The debate that is now raging about the publication of a Zapiro cartoon – which depicts Mr Jacob Zuma on the verge of raping a woman representing the justice system while his allies hold her down – is potentially a healthy manifestation of democracy in action. The more we talk and debate and argue about controversial matters and the more we get to focus on important issues regarding the independence of the judiciary and the role of politicians in endangering our democracy, the better.
Unfortunately, much of the debate has not focused on the issue which Zapiro meant to highlight – namely how Mr Zuma and his allies are prepared to abuse the justice system for short term political gain. Instead, most people have commented on the wisdom of using the rape metaphor to make the point.
Some have lambasted Zapiro for his “disgusting cartoon” that “borders on defamation” and have argued that it infringes on the dignity or privacy of Zuma and Gwede Mantashe. Others have cheered him on while attacking those who have criticised Zapiro as enemies of freedom of expression.
I was again forcefully struck by one aspect of this debate that I find troubling. Both on this Blog and elsewhere people seem to confuse and conflate the constitutional issues around freedom of expression and the right to privacy and dignity on the one hand, with a broader political/ethical question of whether a cartoonist should use a rape metaphor in his work on the other.
For me this is part of a dangerous constitutionalisation of politics, which allow people to skirt the very real, and difficult political and ethical issues of our time in favour of constitutional sloganeering. Unfortunately this tendency is not limited to one group alone. We all seem to hide behind constitutional slogans when it is too difficult, embarrassing or complex to engage meaningfully with an issue.
Thus, if one criticises Zapiro one is suddenly an enemy of free speech – even if one has never suggested that he should be censored or that the Sunday Times should apologise for publishing the cartoon. If one points out that Jacob Zuma is a morally flawed character, one is suddenly blamed for infringing on his right to be presumed innocent until proven guilty and on his dignity and his privacy. Because rights are often seen as trumps – and thus as a way to stop the political debate by appealing to a higher kind of principle – this hiding behind rights is dangerous for open and robust debate.
I am not saying that rights are not important or that a concern for human rights should not form part of the political discourse. On the contrary, a human rights sensibility should inform every discussion of politics. But South Africans seem to have a tendency to shy away from moral ambivalence and from acknowledging and confronting the complexities of living in South Africa by shouting out human rights slogans to stop any argument.
It is much easier to shout down an opponent with constitutional soundbites than to actually engage with the issues – which are often more complex and less obvious than we want to admit. For example, because it is too complex, difficult or uncomfortable to talk about racism, sexism and homophobia, we far too easily fall back on tired old assertions of hate speech.
And because it is too embarrassing or politically uncomfortable to have to deal with the fact that Mr Zuma took more than a million Rand from a convicted fraudster and then did some favours for him, and that he lied to Parliament about this, some of us prefer to shout from the rooftops about unfair trials and the dignity and privacy of our beloved leader.
For the same reason, some comments on this Blog have suggested that I am a depraved ANC lackey who is the enemy of press freedom because I asked some questions about the wisdom of the rape cartoon, instead of engaging in a meaningful and thoughtful way with the questions I posed.
This kind of discourse seems like an ethically lazy and dangerous one, because it allows individuals to skirt the real issues in favour of manufactured issues around the Bill of Rights. It is dangerous because it cheapens real concern for human rights and uses human rights language as a way to hide from taking responsibility for our actions and beliefs.
Excellent post, Pierre.
You are so right. The same people who were shouting that they would “kill for Zuma” are now shouting about abuse of freedom of the press and freedom of speech. And just for good measure, the race card gets thrown in.
Anybody who is not prepared to engage in a discourse on sensitive issues throws in “rights” and “racism” as a means of changing the scent. And because we are all so concerned about being perceived to be trampling on the “rights” of others, we back away from those potentially volatile situations.
And isn’t it amazing how the same rights only appear to apply to certain people?
