against:

Traditional leaders of all ranks, i.e. kings, inkosi (chiefs) and inkosana (headmen), are, like politicians in government, public office bearers.  They are entitled to be remunerated in a manner commensurate with their responsibilities and status. The truth, however, is that in this regard traditional  leaders are discriminated against. The best that they receive is a basic salary without the concomitant allowances such as medical aid, motor vehicle  allowances, pension benefits, etc. Due to lack of uniformity in the manner in which provincial governments treat the institution, some traditional  leaders have been provided with motor vehicles, while others have not. Needless to say, this gives rise to resentment and annoyance on the part of  those who do not get this form of support.

Kings and Queens currently earn over R900 000 a year, while other traditional leaders earn between R180 00 and R650 000 a year. Not being provided with a free vehicle at taxpayers expense must therefore cause serious financial hardship for traditional leaders, but not to the extent that they are not prepared to engage in robust engagement about important issues of the day (other than the salaries and benefits paid to them by the taxpayer).

Last year The House of Traditional Leaders, packed with the members of Contralesa, submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution. This Committee, set up in terms of section 45 of the Constitution, has to review the Constitution annually, but in the past 17 years they have rejected every single proposal made to it for the amendment of the Constitution out of hand. The Committee is chaired by Nkosi Sango Patekile Holomisa, who also happens to be the President of Contralesa.

At this year’s committee sittings, most proposals were again dismissed, but not the proposals to change the property clauses and those concerning the abolition of the prohibition to discriminate against gay men and lesbians. The House of Traditional Leaders suggested a redrafting of the Bill of Rights so that it would in future be legal to discriminate unfairly against gay men, lesbians and other sexual minorities, and the Review Committee decided to refer this matter (along with the proposed amendments to the property clause) the political parties represented in the National Assembly for discussion and consideration.

This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded.

The decision of the Committee not to reject this dehumanising and insulting proposal out of hand (as it has done with all other proposals over the past 17 years) suggest that Holomisa believes that it is completely reasonable to ask political parties to consider whether they support unfair discrimination against fellow South Africans and whether they believe that it is necessary to endorse the denial of the human dignity of fellow South Africans.

Given South Africa’s history, this is a shocking move. The apartheid government believed that some people were sub-human because they were black or female or gay, lesbian, transgendered or intersexed and enforced a dehumanising set of laws to give effect to this belief and to try and affirm their supposed superiority as white men. But in the very act of enforcing this kind of discrimination, they affirmed the opposite, namely their own moral inferiority.

As a direct response to this history of dehumanisation the drafters of the Constitution, endorsing the view that all human beings possess an inherent human dignity and are therefore of equal moral worth, prohibited unfair discrimination against individuals regardless of their race, sex, gender or sexual orientation.

The House of Traditional Leaders, on the other hand, seems to believe that some of us are not fully human and that it is therefore imperative that the state should be allowed unfairly to discriminate against us merely because we happen to be emotionally and erotically attracted to members of the same sex and because we do not conform to a specific notion of “normality” created and perpetuated by white, colonial missionaries, a norm ironically and tragically adopted by traditional leaders infected with the ideas of South Africa’s colonisers.

It might well be that traditional leaders are not aware that their support for unfair discriminatory measures against gay men, lesbians and other sexual minorities stem from the colonial encounter and that their fear of (and disgust towards) us stem from their internalisation of the values of the colonial master. It might also be that they are not aware that such fear and disgust often stem from an unacknowledged or unwitting anxiety about their own sexual identity.

But the drafters of our Constitution knew that equality is indivisible and that one cannot truly affirm the human dignity of all if one endorses unfair discrimination against a marginalised and oppressed minority merely because such a minority is viewed as different from oneself (or from who one believes or pretends one is).

The fact that the Committee has decided not to reject this deeply reactionary proposal out of hand, suggests that some of its members endorse inequality and prejudice and support an imposition of uniformity and the concomitant suppression of all difference. It suggests an intolerance of those who do not conform to gender or sexual stereotypes or to some other non-existing or ephemeral norm, created and perpetuated to enforce the continued dominance of patriarchy. Either that or the members of the Committee are prepared to flirt with these notions so roundly rejected by the drafters of our Constitution and by the ANC in its constitutional proposals for short term political gain.

In Minister of Justice v Coalition for Lesbian and Gay Equality Justice Albie Sachs noted that: “the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled.” He continued by warning:

Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.

