When someone (like myself!) criticises the President of the day (for making homophobic statements, say, or for appointing a dishonest lackey as head of the prosecuting authority), it is often said that such criticism is wrong because it does not show respect for the incumbent head of state as an individual and also insults the Office that he holds.
Zapiro, for example, has been lambasted for drawing our President with a showerhead on his head while the Presidency appeared to get rather upset when I used intemperate language when criticising his purported appointment of Menzi Simelane as the head of the National Prosecuting Authority (NPA).
There are, of course, good strategic reasons for the Presidency to pick fights like this. It can change the public narrative and can divert attention from the real scandals – which would usually be the unlawful or scandalous behaviour of the head of state himself. By creating a scapegoat, supporters of the President who might have a complete lack of understanding of what vigorous debate in an open and democratic society should entail, can be made to forget that their leader has acted in a way not becoming of a person who should enjoy our trust and respect.
Similarly there may be good strategic reasons for not attacking the Head of State in over the top or intemperate language as this provides the Presidency with an opportunity to divert attention from the actions of the Head of State, actions that may appear to be illegal, blatantly self-serving or unconstitutional. Such attacks can also lower the tone of democratic debate and before we know it we might all be speaking in dumbed-down soundbites or utter thuggish threats (like Julius Malema has a habit of doing) instead of talking about the real issues facing our nation – including poverty, crime and corruption.
However, if one leaves such strategic considerations aside, there is a more fundamental principle regarding freedom of expression at stake in such cases. The assumption underlying statements by the Presidency and some of his supporters that one has a duty to show respect for the incumbent head of state, both as an individual and for his office, is profoundly anti-democratic.
In a constitutional democracy the Head of State is entitled to LESS respect than the rest of us, not to more respect as the Presidency and some of his supporters sometimes argue.
This is because as the Head of State, the President is also a politician and usually the head of a political party. He has chosen to embark on a career in the public eye that is at the heart of our democracy and what he says and does is of profound importance to our democracy and to our lives. If the President says or does something to endorse homophobic violence, for example, it could embolden others to attack gay men and lesbians whose very lives might be endangered by such action.
As citizens we therefore have a rights and a duty to criticise what the President says and does because without such criticism there can hardly be any talk of real democracy. If we choose to express this criticism in harsh terms or intemperate language we might be strategically dumb. However, it should really be tough luck for the President who should not have chosen a career in politics if he was thin-skinned. Just ask Barack Obama or Tony Bliar, who have both endured extraordinary viscious personal attacks over the years. (When one types “gangster” and “Barack Obama” into Google more than a million hits appear.) As my Mother used to say: “If you are a sucker you must be prepared to be sucked.”
It might be strategically dumb to call the President a gangster, but it is not necessarily unlawful or unacceptable.
Some might argue that my view cannot be squared with “African tradition” as us Africans have a culture of respecting our leaders - no matter what they do or say. (Obviously Julius Malema will not make this argument, but that is a story for another day.) They would be wrong.
You do not have to take my word for it. Instead I could refer you to a 1998 opinion of the African Commission on Human and Peoples’ Rights which dealt with just such a case. The African Commission was set up in terms of the African Charter on Human and Peoples’ Rights, which South Africa has signed and ratified and is bound by, and the Commission can hear individual complaints of human rights abuses by African states and can issue authoritative findings about breaches of the African Charter.
In Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project vs Nigeria the Commission had to deal with the actions of the then military dictatorship in Nigeria when 50,000 copies of TELL magazine were seized by heavily armed policemen and other security officers on the printer’s premises. That week’s issue was entitled: “The Return of Tyranny – Abacha bares his fangs”. The story involved a critical analysis of certain legislation enacted by the military government which ousts the jurisdiction of the courts. The magazine had in effect called the head of state a tyrant and so action was taken against them.
The Commission had to interpret article 9 of the African Charter which states that “every individual shall have the right to receive information”; and “every individual shall have the right to express and disseminate his opinions within the law”. It found that the Nigerian government had breached this article:
In the present case, the government has provided no evidence that seizure of the magazine was for any other reason than simple criticism of the government. The article in question might have caused some debate and criticism of the government, but there seems to have been no information threatening to, for example, national security or public order in it. All of the legislation criticized in the article was already known to members of the public information, as laws must be, in order to be effective.
The only person whose reputation was perhaps tarnished by the article was the head of state. However, in the lack of evidence to the contrary, it should be assumed that criticism of the government does not constitute an attack on the personal reputation of the head of state. People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether. It is important for the conduct of public affairs that opinions critical of the government be judged according to whether they represent a real danger to national security.
The African Commission is therefore of the view that unless statements critical of a Head of State threaten national security (by inciting the overthrow of the government, say) they are protected by the right to freedom of expression. Ridiculing the Head of State by, say, drawing him with a showerhead on his head can never be said to threaten national security.
Of course, a Head of State can embark on a politically highly risky strategy of instituting a defamation claim against the person who criticised or ridiculed him, but then – as often happens with defamation cases – the President himself will be subjected to judicial scrutiny – which could backfire quite badly. Just ask Ronald Suresh Roberts.
I would like to see people properly explore how Africans relate to their leaders and how we keep them in check. The Western method of bluntly insulting people is very unsophisticated.
If former president George W. Bush could take the poisonous , verbal abuse that he was subjected to by the Left , then so can President Zuma .
For example, Bush was called a Nazi by the likes of George Soros and his
Moveon.org flunkies .
” Never in those years was an American commander-in-chief the target of such extreme attacks by his own countrymen with his troops in harm’s way. Never in its history has America faced an external enemy with its own leaders so at odds with each other.
Even as American soldiers have fought a fanatical enemy on the battlefields of Iraq, their president has been condemned as a deceiver who led them to war through “lies;”[2] as a destroyer of American liberties;[3] as a desecrator of the Constitution;[4] as a usurper who stole his high office;[5] as the architect of an “unnecessary war;”[6] as a “fraud;”[7] as a leader who “betrayed us;”[8] and as a president who cynically sent the flower of American youth to die in foreign lands in order to enrich himself and his friends.[9] ”
Source: ” Party of Defeat ” by David Horowitz and Ben Johnson
Pierre, your claim that “in a constitutional democracy the Head of State is entitled to LESS respect than the rest of us, not to more respect,” is a bold and interesting one.
Do you give no credence to the distinction sometimes drawn between the office and the incumbent thereof – that the office of the Presidency does enjoy a certain institutional dignity, and that attacks on the person of the incumbent may in some cases be construed also as attacks on the office? (In much the same way, it is argued, one refrains from personal attacks on judges, not because the judge as a person has any special status, but because harsh criticism of a judge as a person may be thought to indirectly impact on her office.)
The notion that the office of Head of State enjoys a special dignity (that, by derivation, also protects the holder thereof), has its roots in the compromise of English constitutional monarchy: the Regent is eternally beyond reproach. I think your suggestion that this institution is inconsistent with the 1994/6 Constitution is a good one. By analogy with the end of executive prerogatives (Hugo), the notion of an unassailable dignity vested in the Head of State is an anachronism.
Interestingly, those who excoriate you for your “intemperate” remarks about Pres Zuma draw both upon the colonialial discourse of the British constitutional monarchy and upon an asserted African reverence for monarchical authority.
[See the debate sparked when, in Pres. Obama’s state of the nation speech, a Republican congressman heckled him as a “liar.” It was pointed out in defence of the public insult that President Bush had been called a “Chimp” many times while he was in office. (As to this, I think, the defense of truth may assist.)]
@ Mpho
It would be very interesting indeed. The starting point, in my view, would be to define words or phrases that we will use in such a debate to make sure we are on the same page. Terms which may be confusing are, inter alia;
1. Africans
2. Leaders
3. Western
Assumptionson these words could make us believe we are talking about the same thing when we are not.