Prof great article indeed
but you need to take into account the competing interests, those of the individual and those of the state(public generally), legally speaking i think there is a justifiable cause for limiting their fundamental rights (s 36), before they can invoke right to dignity they need to consult the criterion enumerated by the aforesaid section.
Pierre, you make a very valid point. I’m curious whether you would you agree that it is the same worrisome tendency that underlies the hysteria with which Zuma’s impact on South Africa is generally described, and in particular the oft-repeated threat to the independence of the judiciary that gave rise to the cartoon in the first place?
Do you agree that we would have less of a constitutional crisis in the making if we simply condemned individual instances of threats, disruption and isolated incidents of violence when they occur instead of using abstract terminology of judical indendence and the rule of law?
My objection to the comic is that it hugely exaggerates the impact that the Zuma camp by themselves are having on the integrity of our justice system. There is a constitutional crisis on the horizon, no doubt, but those of us who equate the actions and motives of Zuma and his supporters to those of gang-rapists – thereby feeding into the sense of impending doom and fear – that bear some of the responsibilty for it.
Pierre, you may be a little over-sensitive. Please don’t change. I think you are a really sweet guy.
Pierre, your points are well-taken. But I would take a step further. The pattern you very well describe – the indiscriminate invoking of rights as “trumps” in political discourse – is, I think, associated with the triumph of vulgar horizontalism in our constitutional jurisprudence. This is not a tendency I have known you to criticize in the past.
In principle, of course, a “private” actor may sometimes be said to threaten free speech. But, in general, we all understand that there is a qualitative difference between the threat to expression that comes from the government censor, on the one hand, and the newspaper editor on the other. That is why for Bullard to claim that his free expression rights were violated when the ST fired him was nonsensical. Likewise, for people to treat your reservations about Zapiro’s cartoon as somehow implicating his free speech rights is just to miss the point.
As for cartoon itself, hyperbole is the tool of the cartoonist’s trade. My objection to the drawing is just that it is in terribly poor taste. But then again, subtle wit and wry understatement have never been Zap’s hallmark.
Karla, would it not be artificial to treat the current attacks on the judiciary as isolated or individual instances? People have always criticised judges for decisions with which they disagreed. But the attacks we have heard in recent months have been concerted, and apparently directed at a very particular goal. If one believes that the harsh critics of the judiciary occupy a uniquely powerful political position right now, such that one can imagine that judges actually feel immense pressure, why not call it a constitutional crisis?
MO-
care to define “vulgar horizontalism”? I’d hate to just assume that this is some elitist opinion.
And what exactly is wrong with using a “trump” in an argument? Are you trying to say that it doesn’t apply, or that a “trump” should only be used as a last resort, or that they can be overused (can a basic right ever be overused?)
From a distance (the US) it sure looks like a constitutional crisis in the making.
PM
@Michael Osborne, the reason why it’s called a constitutional crisis, is because the fundamental principles of our Constitution is under threat if an individual gets allowed to hold those principles ransom for a favourable outcome, see posts under the “constitution”.
Any way, very good point Klara and Clara. I agree that the impact of the JZ camp on the judiciary must not be over exaggerated, the judiciary will prove how solid it’s foundantions are.
Karla // Sep 9, 2008 at 5:00 pm
………………………………………………..
Great post Pierre once again…
I would like to merely raise my objection to your first sentence of your last paragraph. In this regard I refer you to Michael Osborne // Sep 9, 2008 at 9:43 pm who has put it in more than a concincing way. I must, however, re-iterate his use of the word “concerted”.
If we were to ignore the effect that these concerted attacks have on the independence of the judiciary, then we would be acting in concert with the pepertrators. Remember this is what we said when Zuma failed to distance himself from Malema’s statements when Malema shouted the “Kill for Zuma” theme for the first time shortly before Zuma took the platform.
Given our past, the independence of the judiciary is our hope for making sure that there is a continued existence of the very important “checks and balances” on the Executive. If this were not to be the case, we would cease to live in a country where there is a Rule of Law and this wold be replaced by Rule by Law.