The acknowledgment and acceptance of difference is particularly important in a society like South Africa where perceived racial differences were used to oppress the majority of citizens. As Sachs pointed out:

The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are. The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them.163 What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

Those who believe that it is reasonable to debate whether some South Africans should be afforded equal concern and respect, are likely also those who believe that the state has a right to impose a standardised form of behaviour on all of us in order to eradicate all forms of behaviour which do not conform with what a small group of pampered patriarchs believe is acceptable (or in their financial interest). This is a small group of powerful men who might well believe that all outward manifestations of love and emotional affection that do not conform to what  they believe is in their interest must be suppressed in order  to retain and expand their power over what they believe to be their subjects: younger men; all women; and homosexuals.

The proposals must still be debated, but the very fact that it will be debated is dehumanising to those of us who must now wonder whether people like Holomisa believe that we are subhuman and therefore deserve to be unfairly discriminated against, vilified and (followed to its logical extreme) eventually raped and killed. Ironically, some of us will recall the depraved immorality of the patriarchal enforcers of apartheid and will know in our hearts that by the very act of raising this issue, the members of the Committee and the House of Traditional Leaders are merely affirming their own moral inferiority.

A company called Bosasa is suing Basson and the Mail & Guardian for publishing a story headed: “Very brave for a young man”. The article relates the facts around a chilling phone call received by Basson from communication strategist Benedicta Dube. Basson was perturbed by the phone call because it transpired that Dube knew where and what Basson had studied, where he was born, and what his ID number was. She also read to him the names of some of Basson’s friends and their professions. During their conversation of almost 18 minutes Dube also threw in lines such as: “You are very brave for a young man” and said she would “kill” Basson if he told anyone about their conversation. She has not sued Basson for reporting this phone call, so one must assume that his version of the phone call is true, which is kind of scary.

Bosasa did sue, because in the article Basson claims that he had exposed in the Mail & Guardian over a period of three weeks “the corrupt relationship between facilities management company Bosasa and the Department of Correctional Services”. Bosasa did not like being called corrupt (or perhaps it is the claim that the corruption originated from a relationship with the Department of Correctional Services that got them upset) and as part of its pre-trial manoeuvres, it demanded some documents from Basson and the Mail & Guardian. They provided the relevant documents but with the names of their sources redacted.

In a preliminary legal skirmish the parties asked the South Gauteng High Court to determine whether Basson and the Mail & Guardian had a legal right to protect their sources in this way – despite having a defamation case brought against it. In a judgment written by Tsoka J, which seems to deal with the potentially dry legal question of the correct interpretation of Rule 35 of the Uniform Rules of Court, the learned judge made an important ruling in defence of the freedom of the media.

Sub rule 2 of Rule 35 states that a party is not expected to produce documents or tape recordings “in respect of which he has a valid objection”. Tsoka pointed out that all the relevant documents were indeed disclosed. The only question was whether Basson and the Mail & Guardian had a valid objection against revealing the names of their sources. The Rule, said the judge, had to be interpreted in the light of section 16 of the Constitution which guarantees freedom of expression, which includes freedom of the media. Bosasa claimed that if it were denied access to the names of the confidential sources its right to a fair trial would be infringed.

As an aside: the latter claim by Bosasa is a peculiar, one might think perhaps a Freudian, slip on the part of Bosasa as it is not facing criminal charges and its right to a fair trial is thus not implicated at all. This is a civil case in which it is claiming damages from Basson and the Mail & Guardian for alleged defamation for damage to its reputation. (Basson and the newspaper claims, rather cheekily, that Bosasa has no reputation that could have been damaged by the article as the company is widely associated with corrupt activities.)

Tsoka J, quoting extensively from the important Constitutional Court case in Khumalo v Holomisa, emphasised the important role played by the print, broadcast and electronic media in the protection of freedom of expression in our society. The media are key agents in ensuring that the right to freedom of expression is enjoyed by all citizens. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media are also important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.

In order for the media to do its job, it is imperative that journalists are able to keep their sources confidential. In the absence of a guarantee of confidentiality, many sources would not co-operate with the media and ordinary citizens would be the poorer for it.

Tsoka then looked at the facts of the present case, noting that the contention between the parties is not whether the Mail and Guardian had acted with malice. It was therefore not relevant to its case who the confidential sources of the allegations of corruption were. The story was either true or it was untrue. The judge also rejected arguments that an Australian case which found that a journalist had to reveal his sources had to be applied here, presenting several arguments to justify this rejection. To my mind the best argument raised by the judge why the Australian judgment would not help Bosasa is neatly captured in the following statement by Tsoka J: “In any event, there is no Bill of Rights in Australia.” How it warmed my heart to read those words.