Mikhail, it seems to me the British model – which has been steadily eroded in the UK – is untenable in a constitutional democracy underpinned by the value of the Rule of Law. I support the convention that the office of the President should be respected in a formal sense as I think this underlines the democratic principle that the office is not linked to one person or one party. Thus, respect should be shown to an incumbent President (who was democratically elected) in fora where he or she exercises head of state powers. When a President is sworn in or officiates at a function as head of state (say, by bestowing orders etc or when delivering a state of the nation address), I would frown upon actions that shows disrespect to that office. (Say one is invited to an official function where the President officiates, one should not make a disturbance or show disrespect to the office of the President by refusing to shake the hand of an incumbent President). If Helen Zille is elected President, say, we all will have an ethical (but perhaps not constitutional) duty to refrain from acton that disrespects that office by shouting her down at her inauguration. That does not mean one cannot call her names when criticising her actions (like appointing an all-male cabinet). Personally I would rather us err on the side of vigorous debate and criticism as this displays the appropriate understanding that in a constitutional state underpinned by the rule of law, the President is not above the law and definitely not above criticism. As long as we respect the office at formal events, the appropriate balance would be struck between the need for vigorous and even intemperate criticism on the one hand and respect for the office on the other.
I think many people would agree that many ANC proponents are too sensitive by far. The point which the African Commission on Human and Peoples’ Rights made in the 1998 opinion is an uncontroversial one: people who opt for public lives ought to reconcile themselves to suffering greater measures of scrutiny than private persons. And I would add that it is not uncommon for such scrutiny to extend to abrasive commentary and that if the public figure finds that too hard to bear, then maybe he or she is unsuited to public life.
Public offices are not sacred. And it would take remarkable measures of both stupidity and immodesty from a politician to claim the right not to be subjected to sharp and even moderately insulting scrutiny. I would add also that such a claim can be either express or tacit and that in either instance, the assertion would be completely wrong-headed.
I wonder since when are South Africans used to ‘insulting’ their leaders, in particular, the Head of State, in the name of vigorous debate and intemperate criticism…
“The assumption underlying statements by the Presidency and some of his supporters that one has a duty to show respect for the incumbent head of state, both as an individual and for his office, is profoundly anti-democratic.
In a constitutional democracy the Head of State is entitled to LESS respect than the rest of us, not to more respect as the Presidency and some of his supporters sometimes argue.”
“….there can be no doubt that persons in public office have a diminished right to privacy,…” – O’Regan, J in Khumalo 2002[5] SA 401 CC at 424E.
” … greater latitude is accorded to political discusion in our own country.” Bogoshi 1998[4] SA 1196 SCA at 1217F
This has an eerie ring to it. Having finished off the Scorpions, they’re now gunning for the prosecutors….
http://www.legalbrief.co.za/article.php?story=20091207090055539
@ Henri
President of the Republic of South Africa v SARFU;
“[243] We are of the view that there are two aspects of the public interest which might conflict in cases where a decision must be made as to whether the President ought to be ordered to give evidence. On the one hand, there is the public interest in ensuring that the dignity and status of the President is preserved and protected, that the efficiency of the executive is not impeded and that a robust and open discussion take place unhindered at meetings of the Cabinet when sensitive and important matters of policy are discussed. Careful consideration must therefore be given to a decision compelling the President to give evidence and such an order should not be made unless the interests of justice clearly demand that this be done. The judiciary must exercise appropriate restraint in such cases, sensitive to the status of the head of state and the integrity of the executive arm of government. On the other hand, there is the equally important need to ensure that courts are not impeded in the administration of justice.”
You may read the following paras for a fuller picture…
At what point can we agree that there is no longer a seperation between the office of President and the person who holds that office?
At what point can we agree that there is no longer a seperation between the state and the party which holds the majority in parliament?
At what point could we agree that we no longer have a democratic government answerable to a constition and the electorate, but a dictatorship that can do as it pleases without fear of consequence?
I strongly agree with the notion that the President is not above criticism of any kind howeber I find it amusing to say the least when that criticism assumes a personal nature. It begins to smack of hypocrisy when we criticise the Malemas of this world for “disrespecting” elders and yet we sink lower than them. Besides I still believe we are using western standards of criticism of our leadership (both black and white) and surely we can define our form of robust criticism without resorting to namecalling. I wouldnt want to call Helen Zille for example a thug no matter how disagreeable I am with her policies. I still am an ardent reader of the Prof’s column however debate becomes sterile if we resort to throwing very low punches.
Sine, thanks for the quote from the Constitutional Court SARFU judgment. I do not see a contradiction between the quotes from the CC posted by Henri and this quote offered by you. In SARFU, the CC was discussing the rather unfortunate decision (to say the least) of the court a quo to call the President to testify before it in the context of the principle of the separation of powers. It argued (correctly, in my view) that given this separation of powers courts should only call a head of state to testify in very limited circumstances because courts must respect the separation of powers and the dignity of the other branches of government and when a head of state is called to testify before a court and cross-examined the court would provide a platform for the potential humiliation of the head of state which – as a court – it should not do lightly. In the hurly-burly of everyday politics the considerations mentioned by the CC in the quotes offered by Henri would obviously be more appropriate. When ordinary citizens, commentators (also ordinary citizens!) or politicians engage with the actions and statements of a head of state which might suggest a disrespect for the law or the Constitution, it is not playing the same role as a court, hence different rules will apply.
Labelling legitimate judicial activity both as conspiracy and the work of a judicial mafia, indicates we are in extremely deep trouble as a country. Does this mean that lawyers and advocates working on cases against government bodies, personalities or aligned and powerful people, will not be allowed to discuss their cases with associates, mentors or those on the same team, for fear it will be considered conspiracy, that the NIA will track their calls and emails, placing surveillance on their daily lives, then use this surveillance as a deceptive defence tool, possibly utilizing it to fabricate counter prosecutions.
How long before the word ‘treasonous’ starts being bandied about as a club to further silence good intent? The best defence is often said to be a good offence. Our government is mastering this.
The tactic is now well established, bludgeon any opposing actions or words, and it appears to be working. So, no more apologies, please! South African legitimacy is in survival status and the government responsible simply doesn’t care or understand the disastrous impact they are having on a once promising country.
@ Prof. and Henri
Pleasure and thanks for your response as well Prof. Indeed the two quotes do not contradict but rather complement each other. I concur further that the quote of Henri neatly dovetails in the present discussion more so than my own quote. However, the reason I produced that quote despite the Concourt in it dealing with the separation of powers doctrine was to highlight the fact that even the Courts, as bearers of judicial privilege just like us bearers of, inter alia, right to freedom of expression, do appreciate and indeed give respect to the Office of the President.
It is one thing to appreciate that in the exercise of both the judicial privilege and the freedom of expression, the Office of the President would indeed be subjected to both closer scrutiny and sharp criticism from robust debate, respectively, which is reconcilable with the Constitutional democracy in which we live. However, it is another thing to subject the Office of the President or its incumbent to highly unacceptable levels of disrespectful name calling which, as the Presidency has justly noted, “clearly go beyond the standards of decency and intelligent debate” and which “does not contribute to the healthy and respectful debate so needed in our democracy.”
Maybe in hindsight a constitutional model where the head of state and head of government is split (like Italy with separate Prime Minister and President) it might have been easier to criticise the head of government without this conundrum of respect for the head of state as the head of state would be neutral above party politics.