Thanks all for greying that which people want to simplify into a right or wrong.
Thanks Michael for just highlighting the governmental vs non-governmental censorship issue in the context of the free speech debate. I’d like to hear more from our legal experts.
I would say that the cartoon would have been an exaggeration if it were some gang member on trial and the gang making threats to judges. That might be considered isolated or individual.
But we have here the leader of the largest political party set to become the next president, whose allies from organisations which are political, civil and of military nature are calling on the judiciary to drop the case against him.
We have a case where MK veterans uttered threats and marched in numbers on the court in full uniform and where their leader led then in song singing “bring me my machine gun” and where Malema publicly attacked the president.
We shouldn’t become desensitized to the implications of what is happening just because it’s been oft repeated and because no violence has happened yet. This I think was Zapiro’s point. I remain ambivalent about the manner in which he did it.
Good post and looking forward to the other contributions.
Brilliant article, highlighting a very real problem. Not every political and moral problem is a human rights problem. Despite the tendency of lawyers to want to cast every issue in legal terms, not every issue is a legal issue.
I’m no lawyer, constitutional or otherwise, nor do I consider myself an apologist for JZ and his supporters.
I express my opinion without seeking to influence the opinion of others and I ask others to accept it as such -
JZ’s legal manoeuvrings and the political manoeuvrings of his supporters are, through the media, well known to the public at large .
Zapiro’s cartoon is, therefore, not contributing any new matter to the constitutional debate, although it does represent his “take”, as a cartoonist, on the threats by JZ ‘s supporters against the constitution and its institutions.
I acknowledge, however, his serious intent, and, as Michael has commented, hyperbole is the stock-in-trade of the political cartoonist.
In my opinion, however, the cartoon is in extremely poor taste.
More importantly, I am extremely uncomfortable, as a human being, that JZ, or his principal protaganists, or any other public figures, should be depicted, even metaphorically, as rapists and accessories/accomplices to rape, a crime which is totally abhorrent to all civilised people.
I believe that civilised discourse should operate on a higher level than that represented by Zapiro’s cartoon, much as I continue to admire his talent and political insight.
Maurice // Sep 10, 2008 at 9:54 am
“I believe that civilised discourse should operate on a higher level than that represented by Zapiro’s cartoon, much as I continue to admire his talent and political insight.”
……………………………………………………………………………………..
Ideally that is exactly what should be happening. However, given the manner in which these concerted attacks on the judiciary have occured, it stands very controverted that they are part of a civilised discourse. I do not propose herein that “two wrongs make it right” but we should understand the obvious truth that the stage of the “discourse” has reached such levels extreme measures must be adopted to avert the imminent threat to one of the most important institutions in the history of any democratic nation, the independence of the judiciary.
The judicial independence threats out there are carrying a sharp sword which they use effectively and they have public forums to efficiently propel their attacks and to gather more support in their joint efforts to undermine the independence of the judiciary. We should stop being apologetic in our efforts to protect the independence of our courts and other forums which are aimed at the protection of our rights.
Lastly, I applaud Zapiro for having the courage to tell it like he sees it. What I can concede about the manner in which he has told it is that it was very effective. It was so effective that it has led to a civilised discourse.
One would have to be immensely naive to think that our judiciary is not under threat. We will not even go into the fact that there is a colossal backlog and a frightening number of cases land up in file 13(purposefully or otherwise)! The truth is that whether we like it or not, drunken judges, drunken corrupt cops, police chiefs with (alleged) organized crime connections, corrupt politicians, incompetent council members that waste/steal our country’s money with no repercussions, are a threat to our judiciary system.