In any case, Tsoka found that the issue in each case would be whether the names of the sources would be pivotal to the case made by the party suing for defamation. Given the fact that Bosasa has to prove that the statements are defamatory and that Basson and the Mail & Guardian then has the onus to show that its defences against a claim of defamation is valid, the names of the newspaper’s sources at this stage is wholly irrelevant. The sources are allegedly employed by Bosasa and are fearful of reprisal, should their identities be revealed. As Bosasa has a duty to deal with the question of whether the allegations made are true or false, it is neither here nor there who the sources are who gave the information to the newspaper.

Although there is not a blanket journalistic privilege never to reveal one’s sources when one is sued for defamation to the contrary, in this case the sources should be protected as their identities are not central to the case and as they exercised a “laudable civic duty” by acting as whistle-blowers in a case of alleged corruption involving the state. The case may be different where a journalist receives information about the commission or pending commission of a serious crime, a journalist would be foolhardy to claim that it had to protect its sources providing such information. But this is not such a case.

Reading the judgment I could not help but wonder about the possible Oscar Wilde effect in a case like this where an institution like Bosasa sues a newspaper for defamation. Had Bosasa considered the risk it is taking? What happens if, during the trial, it becomes clear that the company was indeed embroiled in a corrupt relationship with the Department of Correctional Services? Has the Directors considered the risk of being arrested for corruption if this were to happen?

And why is Bosasa so adamant about getting accesses to the names of those who had leaked information to the Mail & Guardian? Is there any connection between this eagerness of the company to obtain this information and the implicit threat made to Adriaan Basson that he might get killed for investigating Bosasa? As things stand, this case has already been damaging to Bosasa as it has placed some doubt in the minds of reasonable individuals about its behaviour. It might not be corrupt (and this will only be ascertained during the trial), but has it not shot itself in the foot by its heavy handed legal approach to the case?

Is Bosasa and its directors the ones being brave for taking on the Mail & Guardian? After all, cross examination can often be devastating to those who try to hide things. Only time will tell.

Today, 18 years later, many South Africans are not free — at least not in the sense that they have access to the necessary financial and human resources to make the kind of life choices that could help them to live meaningful and dignified lives.  But it is important to remember how bad things were for most citizens during the apartheid era, not to excuse or justify the excesses and arrogance of some in government today, but to remind ourselves that the glass is at least (still) half full.

I am always amused when I read some of the most outrageous and angry posts on Blogs which accuse our government of almost everything from genocide to Nazism (the latter insult is usually hurled at anyone supporting redress measures based on race, sex or disability).  If these posters had written the same kind of thing during the apartheid era they would soon have received a visit from the Security Branch. They may even have been arrested or, worse, would have disappeared, never to be heard of again (or their charred bodies found in shallow graves years later).

During the various states of emergency one would never have known what was happening in the country if one only read the newspapers or — god forbid — watched the propaganda on the SABC news programmes. These were all heavily censored and the SABC actively spread false propaganda as part of its total strategy against what the Nats called the “Total Onslaught”. (How quaint and far removed from reality this kind of fascist language sounds today.)

It was only through whispered conversations and by experiencing the disconnect between what was happening around one and what the papers said was happening, that one could get a sense at all of how vicious and brutal the apartheid state was acting in order to try and repress an ever spreading revolt against the state.

Today it would be unthinkable that our government would announce a State of Emergency, that it would send in the army to suburbs around the country to terrorise the majority of citizens and that it would close down newspapers critical of the government. Goodness knows, for those of us who somehow thought South Africa is a special nation (why I can’t for the life of me remember), our government has been a huge disappointment. We expected so much, only to be confronted by a government run by ordinary politicians. After a few years in power, our government started behaving like people in power in many other parts of the world, instead of like the paragons of virtue and the champions of the poor and the marginalised like they promised us they would.

We are just another developing country struggling with the demons of colonialism — albeit one with lots of potential.