Also would have forced the head of government to deal through parliament more as opposed to Zuma’s special occasions only appearance, seeing as he is not a MP currently…
Lungile says:
December 7, 2009 at 13:59 pm
“It begins to smack of hypocrisy when we criticise the Malemas of this world for ‘disrespecting’ elders and yet we sink lower than them”.
Indeed – I agree fully with that.
On a slightly different note – there’s some pretty nice sounding words bandied about when it’s convenient or the popular thing to do, but in practical terms it means nearly zip when it matters most.
It’s a lot of hot air that we as a society show respect for others especially the vulnerable among the aged, young people and poor people.
We are fed with the disingenuous suggestions that the great things happening in our society mitigates the “evil” that is meted out to those who need us most.
@ Sine asks
“I wonder since when are South Africans used to ‘insulting’ their leaders, in particular, the Head of State, in the name of vigorous debate and intemperate criticism”
Sine is right.
Even in the apartheid years, we always showed respek for leaders, even if we disagreed with their policies.
Indeed, the white liberals always showed special respek for PW Botha.
(Apart from that naughty Pieter Dirk-Uys, who, I am afraid, was not always appropriately respekful.)
prof apologised for calling president gangster and he is now justfying his original remarks, you might as well withdraw your apology,you are not a politician but inteligent academic who should be guiding the nation, you are however intitled to express your view without fear, but with respect.
“a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” : Justice William J Brennan in The New York Times v Sullivan 376 US 256 [1964] at 270.
After all we’re a constitutional democracy, not a tribe where the Chief may not be criticized.
See also Minister of Justice 1979 [3] SA 466 C at 475B-C.
@ Pierre
“When someone (like myself!) criticises the President of the day (for making homophobic statements, say, or for appointing a dishonest lackey as head of the prosecuting authority), it is often said that such criticism is wrong because it does not show respect for the incumbent head of state as an individual and also insults the Office that he holds”.
It’s rather disingenuous to suggest that the response was in relation to the criticism of our President.
The annoyance, and therefore the subsequent response (which was no more than a carefully worded single letter) was in regard your having referred to our President as a “gangster”.
It sure sounds to me like “you can dish it out but can’t take it”.
On the other hand it’s possible that you are “spoiling for a fight”
– if so Dworky is best at that, recruit his esteemed guidance – working together you can do so much more (mischief making that is).
@ Maggs
I agree with your submission on Prof.’s first para which basically is a diversion or misrepresentation of what he did (calling our President a gangster). However, as you have seen above from my posts, I have (skilfully?) avoided such a dilution and have focused on the appropriateness (lack) of his gangster statement.
@ Henri December 8, 2009 at 6:10 am
I refer you to Sine December 7, 2009 at 14:47 pm since your post does not negate what I said nor weaken it. What you said actually complements my posts. I am not advocating for worshipping of our President but I am merely advocating for an appropriate method of doing so which Prof. has breached by calling our President a gangster. Gee, a gangster! Our President, a gangster!?!
>(Apart from that naughty Pieter Dirk-Uys, who, I am afraid, was not always appropriately respekful.)
Heh. And all of the Voelvry movement.
The trick is to not get sued for defamation. Because you end up paying your lawyers, while the state can hire the best, since they have gobs of taxpayer’s money.
And even if you win with costs, costs comes from said gobs of taxpayer’s money, so the politician can’t really lose.
So I’m saying it’s more fear than respect… you can get away with it if you’re a public enough like PDU, or you don’t care, like we didn’t back in the eighties… but you hafta be careful if you’re a professor with a career and a blog on the side
The health of South Africa’s democracy is more at risk from excessive deference to the leader of the day (see “Chief” Mbeki), than it is from “disrespect” for the head of state.
I think the circumspect perspective might be that people such as academics and advocates should venture even sharp criticism in language which befits their businesses.
But a different question is whether criticism which, in addition to being well-founded, also tends to insult, should be dismissed as a matter of course. I can think of two reasons as to why such criticism should not necessarily be dismissed without exploration of the merits thereof.
The first is that while scholars and barristers may do well to level even forceful reproach in learned ways, we cannot, I think, expect all commentators to cleave to such standards. For instance, a certain publication may try to carve out a part of a market for itself by presenting criticisms of government in accurate but also abrasive ways. I think that in such an instance, criticism that tends to insult should still be examined seriously.
The second reason – which in a certain sense amplifies the first –is simply this: I wonder whether the notion of governmental accountability means that government owes such a duty to consider criticism that it might be reasonably expected to tolerate even criticism that draws a bit of blood as it were.
That ANC figures are of course far too thin-skinned and sensitive to embrace the second reason. We know this in part because no ANC figure (and no ANC proponent either) has, at least to my knowledge, considered whether the president fits, in some material respects, the definition of a gangster.
I agree with Michael’s apparent distaste for excessive deference to the leader of the day. Forgive me if my views here amount to an over-simplification, but is it not the case that the principal function of a leader in a constitutional democracy is to serve? If there is at least some truth to that, then one might well say that our wretched leader and his minions are far too concerned about the president’s graces and not nearly concerned enough about his responsibilities.
@Sine: “I wonder since when are South Africans used to ‘insulting’ their leaders, in particular, the Head of State, in the name of vigorous debate and intemperate criticism…”
In the middle 80s my wife and I attended a Nat rally in the Stellenbosch Town Hall where PW Botha was to speak. When she started heckling him she was told in no uncertain terms to shut up and show respect for the president. Le plus ca change, le plus c’est la meme chose…
Sine says:
December 8, 2009 at 7:00 am
Hey Sne – yeah, I got that.
I am puzzled over what many think is robust debate – it sorta seems like what is wanted is the freedom to say anything, even childish insults and silly name calling, and nobody should respond.
On another note, for some time I was of the view that for Zuma, his political legacy was going to be paramount and it would largely be shaped by the nature of his administration.
Mandela had the Rainbow Nation, Mbeki had the African Renaissance, Zuma will have the Project South Africa, or so my thinking went – of course I have to reshape that view in the light of saddling us with a NDPP who is so unsuitable which hardly supports my thoughts.
@ Leigh December 8, 2009 at 7:33 am
“…tends to insult…”
Calling our President (the Head of State) a “gangster”, goes way beyond criticism which ‘tends to insult’. I will therefore not respond to the rest of your post because it proceeds from an inappropriate premise.
@ Leigh December 8, 2009 at 7:40 am
Of course it is the duty of our elected representatives AND the civil servants to serve us, members of the public. However, as a corollary of their duty, they have a corresponding right to be treated with respect. Looked at from another angle it can be explained like this; we have a right to be served by our elected representatives and we have a corresponding duty to respect them and treat them with respect. That of course does not mean I will not criticize them. What is needed and healthy is for me to express that criticism in a way and manner which does not abuse the rights of the subject of my criticism and which is not repugnant to my duty to respect the subject of such criticism. This is what Prof. failed to do by calling our President a gangster but for which he has atoned or expiated by apologizing unreservedly and whose apology is accepted.
@ JMB
I obviously concur in your statement. What is interesting though is that she was not told the President is beyond reproach or that she cant criticize him but the manner of so doing was uncalled for.
@ Maggs December 8, 2009 at 8:12 am
Yeah Maggs I also find it unfathomable that we seem to think that the right to freedom of expression is an unlimited right. I guess the Apartheid regime’s abuse of such right caused us lose its import. It is always a challenge to balance our rights with the corresponding responsibility, i.e. enjoying your rights in such a way that you respect other people’s corresponding and/or other rights. For instance, when we express ourselves, we have a corresponding duty to respect other people’s privacy and dignity and good reputation. We seriously have problems in this regard as South Africans. Referring to concomitant abuses of rights by other people does not disabuse us of this failure to exercise our rights responsibly. (Basically, as an example, saying it is OK to call our President a gangster because Julius Malema called CJ Pius Langa a counter-revolutionary is fundamentally flawed. Not only does it fail to realize that two wrongs do not make it right but it makes all of us sink to the level of name calling instead of engaging upon issue-based debate as eloquently stated by the Presidency.