The threat to our judiciary system is not just about what JZ and the ANC are trying to do with his fraud case nor what happened with his rape trial but also the system’s and its members obvious inability or unwillingness to prosecute high profile criminals and their cronies. Zapiro’s cartoon hits the nail on the head. Don’t make the mistake of underestimating the impact that the Zuma saga will have and is having on the integrity of our justice system. Worldwide people that matter are waiting to see if SA has the ability to miss the iceberg that has sunk all other African law systems and prosecute a high profile leader who has very questionable moral and ethical fibre, without being commandeered by the ruling party. In SA everyone is waiting to see if there will still be a system they can respect and count on to do the right thing by protecting law-abiding citizens and jail those that deserve it. This is the defining moment in SA’s justice system. It’s integrity; impartiality and effectiveness will be determined by what happens with Zuma’s case. To bleat about JZ’s dignity and privacy is laughable. This is a man that has questionable dealings with a convicted fraudster, had a farce of rape case against him, uses public forums to emulate the machine-gunning of all his opponents and endorses his supporters’ threats of anarchy and murder by not condemning them. It is a shocking situation and if people find Zapiro’s cartoon shocking then he has got it right and people must stop with niceties and evasive looks and face the reality that this is what will decide if SA has a civilized and legitimate democracy or is on the road to becoming another dysfunctional totalitarian state.
PM, by “vulgar horizontalism,” I mean the view that all constitutional rights may be invoked against both state and non-state actors. Aside from the free speech instances I cited, I consider the refrain of defenders of political figures they insist are “innocent until proven guilty.” But the right to be presumed innocent is a very specific right that may be invoked only by defendants when charged criminally by the state. It is certainly not a right that applies when a private citizen accuses a public figure of bad conduct.
As to using rights as trumps in political discourse, I point to Pierre’s lucid exposition in the original post in this thread; I think he meant something like what I suggest above.
Sne // Sep 10, 2008 at 10:15 am
Thank you for your courteous response.
You make the valid point that matters have reached a critical point.
You concede, however, and, in my opinion, correctly, that “two wrongs don’t make a right”, an important point to remember in these turbulent times when opponents may be sorely tempted to resort to tactics similar, but different, to the reprehensible tactics employed by Messrs. Vavi, Mantashe,Malema et al.
Whither constitutionalism then … ?
Maurice // Sep 10, 2008 at 10:53 am
Whither constitutionalism then … ?
………………………………………………………
I understand that the chief reason you may have left the sentence as it is was to allow me to respond in an unlimited way guided of course by the context of this discourse. However, I would like you to restrict your question to allow me to focus on the specifics and thereby address your concerns to the best of my ability and hopefully to your satisfaction.
Maurice // Sep 10, 2008 at 10:53 am
………………………………………………………..
Oh, it is my absolute pleasure and thanks to you too for keeping the discourse moving forward. Looking forward to your response to my post above.
The one thing that we all forget is that no rape has taken place in the cartoon, it is supposedly about to happen. Therefore Zapiro is warning of something that could happen if Zuma and his cronies carry on the way they are!
AB // Sep 10, 2008 at 12:02 pm
………………………………………………..
Regardless of the manner in which you look at that cartoon you will see involment of rape whether it is potential, actual, intended, unintended, significant, insignificant, etc.
Can you tell me what is contained in that cartoon and exclude the word rape and words with corresponding meanings?
Seen from this angle, your argument that no rape is taking place becomes superfluous. It has no bearing on the argument for and against Zapiro’s use of rape to opine that Zuma and his cronies are violating the independence of the judiciary.
AB, the truth is that they are attempting to violate, abuse, rape the justice system. This possibility is imminent and a real threat to our future. If they believe in due process and as they so vehemently claim, he is the lily-white innocent leader that is merely the victim of a ‘plot’, ‘smear’, whatever, then why do they not let him “have his day in court”?? By being so desperate to suppress evidence, threaten violence and mayhem and doing everything to stay out of court they are telling us a couple of things: 1. He is guilty 2. They could not give a damn about the law and think they are in-fact above it. 3. Don’t see what he (allegedly) has done as a criminal act and condone it (maybe in the hope they will get their turn to ‘put their hands in the cookie jar. 4. Think that being in a position of political power gives them the right to manipulate and do as they please. Very Bob Mugabeish!!