But perhaps, as we celebrate Freedom Day, it is important to remember that living in a fairly normal country where politicians lie and cheat and steal, where most citizens try to make a better life for themselves despite the venality of some of their neighbours and many of the politicians, is not that bad — especially for those of us with jobs and access to food and health care. Although many of us — rather naively, perhaps — hoped for better, the working poor and middle classes — including all the white people moaning and complaining about the country “going to the dogs” — are far better off than we were in 1994 (both economically and in terms of our freedom to live our lives as we please). It is the unemployed who have real gripes with our government, but for the moment there has been no sustained and organised revolt against the revolting greed of the politicians and the business class.

But our Constitution is one of the most magnificent legal documents ever created. The judgments of our Constitutional Court are read and studied across the world and have made a real impact on the lives of many (if not enough) citizens. Civil society seems to be emerging from its post-1994 slumber and is stirring, challenging absurd moves by the governing party like the proposed Secrecy Bill and Traditional Courts Bill.

Despite our giggling President who never did answer the corruption charges against him, despite the racisms and sexism and homophobia that still haunt our land, despite the cesspit of corruption seemingly engulfing our Police Service, many South Africans are getting along with life as best they can. More and more of us are realising that our government is not that special, and that we cannot rely on our government alone to improve our lives, that we have to do it for ourselves.

Siyazenzela!

Happy Freedom Day.

However, the Constitution does more than protect citizens against the abuse of power by the political branches of government – and rightly so. This is because the ability of ordinary citizens to live lives in which they are free to make life choices and to pursue their own interests and advance their well-being (the US Constitution in its characteristically optimistic manner speaks of the “pursuit of happiness”) is not only constrained by the state but also by private institutions and individuals who have the economic power or social status to limit the freedom of citizens, either directly or indirectly. Private institutions or individuals who are not constrained by the Constitution may well act in ways that directly or indirectly infringe on the human dignity of ordinary citizens and will often act to limit the freedom of citizens to make rational choices in their best interest to enable them to live meaningful lives.

Moreover, poor and marginalised individuals (through no obvious fault of their own) often do not have access to the very basic minimum goods and services — housing, health care, adequate education, food,  water, electricity and the like — and have no access to the resources to pay for those goods and services that would provide them with even the illusion of the kind of freedom that would enable them freely to choose how they want to live and who they want to become and how they wish to flourish.

That is why our Constitution contains not only the civil and political rights mentioned above, but also a set of social and economic rights. That is also why the Constitution places both a positive and a negative duty on the state to take steps to protect and realise both kinds of rights.

The state therefore has a negative duty not to interfere with the existing enjoyment of one’s right, say, to freedom of expression. Thus it cannot usually pass a law banning any criticism of the President. Similarly, the state has a negative duty not to interfere with one’s right of access to housing. Thus it cannot usually pass a law that would empower the state to demolish your home to make way for a parking lot for the use of politicians or to evict you from your home to make way for the North Korean Olympic team. Similarly, the state has a positive duty to create and maintain a police force and a judicial system, an education system and an electricity grid and water supply and roads and independent institutions to conduct elections, to ensure that we are all sufficiently free and capable to develop and to try and reach our full potential as a human being.

That is also why the Constitution clearly states that one can, in certain circumstances, enforce rights against private individuals and institutions. What use is my freedom of expression, say, if my cell phone company is allowed to prohibit me from sending sms messages criticising the President (especially when this company is in cahoots with all other telecoms companies in the market)? And what use is my right to life, say, if a private hospital can refuse to treat me even as I lay bleeding to death in the reception area of that hospital?

Radical free market capitalists do not like to hear this, but the kind of freedom they envisage and which they say is protected by narrow civil and political rights is often illusory, as any semblance of freedom is premised on access to education, to employment or, in the absence of this, at least to access to all the basic stuff required to make meaningful life choices.

Civil and political and social and economic rights are thus interdependent and indivisible as BOTH kinds of rights — operating in tandem — guarantee the kind of freedom which would truly protect and enhance the human dignity of all citizens. But for those who support human rights only if it protects the free market and the rights and freedoms of those who have the access to resources that would enable them freely to make choices, freedom is often little more than the freedom of the rich to exploit the poor and to continue doing so without interference by the state.

“The law, in its majestic equality,” said Anatole France, ”forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” This is the kind of legal regime that those who reject social and economic rights seem to favour. Put differently, in the world of radical free market capitalists, we are all free to choose to stay in the Mount Nelson Hotel if we want to — even if many of us are starving and only very few of us can indeed afford to do so and will ever have the money to pay for one night in the Mount Nelson (unless we happen to be the head of the South African Communist Party in which case the taxpayers will foot the bill).