I agree that “some among us” (I love that phrase) seem to be ambivalent about the Zuma Presidency. At first it seemed like we were heading for a totally different but certainly necessary history in South African governance but some of his actions seem less, if at all, calculated. Some of his actions make one think that he does not really think the electorate is literate enough to notice his ‘indiscretions’ as a leader. He is really skating on thin ice as the era of Mbeki being a scapegoat for South Africa’s woes is facing extinction. He has a chance to stand up and be outstanding as a leader. It is now up to him to utilize that opportunity or let it go to waste and be most probably the most over-rated President this country has ever had (Much like Paris Hilton being a celebrity). His destiny is in his hands, as to for how long, I do not know…
Sine, you say that the first of my posts moves from an inappropriate premise. By your use of the words ‘inappropriate premise’, I can only conclude that you think my views are misconceived.
However, and with all respect, you dismiss that post far too swiftly. I say so because it seems to me that you have missed the substance thereof.
Let me say two things about that post: first, I made out that some commentators cannot reasonably be expected to labour under the same linguistic constraints as scholars and barristers. Thus while there may be some merit in saying that academics and advocates would do well to mind their language, other commentators (who clearly enjoy the right to freedom of expression) should not have to suffer the limitation of their capacity to criticise the president in insulting terms.
Secondly, I made out that leaders in a constitutional democracy may owe a greater duty to consider reproach than the presidency presently recognises. That duty, to my mind, may be so great that the presidency should not be allowed to conveniently avoid the substance of the criticism just because it was rudely made. Zuma, and the rest of his thin-skinned henchman, had a good deal to say about the Professor’s description of the president but precious little about what might have motivated the Professor to opt for that description. In short, that sort of cowardice and sensitivity gives me to believe that the presidency is far too concerned about the president’s airs and graces and not nearly concerned enough about the sort of presidential behaviour that could have inspired an articulate professor of law to condemn our gutless leader in exceptionally strong terms.
On a final note, I do not think that whatever relevant right the president may enjoy is so broad as to disentitle people from calling the president a gangster.
I would also add that nobody has even suggested that the right to freedom of expression is without limitations. But it seems to me that an essential characteristic of the right to freedom of expression can be articulated thus: for person A to meaningfully enjoy that entitlement, person B must accept that she will simply have to countenance some communications by A that she does not accept.
I would make three further comments here:
1. B’s duty to brook views with which she disagrees is of course limited.
2. One apparently pertinent question is whether calling the president a gangster falls within the ambit of the right to freedom of expression. (And this question is of course distinguishable from the question of whether calling the president a gangster could be unwise for reasons other than fundamental rights-related concerns.)
3. The third concern goes to the extent to which a president in a constitutional democracy that emphasises the need for governmental accountability should be allowed to avoid considering criticism just because it is couched insultingly. (And that is precisely what the presidency did: it avoided the substance of the Professor’s reproach by sheltering behind the fairly convenient shield of the need for presidential respect.)
@ Leigh December 8, 2009 at 9:03 am
Your views do not come into the picture at all dear. What comes into the picture I painted is that I opted against entertaining the ‘substance’ of your post on the basis that its point of departure is inappropriate. The inappropriate premise I am referring to is your use of the words ‘tends to insult’. There is a huge difference between criticism which ‘tends to insult’ and one which does insult and the procurer of which has even apologized for.
Therefore, I could not entertain an opinion which, at it were, tones down the gravity of the manner of criticism of Prof. for which he has since apologized. Toning down of the name calling was attempted in the opening para of Prof.’s post under which we post as Maggs (Maggs December 8, 2009 at 6:11 am) has correctly pointed out and in respect of which I said I opted against addressing (Sine December 8, 2009 at 7:00 am) and called it a dilution. Once again, until such time as you proceed from the correct premise that the criticism of Prof. actually descended into name calling not a “tendency” to do so. Do not try to tone down the magnitude of Prof.’s ill-advised gangster statement. This is what has rendered your post to proceed from an inappropriate premise and what has caused me to refrain from entertaining it…
I hope I am clear this time around…
Sine, it seems that your criticism of my post is exceptionally fussy. But if it will inspire you to look at the substance thereof, I will say that the Professor’s communication was at once a well-founded criticism and an insult.
And to offer sound bites of some of the substance of my earlier post, I would say this: first, while some members of our society may well labour under linguistic constraints, many should simply not have to suffer the limitation of their right to freedom of expression by being disentitled from a deal of name-calling. Secondly, I think the presidency does not fully grasp the president’s role in a constitutional democracy in that it is disproportionately concerned about the president’s airs and graces. And for support for the second of these contentions, I have turned to the presidency’s response to the Professor’s response which is long on detailing the need for moderation and presidential respect but markedly short on considering the merits.
@ Leigh December 8, 2009 at 9:45 am
Leigh, I take issue with the ‘if’ and the ‘will’ in the second line of your para one as it betrays your continued toning down of the gravity of the insult directed to our President, who happens to be the Head of State. Admit that the President was insulted so that we can use that appropriate premise in taking this discussion forward. (Now I am being exceptionally fussy)
@ Sne,
“He has a chance to stand up and be outstanding as a leader. It is now up to him to utilize that opportunity or let it go to waste and be most probably the most over-rated President this country has ever had (Much like Paris Hilton being a celebrity). His destiny is in his hands, as to for how long, I do not know…”.
I’m still pretty hopeful, but not as much as I was until soon after the elections.
We wanted open and robust debate. That we now have. The playing fields have been leveled – what better example than Pierre and some of his followers resorting to the level of utterances which I previously thought to be the preserve of Juju and his followers – that’s as level as it gets.
Sine, the question I have asked myself is whether you are justified in taking issue with what you regard as being an inaccurate statement of the Professor’s comment. I do not think you are. So while I would enjoy a response from you that tended to substance rather than straying to the periphery, I am in no desperate need to read one.
Sine says:
December 8, 2009 at 10:00 am
Hey Sne – I don’t buy the crap that the “gangster” reference was irrelevant to the thrust of the Pierre’s writing.
Everything that is written is relevant, otherwise it would not have been written.
Now that the “kak hits the fan” it’s disingenuous to say that the essence was not that.
In short the expectation is that the reader will selectively read those portions which Pierre and his followers would like us to read and not those portions which are contentious.
I also don’t buy the kak that government and “some among us” ( (:) ) should not respond to what we consider ugly utterances especially by people who ought to know better.
Maggs, let me just say that I do not think calling Zuma a gangster is an entirely inaccurate description. I say so not to offend you but rather to draw a distinction between that communication on the one hand, and the sort of fare that we can expect from Malema, Meeko and so on.
The common ground between the communications is that all could affront the intended recipients. But the material difference is that the Professor could readily have presented a basis for is view. Conversely, people after the fashion of Malema and Meeko typically give no consideration to the tenability of their views.
Leigh says:
December 8, 2009 at 10:19 am
“Conversely, people after the fashion of Malema and Meeko typically give no consideration to the tenability of their views”
It’s nonsense to say that because you don’t agree with what they say that implies that they “typically give no consideration to the tenability of their views”.
Give an example of where you think that what you say illustrates that.
oops
“Give an example of where you think that what you say illustrates that”.
Shud be “Give an example of where you think that what they (Malema and Meeko) say illustrates that”.