They are appointed by the people for the people. Something that they seem to forget the moment they step into a position of authority. Not the law, not the land and most certainly not the people of SA are theirs to rape. So some words that do not imply rape as you request that could be used to tell you what is depicted in the cartoon: manipulate? Commandeer? Hijack? Threaten? Hold to ransom? Abduct? …the law. Happier? Get real, this is not a time for kid gloves and politically correct rhetoric! It will be rape in every despicable meaning of the word and let me assure you we will suffer its appalling and tragic consequences!
Sne // Sep 10, 2008 at 11:49 am
Apologies, only able to respond now.
My point was not an earth-shattering one, merely that , in my opinion, worthwhile principles, such as the independence of the judiciary, deserve to be upheld in a dignified manner, contrary the manner the manner in which Vavi & Co have set about undermining such principles.
I wasn’t opening a debate, but thank you for your response.
Sorry AB, the post was infact by Sne! My apologies.
PM
I gathered that, no probs!
Sne
The use of potential rape as a symbol serves as a strong wake-up call to all those blind followers of the Zuma clan as well as the normal people out there not appreciating the seriousness of the situation.
Now they are even calling Ms Justice white? Please man, I think this cartoon has achieved its aim by alerting all to the serious threat posed by politicians to our liberty and the future of our democracy.
As AB mentioned the rape has not yet taken place, only the preparations made.
Zuma, as depicted in the cartoon, still holds the power to change the course of these events and his supporters are supporting him. He can call them off and maybe there is some intention of the message being directed at him.
For a thought-provoking take on the topic by Xolela Mangcu, go to:
http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A840955
AB // Sep 10, 2008 at 3:11 pm
………………………………………………
Its my pleasure man. Anyway, we agree in respect of the intention behind the cartoon that it was a wake up call. Have a great day.
Maurice // Sep 11, 2008 at 8:04 am
………………………………………………………
Thank you very much ma’am for that link. I followed it and this is the only thing I can say about it:
Xolelwa Mangcu, the article’s author, just like everyone in South Africa, has a right to inteprete the cartoon in any manner she deems fit and just for her. Secondly, she has a right to make an opinion based on her intepretation of the cartoon.
What is very fortunate about this cartoon is that Zapiro did not provide any intepretation thereof. He just made a drawing which the public is entitled to inteprete, make opinions about, share those views, etc.
Those adverse inferrences that Xolelwa Mangcu allude to are merely a product of her intepretation of the cartoon and not what Zapiro is saying or intended to say. Based on my intepretation of the cartoon I would say that Zapiro is right to say that he indeed was not referring to Zuma’s trial in that cartoon.
Pertaining to journalists writing what they think, contextually, about polititians I only have this to say. Devoid of providing journalists with too much power, it suffices to point out the even the court in Bogoshi v National Media Ltd recognised the role the media plays in defending the democracy that so many people sacrifised their lives and those of their families for. It would be against this recognition if we were to tip-toe around polititians under the guise of fear of debasing them. Polititians must accept that they are subject to more public scrutiny and criticism than ordinary citizens. This, however, does not detract from the obvious fact that they are entitled to have their dignity respected.
Pertaining to journalists being trained to maintain the balance I have stated above, then that is an internal matter which the authorities and universities involved in training and regulating journalists should deal with.
In viewing that cartoon from a race point of view, people always fail or omit to have reference to Zapiro’s role in the struggle against Apartheid. I am not sure as to whether that is a matter of convenience or neglegence but they always forget to mention that. Secondly, in pulling the race card people tend to fail to notice the race of the people who are engaging in the potentian raping of the indepedence of the judiciary. If you were to take a closer look at the race of the people who are involved in making the independence of the judiciary an endangered, and at worst an extinct, species, you will realise that the cartoon had nothing to do with racism.