It is exactly because our Constitution embraces a far more nuanced and expansive (and far less selfishly pro-rich) notion of freedom, that the Bill of Rights includes both social and economic and civil and political rights. That is why arguments made by columnists like Ivo Vegter are so wrongheaded and (to me at least) morally repugnant. In a recent column published on Daily Maverick, Vegter sets up a false dichotomy, arguing that there is a need to distinguish clearly between “freedoms on one hand, and entitlements on the other”.

Freedoms are those rights that prevent another person — and in particular the state — from acting in a way that infringes your liberty. Entitlements are those rights that are economic in nature, and implicitly impose a financial obligation upon someone else.

Vegter fails to acknowledge that liberty itself is not something that can be adjudged in isolation. One has no liberty if one is poor and homeless — except if one defines liberty as the freedom to starve and die of hypothermia. But Vegter, over-egging the pudding even further, then proceeds to make the following astonishing claim that seems to be at odds with any modern notion of social solidarity, which is a bedrock principle on which the modern nation state is based.

The problem is this: if I have a right to healthcare, and I cannot, refuse to, or neglect to pay for it, someone else has to either provide it at no charge, or pay for it. If I have a right to housing, then someone has to buy or build me a house. If I have a right to food and water, which are indisputably necessities of life, and I fail for whatever reason to provide these for myself, then someone else is obliged, by law, to provide them for me. This, in effect, means that someone else has to produce that to which I claim a basic human right, guaranteed to me in the Constitution. There’s a word for people who are obliged to work for others without choice or payment. And those people, under the South African Constitution, have the right not to be subjected to slavery, servitude or forced labour.

In a modern state, the notion of social solidarity leads to the formation of a government that raises money through taxes. In return, the state is required to take such steps as to allow all citizens to flourish. Without this basic solidarity, this notion that we are all in it together and that we have a right to demand that our taxes are spent on roads and electricity production and water purification and education and a police force, there is no need for a modern state.

For citizens to flourish they must be free to make real choices about their lives and how they want to advance their own interests. Without roads, without schools, without a criminal justice system and a police force, without the institutions that safeguard our right to vote, without access to basic health care, no one has any semblance of freedom and the rights that are supposed to guarantee this freedom. Freedom, in essence, is an expensive commodity as are all the rights protected in a Bill of Rights – even in a liberal Bill of Rights that contain no social and economic rights guarantees.

The distinction between rights and entitlements made by Vegter is a false one. None of us can provide everything we need to flourish for ourselves. We need the state to assist us, in essence to provide us with what Vegter calls “entitlements”.

We can have no freedom and no rights, for example, if we have no legal system, no police force, no judiciary, no system of roads, no telecommunications infrastructure, no regular safe and clean water supply and supply of electricity. Without these state subsidised institutions, life would indeed be “nasty, brutish and short” for most people. Yet we have a right to life, a right to freedom of movement, a right to freedom of speech — all derived from the system and the infrastructure paid for by all taxpayers. In the same way, those who do not have money to pay for education of health care should have a right to demand these from the state. If they do not have access to such things, they are not free in any meaningful sense of the word and they have no rights — including the precious civil and political rights, Vegter champions.

All rights are limited by budget constraints. Vegter approvingly quotes someone who claims that: “Rights are not limited by budget constraints, but entitlements are. So, rights are universal but entitlements are not.” This is false. My right to freedom of expression and assembly is limited by budget constraints, just as my right to housing is. For if I want to have my say and if I want to take part in a protest march then I might need the police to protect me from others who might want to kill me for expressing my view. The police service costs quite a lot of money to run and it has limited resources, so it will not be possible in every single case to insist on exercising the right to free speech and assembly and be protected by the police. In any case, how will I be able to protest freely, if I am too hungry to do so? What kind of right is that if my lack of access to food makes its exercise impossible.

Human rights — whether they are civil and political in nature or social and economic in nature — is not to be confused with charity. Vegter seems to argue that whenever rights cost money they are no more than charity. This is conceptually wrong and ideologically reactionary.

Unless one lives in a totalitarian state, rights are a prerequisite for the exercise of one’s freedom. Without the protection of these rights — which are interdependent and indivisible — everyone except the most wealthy and powerful will have no chance of living a meaningful life, a life of dignity, which is the ultimate aim of human rights. It is not charity when the state pays the police to protect me. Neither is it charity when the state pays a doctor to save my life. This is because in both cases, without the intervention of the state, I might not be capable of living a meaningful life or, worse, I might be dead.