@ Maggs December 8, 2009 at 10:05 am
I find myself clinging to dwindling hope as well. Hope he redeems himself soon. It is amazing how often we miss an injustice when it is done by us or to other people when we would jump from the onset the moment that very injustice is about to be done to us. We shout over rooftops when Julius uses inappropriate language yet we find it difficult to accept that the Prof. has done the very same thing that we criticize from Julius Malema even when the Prof. has apologized for his actions. I am flummoxed…
@ Leigh December 8, 2009 at 10:07 am
I am glad to hear that you are in no desperate need to read a substantive response from me.
@ Maggs December 8, 2009 at 10:13 am
Agreed.
Maggs, I am happy to give you an example that demonstrates the distinction I drew: let us take Meeko. In a statement about the Reitz four incident he made out that the famously stupid shoot-to-kill approach must be applied to all racists (including Jansen). He also said that Jansen is equally criminal like those four racists. First, advocating that shoot-to-kill approach was reckless and dangerous. Second, while I think, with respect, that Professor Jansen’s approach was misconceived, it simply has to be said that his actions were in absolutely no way comparable to the Reitz four. So in short, Meeko’s statement was reckless, dangerous and groundless in addition to being insulting.
Calling Zuma a gangster is hardly polite. But a different question is whether that view is defensible. It certainly could be given his conduct throughout the year. That is, this year has seen Zuma or his underlings take a number of decisions that are probably unlawful. This year has also seen Zuma and his legal team make the unlawful commission of receiving classified information which in turn served as the highly dubious basis for the NPA dropping its case against Zuma.
In short, if gangsters are properly described as people who brazenly break the rules to promote their own interests then it is hardly untenable to call Zuma one.
Thus we have examples of impolite remarks that are different insofar as one has a clear basis, and the other is groundless and mindless.
Henri says:
December 8, 2009 at 6:10 am
“After all we’re a constitutional democracy, not a tribe where the Chief may not be criticized.”
Yes, that was actually the point I made at the first posting which no one seems to care about. I am not aware of any tribe where the Chief is beyond criticism, however it is simply not done in this blunt, disrespectful way that so many here seem to feel is essential for a healthy democracy.
For certain, Africans have developed a means of keeping leaders relevant without embarrassing them or creating unnecessary division. Is this undemocratic because it is not screamed across newspaper headlines? I don’t think so.
The President’s statement tries to pull rank on Pierre, which is silly, isn’t it? They are, after all, two grown men. I think the President’s statement missed an opportunity to lay out an alternative way for our public debates to be structured which does not resort to playground insults interspersed with Zille’s finger wagging. What I would regard as the more sophisticated African way.
Leigh says:
December 8, 2009 at 11:15 am
All that you said about Meeko is your interpretation. I would like to read exactly what Meeko said before agreeing or disagreeing with your view.
Any idea where we can find the original text?
Re the “receiving classified information” – what would you have expected Zuma and his lawyers to do with that information once they received it?
@Sine
you being petty to be honest,
I think the main issue is this:
sirjay jonson says:
December 7, 2009 at 14:21 pm
South African legitimacy is in survival status and the government responsible simply doesn’t care or understand the disastrous impact they are having on a once promising country.
Michael Osborne says:
December 8, 2009 at 7:23 am
The health of South Africa’s democracy is more at risk from excessive deference to the leader of the day (see “Chief” Mbeki), than it is from “disrespect” for the head of state.
I think South Africa infact the rest of the world needs to look at a new political module, democracy has had its time, time to evolve now and im in favour of Natrual Order, you dont need governments and u dot need gansters or warmongers to run them
Maggs, you can find Meeko’s words in reported press statement on the Professor’s blog dated 28 October 2009. Two things here: one, you may respond by saying that this is merely a report of what Meeko said. I would respond by saying that I happened to watch the Carte Blanch broadcast that showed footage of Meeko making this reckless, groundless and generally mindless statement. This report is accurate. Two, while you are no doubt at liberty to check various sources on your own, for the sake of convenience, I will provide the relevant Meeko quote here (which mine reflects closely):
‘Like President Jacob Zuma when he said the police must meet fire with fire [referring to police shooting armed criminals], the shoot-to-kill approach must also apply to all the racists, including Jansen – because he is a racist. He must know that we have removed more powerful people than him before. Jansen is equally a criminal like those four racists.’ Meeko aka @#!%
As regards the classified information (which it was a criminal offence to receive) at the very least, Zuma should not have relied on it to make representations.
So to return to my earlier point: I have tendered two examples of impolite speech which are distinguishable insofar as one is well-founded and thus deserving of critical inspection and a decent attempt at refutation. The other is the sort of groundless and mindless fare that we can expect from the ANCYL.
@ Chris McDaniel December 8, 2009 at 11:29 am
I like your honesty bro. My English teacher once said; “Honesty is the best policy.”
I do not contest the main issue as enunciated by the relevant quotes. However, that is not the only issue. The other issue is the failure to follow appropriate procedure.
The only reason why we cannot move forward in the discussion with Leigh is because she’s refusing to accept the fact that Prof. was wrong to call our President a gangster. She thinks that such was acceptable merely because the Prof. was offering substantive criticism of the appointment of Adv Simelane. Instead of admitting, as Prof has done, that calling President Zuma a gangster is wrong, she’s hiding behind the substance of Prof’s criticism despite the public apology from Prof which Leigh knows very well about. She then decides to tone down the insult to our President by saying it amounts to criticism which ‘tends to insult’. From this ‘inappropriate premise’ (toning down) she proceeds to make out ‘substantive’ arguments.
No matter how good her substantive arguments are, the fact that her premise is flawed is enough to turn me off her substantive posts. Her continued refusal to admit that Prof was insulting by actually, as opposed to tends to insult, calling our President a gangster betrays the fact that she’s willing to sacrifice the correct procedure in order to get the outcome she desires. This I cannot accept in the Constitutional era. That is why in our justice system we have; Procedural Law (both Criminal and Civil), Administrative Law and the Law of Evidence. That is why a conviction can be set aside if the convict was not informed of his right to remain silent or was not informed of his right to cross examine. Procedure is important!
If Leigh or Prof or whoever else wants to meaningfully criticize our President, she or he must do so in a manner which does not abuse our President’s respect and the respect of the office he holds.
Maggs, I think I have acted in good faith here in that I have answered your questions. I hope you will extend to me the same manner of courtesy by answering a fairly straightforward question that I will ask below.
I will couch that inquiry in moderate terms here: let us say that gangsters break the rules to promote their own selfish interests. This cannot be a contentious position. We can say also that brazenly taking unlawful decisions and criminally receiving and using tapes to help one’s self amounts to rule breaking for selfish purposes. This is also straightforward and uncontentious.
The question is this: if we can say that Zuma took or enabled the taking of unlawful decisions and criminally received and used tapes, did he, in breaking the rules to help his selfish purposes, act like a gangster?
I think the answer is yes. And with respect, I would appreciate a reply that answers the question in the light of the submissions that lead up to it.
something here to cheer everyone up Lmao very funny. I enjoyed the comment on the Mastercard
http://blogs.news24.com/Mos_Native/the-race-card-for-dummies
@ Chris and Sine,
Thanks Chris for venturing your views. If you are still inclined to pursue this particular exchange in this discussion, I would like to extend this post to you as well as Sine. Sine, you say that we cannot move on in this discussion because I refuse to concede that it was wrong of the Professor to call Zuma a gangster. You also think it was wrong of me to, in a sense, ‘tone down’ the Professor’s remark about Zuma.
It seems to me that these objections are at least very unfair. They are unfair because even if (a) you and I disagree about whether the Professor was wrong and (b) even if I have ‘toned down’ the Professor’s remark, these points are completely severable from the substance of my posts. The points with which you take issue are merely introductory remarks.
The substance of my posts, for the most part, can be reduced to two submissions and much of the content here is simply copied and pasted from my earlier posts: first, while some members of our society such as advocates may well labour under linguistic constraints, many should simply not have to suffer the limitation of their right to freedom of expression by being disentitled from a deal of name-calling. For instance, a certain publication may try to carve out a part of a market for itself by presenting criticisms of government in accurate but also abrasive ways. I think that in such an instance, criticisms that involve insults should still be examined seriously. Secondly, I think the presidency does not fully grasp the president’s role in a constitutional democracy in that it is disproportionately concerned about the president’s airs and graces. Leaders in a constitutional democracy may owe a greater duty to consider reproach than the presidency presently recognises. That duty, to my mind, may be so great that the presidency should not be allowed to conveniently avoid the substance of the criticism just because it was rudely made. Zuma, and the rest of his thin-skinned henchman, had a good deal to say about the Professor’s description of the president but precious little about what might have motivated the Professor to opt for that description. In short, that sort of cowardice and sensitivity gives me to believe that the presidency is far too concerned about the president’s airs and graces and not nearly concerned enough about the sort of presidential behaviour that could have inspired an articulate professor of law to condemn our gutless leader in exceptionally strong terms. And for support for the second of these contentions, I have turned to the presidency’s response to the Professor’s blog – which is long on detailing the need for moderation and presidential respect but markedly short on considering the merits.
Mpho says:
December 7, 2009 at 8:47 am
I would like to see people properly explore how Africans relate to their leaders and how we keep them in check. The Western method of bluntly insulting people is very unsophisticated.
I always suspected that Julius was a western agent.
Sine says: December 8, 2009 at 12:04 pm
“…she’s willing to sacrifice the correct procedure in order to get the outcome she desires.”
Like JZ saying: “stuff the legality of these tapes, I’m using them in my representations because my ‘desired outcome’ is not to be prosecuted”???
@ Mzo,
You addressed your last post to Sine. I would appreciate some of your input here. I am not exactly asking you to serve as an arbiter. But as I said, your input would be appreciated. (And I apologise for asking you to undertake so lengthy an exercise and I will completely understand if you have not the time or inclination to lend a hand.)
With all respect, I think that Sine’s issues with my posts, in addition to being unfair, are immaterial for reasons set out in the post which I directed to both Chris and Sine. But for the sake of convenience, I will restate those reasons here: Sine’s objections are unfair because even if (a) he and I disagree about whether the Professor was wrong to call Zuma a gangster and (b) even if I have ‘toned down’ the Professor’s remark, Sine’s points in the post to which you refer are completely severable from the substance of my posts.
My two submissions, at their simplest, are these: one, I think that to expect all members of our society to avoid insulting leaders (including the president) could potentially amount to a constitutionally objectionable limitation of the right to freedom of expression. And I would add here that it must be clear that for people to truly enjoy that right, others must simply tolerate some communications with which they do not agree. Two, our constitution contemplates governmental accountability. This suggests heavily that leaders (including the president) owe a duty to consider criticisms of their behaviour. I said further that I think that to suggest (as some views do) that the president, for instance, could be relieved of having to consider the grounds offered in support of criticism as a matter of course simply because the criticism tends to or simply amounts to insult cannot wash. It cannot wash because elected officials – being servants – ought to be more concerned about their responsibilities than their airs, graces and sensibilities. I think we have grounds for submitting that the presidency is more concerned about the president’s sensibilities than it is about the president discharging his duties. I say we have such grounds given that the presidency’s response to the Professor’s blog is silent on the nature of the president’s conduct that inspired the now fairly infamous comment.
You now know the core thrusts of my submissions. You also know that Sine thinks we cannot make progress as regards the consideration of the two issues that I introduced without me conceding that (a) the Professor was wrong to call Zuma a gangster and (b) without me toning down the Professor’s remark by saying it tends to insult.
I said initially that Sine’s objections missed the substance of my posts. I said also that those objections were exceptionally fussy. I said further that at the very least they are unfair given that the aspects of my posts with which he takes issue are severable from the substance. Here I am saying, with respect, that those objections are irrelevant and misconceived given that I made submissions that depart from the specific instance involving the Professor.
What do you think?
Leigh says:
December 8, 2009 at 12:09 pm
Your straightforward questions are not straightforward at all.
And you answered it as well – that sounds rather complicated to me.
However on Meeko and Malema – I think they both have some rather unfortunate comments, as unfortunate as those who purport to know better calling our President a gangster.
With the full text of what they said, it would not be difficult to extract those portions that are sensible and then say that people like me (who think that their comments are outrageous) are simply focusing on the non-essential parts of what they said.
Re the NIA tapes – “if we can say that Zuma took or enabled the taking of unlawful decisions and criminally received and used tapes” – if we can say that we can then speculate, but for now we are pretty much in the dark about that.
That said, once his legal team had those tapes then, in my view, they were correct in presenting it to the NPA – I cannot see how presenting those to the NPA was wrong.
I don’t for a moment believe that the NPA was not relieved to find a way out of this political hot potato and I suspect that even without those tapes they would not have prosecuted our President.
But that’s besides the point, they had a convenient escape chute and as flawed as that may have been, they used it.
lol
com on guys, i really dont see an issue with Pierre calling Zuma a gangsta.
How many of you guys called my ex president a whole bunch of interesting names?? do I give a shit? nooo
Pierre if Zuma is a gansta to you then Zuma is a gansta to you, Sine if Zuma is a saint then Zuma is a saint to you. Are either one of you lossing any sleep over this? cos im not
Leigh says: December 8, 2009 at 15:53 pm
Apologies for the late response.
I choose not to express an opinion on the “debate” between you and Sine save for what I say below.
On the points you raise, let me express a few comments:
“one, I think that to expect all members of our society to avoid insulting leaders (including the president) could potentially amount to a constitutionally objectionable limitation of the right to freedom of expression. And I would add here that it must be clear that for people to truly enjoy that right, others must simply tolerate some communications with which they do not agree.”
I disagree. Freedom of expression DOES NOT MEAN that people should be allowed to hail insults especially when they can make their points just as forcefully without resorting to those insults. Furthermore, your view above does not seem to appreciate the difference between you saying something I don’t agree with or don’t like and you hailing an insult at me.
“Two, our constitution contemplates governmental accountability. This suggests heavily that leaders (including the president) owe a duty to consider criticisms of their behaviour.”
I agree. However, accountability and criticism is VERY different from insults. What is objectionable for me is the insults, not the criticism or holding govt officials accountable.
“I said further that I think that to suggest (as some views do) that the president, for instance, could be relieved of having to consider the grounds offered in support of criticism as a matter of course simply because the criticism tends to or simply amounts to insult cannot wash.”
This is where I (sort of) agree with Sine and where I think you are confusing two separate concepts. I agree with you, if it is CRITICISM, sure the Pres must consider the grounds thereof. However, I hold the view that the President should not even have to “consider the grounds offered” for INSULTS.
In my view, there can always be justifications for CRITICISM (fair or unfair) but there can never be justification for INSULTS.
Maggs, the Professor may want to think about handing out prizes for clairvoyance because I pretty much (hopefully without too much in the way of immodesty) predicted much of your answer – although it has to be said that doing so was no great achievement.
The question I asked, for a start, IS straightforward. But let me break it down to you anyway: you and I could spend forever in a day bandying words. I think it is very likely that Zuma has taken or enabled the taking of unlawful decisions. You have demonstrated repeatedly that you are not even prepared to investigate whether this could be true. So going back and forth here would largely be a waste of time. And if you see nothing objectionable about committing a crime by receiving classified information and then using that information in order to elicit a very dubious decision, then perhaps you and I should avoid discussing that narrow score.
My use of the word ‘if’ is meant to show that we will have to make some assumptions if we want to make progress. That strikes me as being very straightforward. That is, we may have opposing views about X. But IF my view as to X were to be true (ie: let us assume for the moment that my view is true), then what do you think about Y?
Another way to capture the exercise that I introduced is this: let us assume for the moment that all of the allegations I would make would prove true. Those allegations are (a), the way gangsters behave, (b), the unlawful things that Zuma has done and (c), the common nature of what gangsters do and what Zuma does.
The question is: would those allegations disclose a basis for the view that Zuma acted like a gangster? I think that those allegations disclose such a basis. That is, gangsters break the rules to selfishly help themselves. Zuma has broken the rules to selfishly help himself. It is no great leap of logic to liken Zuma to a gangster or even call him one directly.
The trouble is that you have yet again allowed your over-ardent partisanship to govern your mind.
mzo says:
December 9, 2009 at 7:07 am
In my view, there can always be justifications for CRITICISM (fair or unfair) but there can never be justification for INSULTS.
depends how you look at it.
See you equating the word “Gangsta” to a swear word lets say like “fuck”
or we can equat “Gangsta” to “barbarian” and this would be a mere etiquette rebuke
Simply put words are merely sounds. No one collection of sounds causes universal discomfort. In regards to the history of oppression tied to a word, language evolves to reflect cultural and historical changes.
Pierre is merely reflecting the culture with what is perseved to be seen with in the ANC or within government a culture of corruption, greed, Gangsta’s
Pierre shouldnt of apologiesed he is merely reflecting the culture that he sees
The idea that no gentleman ever swears is all wrong. He can swear and still be a gentleman if he does it in a nice and benevolent and affectionate way.
— Mark Twain
@ Mzo,
Thank you for your response. And doubly thanks for your usual brand of thoughtfulness. Let me apologise to you for the great length of this post – I am virtually on leave and thus I have a bit of time.
It seems that your response reflects two points that are at issue between us. With respect, I do not agree with your submissions.
Your first submission is that freedom of expression does not mean that people should be allowed to level isnsults especially when they can make their points forcefully but with out resorting to insults. With all respect, your positions here betray two flaws: one, it is out of touch with Constitutional Court jurisprudence on this score. Two, you misconstrue, at a later juncture, a point that I made. Kriegler J (who happens to be one of my favourite lawyers) had this to say in S v Mamabolo 2001 (3) SA 409(CC)at para 37:
“Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression – the free and open exchange of ideas – is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore, we should be particularly astute to OUTLAW ANY form of thought control, HOWEVER RESPECTFULLY DRESSED.”
The emphasis above is mine. But the extract from Kriegler J’s judgement demonstrates clearly that the scope of the right to freedom of expression in this country is very wide indeed. And the Constitutional Court is prepared to construe it widely. Another indication of its breath of ambit is that unlike in American law which recognises the right to freedom of speech, our constitution recognises the broader entitlement of the right to expressive freedom (which includes conduct). So while the right is certainly not unlimited, there are casuistic and legislative indications to the effect that we need to interpret it widely and this is the point on which I take great exception to the submissions put forward by you and Sine.
You also say that I do not seem to appreciate the difference between “you saying something I don’t agree with or don’t like and you hailing an insult at me.” With respect, I think you misunderstood my point. I will reformulate that point here: Person A may insult a leader. Person B may dislike or disagree with A’s conduct. But this goes directly to the protection that the right to freedom of expression afford A: B does not have to like, condone or agree with A’s communication for A to be entitled to make it.
I turn now to the second of the issues: I say that the president cannot simply avoid dealing with criticisms as a matter of course just because they are couched in insulting language. You make out that the president should consider grounds for criticism but not if the communication amounts to insult.
With all respect, I think your view is insufficiently nuanced. Let us take the facts of the Professor’s piece which reflected the now fairly infamous remark: the Professor set out a basis for the view that the president acted highly objectionably. And on the strength of that exercise, he concluded (and not unreasonably) that the president is a gangster.
Whatever you may say about the remark, it was certainly not baseless. And given (a) that our constitutional democracy clearly contemplates governmental accountability (b) that leaders should have to explain themselves (c) the particularly distressing nature of the conduct complained of and (d), that the Professor provided a compelling basis, I stand by this view: the president, given the circumstances that obtained, should not have been able to take issue with the remark but avoid the grounds tendered in support thereof. That is cowardly. It betrays complete disregard for the breadth of the right to freedom of expression. And it demonstrates that the presidency is not at all concerned about the merits here.
We are real animal farm, some are more equal than others.
SA Airlink overshoots the runway there is all noise around us (34 passengers) all survived. In the same week two trains collide and pregnant woman is dead with hudreds involved, less noise. A bus in moloto road crashes 4 dead and 62 injured, ahhhh thats small stuff.
Leigh
I do not read the extract from Kriegler to support a view that we can hail insults to people under the guise of freedom of expression. If I am wrong on this score, then it would appear to me that people who complain about Malema’s utterances every now and then are nothing but hypocritical. The wide meaning you advocate for seems to be far reaching than Kriegler himself would have contemplated.
I can never agree with a proposition that a person (A) can EVER be ENTITLED to hail insults at other people and thereafter claim protection under the freedom of expression.
In short, I do not believe that freedom of speech would in any way be curtailed if insults were taken out of our public discourse, whether such insults emanate from Malema, Zille or Prof.
In conclusion, are you perhaps not unjustly accusing the Presidency of being cowards simply because you may just be misunderstanding the purpose of their statement. I do not understand the statement to have been an attempt to justify Adv Simelane’s appointment. It seems to me that the statement was intended PRIMARILY if not SOLELY to “call the Prof to order” (if you may). The duty to justify Adv Simelane’s appointment was left to Minister Radebe, which he did – rather poorly I might add.
For the record, I think Adv Simelane’s appointment was ill-advised, at best!!
@ Leigh December 9, 2009 at 8:30 am
I associate myself with Mzo’s post (Mzo December 9, 2009 at 7:07 am) to which you’re replying.
I appreciate the authority that you have invoked for your viewpoint. However, nothing in the quote in its entirely and in your emphasis lends support to your proposition that in expressing ourselves or in criticizing the Head of State, we should resort to insults. In fact, in my view, resorting to insults when showing our disagreement with anything merely serves to highlight an abuse of our freedom of expression. Moreover, from the reading of that quote, what seems to be protected thereby is the aspect of the freedom of expression which deals with having ideas, expressing same and having the right to disseminate such ideas through others having rights to receive such ideas. An example of the aspect of the right to freedom of expression pronounced upon in the relevant quote would be you having an idea of writing a book detailing how the ANC targeted people belonging to IFP prior to 1994 elections in order to scare them from taking part in the general elections. Such an idea, the right have the book published in South Africa and sold, the right of other people to buy it and share your ideas, etc. would be aspects of the right protected under section 16 of the Constitution. The quote you have provided deals with the above scenario and does not extend to allowing you to hail not criticism but insults to the Head of State. Ridiculing is one thing but insulting is another. Honestly, I do not see how the prohibition on insulting the Head of State is limiting your right to freedom of expression. It should be noted that what is prohibited here is not the substantive right to criticize the President or the Presidency but the inappropriate manner of doing so. Do you consider an insult directed to another as exercising freedom of expression and if yes why?
I have noted the example that you have given in your post. The example is clearly lacking in one material respect. It makes no mention of the rights of the insulted leader. Leigh, I note that you equate insulting with criticizing. The former is unacceptable and the latter is welcome in a Constitutional democracy like ours.
Leigh, do you think if you were to shout your criticism (as opposed to voicing them) in a Board Meeting the Board Members would just focus on the merits of your criticism and not on the manner in which you have chosen to “express” such criticism? Like I said before, the manner of doing things is important and you cannot simply hide behind the substance or merits. In order to avoid chaos, things are done in an orderly fashion and each critic must observe this order regardless of how valid his or her criticism is. Leigh, here you are trying to flout adhering to a proper way of exercising your right to freedom of expression which is not an unlimited right. Asking you to observe a proper manner of exercising your rights does not automatically limit your right. This is especially so if the manner concerned has as its objective the protection of other people’s rights…
@ Mzo,
Thank you once again for taking the time. It seems to me that we can reduce our exchange to three issues: the first is whether the right to freedom of expression is wide enough to protect insults. The second is whether the right to freedom of expression would be curtailed by removing freedom of expression from our public discourse. And the third is whether I have unjustly accused the presidency of being cowards due to my misunderstanding of the purpose of their statement.
I think that the scope of the right to freedom of expression can protect insults. That is not to say that it will protect every communication which amounts to an affront – and I have never advanced that the right is so broad in scope as to cover every insult in every circumstance. For a start, you will of course be aware of the section 36 limitations inquiry. And secondly, Kriegler J made it clear in the Mamabolo case at paragraph 41 that the right to freedom of expression has to be balanced with the right to dignity. What I have said is that we cannot abide a position to the effect that insults automatically fall outside the right’s sphere of application. If you can agree that the jurisprudence recognises that this particular right is to be construed widely, then my position may start to look less contentious.
That being said, we do have two constitutional law experts in the house as it were. So I would like to ask the Professor and Michael for some input here – on the understanding that the Professor can offer his legal opinion on the breadth of the right to freedom of expression without in any way reducing the sincerity of his apology to the president.
If the Professor or Michael could spare the time and say a few words here: is it the case that the right to freedom of expression is never wide enough to protect communications that amount to insults?
I turn now to the second issue: you make out that in your view, freedom of expression would not be curtailed if insults were taken out of the public discourse. With respect, I disagree with this view. Making an insult is a form of expression. Removing a form of expression from the public discourse is to make that discourse smaller. In other words, such a removal amounts to a curtailment.
I am glad that you brought up Malema. I for one have always recognised that I will just have to tolerate many of the things that Malema says. Many of the things he says are groundless or, at times, plain daft. But that is not to say that he does not have the right to say many of the things he utters. Be that as it may, section 16 (2) of the Constitution amounts to an internal limitation on the right to freedom of expression. And some of Malema’s utterances have smacked mightily of expression contemplated by section 16 (2). The same simply cannot be said of the Professor’s utterance. Thus it is not necessarily hypocritical to take special exception to the junk that has come out of Malema’s mouth often enough.
As regards the third issue, I do not think I have unjustly accused the presidency. And with respect, neither do I think that I misunderstood the purpose of the statement. The purpose of the statement was to take exception to the description of the president and to offer views about the way in which the presidency thinks (with no small measure of hypocrisy) that debates should be conducted. The reason as to why I think the statement is an example of cowardice is that if one reads the statement, one would think that the Professor had made no attempt to justify his decision to describe Zuma in that way. That was simply not the case. And I continue to think of it as cowardly to completely avoid considering the justification of the description in making the statement.
Mzo, I apologise.
The last three lines of my fifth paragraph should read:
‘Removing a form of expression from the public discourse is to make the right to freedom of expression smaller. In other words, such a removal amounts to a curtailment.’
Leigh
I guess we’ll have to agree to disagree. So long as you consider insults part of the desirable discourse, the two of us can never find common ground.
Similarly, I cannot see any corwardice when the Presidency tells Prof how the issues should be debated (whether it’s hypocritical to do so or not is a totally different issue) and leaves the actual debating of the relevant issue to the relevant department. Again I repeat, Min Radebe explained (OK, tried to) why they thought Adv Simelane was their man.
You (just like me) disagree with the “justifications” (if you can even call them that) by Min Radebe but that does not, in my view, ENTITLE you or anyone else to hail insults. That is my final take on this issue!!
Leigh, freedom of expression – like any other right – is not absolute. First, section 16 explicitly exclude the following speech from Constitutional protection: * propaganda for war; * incitement of imminent violence; or * advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Second, PEPUDA prohibits hate speech, which is defined as speech directed at a specific GROUP (race, sex, sexual orientation etc) and that can reasonably be said to have been intended to cause TO THAT GROUP harm. (So calling for the killing of homosexuals would constitute hate speech and would not be protected – if that provision of PEPUDA is constitutional, of course). Third, defamation law protects the dignity of individuals and one can sue someone for defamation if they had made a defamatory statement against you (by calling you a liar, say, or a rapist) in circumstances where the statement is not true or – even where it is true – it is not in the public interest to have it aired. It will be more difficult for a politician to sue successfully for defamation for the reasons posted above as it would almost always be in the public interest to publish defamatory but true statements about a politician. Where one expresses something not as a fact (X stole R100 000) but as an opinion about a politician (the politician is lazy or stupid or has acted like a gangster), I would suspect the politician will have difficulty to successfully sue for defamation as the speech would form part of normal democratic discourse and would not defame the politician because it would not be presented as fact.
The debate here, seems to me, to go back to another theme of this Blog, namely that there is a difference between what is ethically acceptable and what is lawful. In my view, insulting a politician and calling him or her names will almost always be lawful as it would form part of the democratic right of individuals to take part in vigorous debate about politicians and issues. But it might not always be ethically acceptable to call the President names. Given the fact that President Zuma was acquitted on rape charges, for example, I suspect most of us would think it unacceptable to say that the President has raped the constitution by doing X or Y or Z. In the same way POLITICIANS often act in ways which have not (yet) led to them being convicted in a court of law. But as citizens we have a right to say that a politician has behaved in an unacceptable manner and to make an ethical judgment about that politician for, say, consorting with a convicted crook. Ironically, many of the people who take exception to the President being called names on the basis that it is unethical, revert to the formalistic innocent until proven guilty mantra (and thus hide behind what the law says only) when some of us make ethical value judgments about that President. This, to me at least, seems like a double standard.
Professor, thank you very much for your detailed and considered response. And doubly thanks for clearly drawing a relevant and proper distinction.
As you make out, whether a communication is ethically acceptable is a different inquiry from whether it is lawful. That is, calling a politician an unflattering name may breach ethical standards – and I have not expressed an opinion on that score during this discussion. But the name-calling may very well be protected by the right to freedom of expression which of course would render the potentially unethical utterance lawful. In short, an utterance can at once be both unethical and lawful.
For the sake of clarity I would just say this: saying that insulting a politician will almost always be lawful is another lucid way of saying that the ambit of the right to freedom of expression is wide enough to protect at least some insults. I hope that my fellow participants will forgive me for being a little petty here– but like most of the human race, I am not completely free of vanity
Pierre De Vos says:
December 9, 2009 at 14:01 pm
“Ironically, many of the people who take exception to the President being called names on the basis that it is unethical, revert to the formalistic innocent until proven guilty mantra (and thus hide behind what the law says only) when some of us make ethical value judgments about that President. This, to me at least, seems like a double standard”.
I am not sure how name calling advances the debate or even strengthens the view that Simelane was and awful (even illegal) choice.
I plead guilty to double standards – if for example you had called Jackie Selebi a gangster, I probably would have agreed.
Whilst we are at insulting politicians, it seems as if at last Cope has realised that Lekota is not good for any organisation. He got divorced because of the brat Malema but it seems as if he has given birth to more brats in Cope Youth League who want him to resign.
History has a tendency of repeating itself.
Wait for another divorce.