It was and remains a concise, precise, eloquent, etc. description of the effect of the conduct of the leaders in the cartoon which is calculated to undermine the independence of the judiciary.
I will not comment on the statement yesterday by Malema who threatened to “crush” anyone who stands in the way of Zuma being the President of the country next year. As to what that means, I do not want to go there…
Sne
100% This is a potetial rape situation, it has not happened, why does, even our learned friends, shout rape, its beyond me!
Z – “Zuma, as depicted in the cartoon, still holds the power to change the course of these events and his supporters are supporting him.” … I agree, but will he? And will his so-called followers listen? In the light of the past two days’ happenings, esp in KwaZulu Natal, I don’t think so. Already we are seeing and hearing subtle threats to the justice system and the judge involved – “He looks like Van der Merwe, a sober man that will find in favour of Zuma, but …”
Mouse
There are a few lawyers in the friendsofjz crowd who have spent a lot of time marketing their possible defense points for the Zuma trial, and have done so quite passionately. Thus the common belief among them that the NPA “HAS NO CASE”. A simple objective read through the indictment actually available on the friendsofjz site, will show that he has enough explaining to do that it should be in court.
Many of these people honestly belief that there is no real case against him. And though I might agree that some of the “conspiracy against him” points look interesting, it does not detract from the evidence and possible interpretations thereof as presented by the NPA.
In regards to the political implications there is a lot of good points made in the following editorial from the times (whatever your opinion of the editor):
“What the ANC wants is agreement among South Africans that Zuma is destined to be president — and it would be unseemly for him to be facing trial while in office.
They are right: it would be unseemly for a sitting president to face
trial.
But that is why they ought not to have selected someone with so large a cloud hanging over him.”
www DOT thetimes DOT co DOT za/News/Article.aspx?id=836052
[...] to one’s own? Pierre De Vos may think the talking heads of this country spend too much time constitutionalising politics, but when protest organisers such as Mr. Ngobeni, voice there intent to murder other citizens for [...]
Z – I, of course agree wholeheartedly. JZ should never have been elected, they should’ve opted for a compromise candidate. What is scary though, is that guys like Mathews Phosa, someone that has earned respect (at least in my court – before he became Premier of Mpu, and so forth) as a lawyer who knows what the law is about, have since Polokwane jumped on the bandwagon of trashing the CC and the constitutio-legal system, and that just to let a Nincompoop like JZ rule a country, heading straight for a fall if this Circus is allowed to continue.
ALL
ATTENTION. TO THOSE WHO DOUBTED, THE MAN HAS PROVED EVERYBODY WRONG. A DEAL HAS BEEN AGREED TO IN ZIM!!! KHOSI I RESPECTFULLY BUDGE AND SAY YOU WERE RIGHT ALL ALONG…..
VIVA TM VIVA!!!
http://www.news24.com/News24/Africa/Zimbabwe/0,,2-11-1662_2392216,00.html
Mqo
Could this just be the greatest event since 1994? Irrelevant what the terms of the deal are as long as our neighbours are at peace with each other.
Mqo et AB – I sincerely hope this could be the greatest event since the early 1990′s when Madiba was freed and we got to have democtatic elections for the first time ever – but don’t you think its much too soon to cry “Viva TM Viva!”? There is still this divide between the JZ and TM factions in the land’s largest political party, which spells PROBLEMS – Malema et al recently cried that it was TM and his apartheid brothers that unleashed violence against protesters in KwaZulu Natal. While I would welcome any stability and peace (and economic prosperity) in Zim – we still have an internal crisis on hand, which I pray we get through unscathed.
Anon
Agreed but its the first sensible thing to happen in Southern Africa for a while!
Mouse
Phosa is a mystery to me, I would like to give him the benfit of the doubt, but that’s difficult now. Do you know he wrote an Afrikaans poetry book? Found it in a library.
Z – Yes I know – I have actually met the guy personally a few times, not only in court, and we’ve always had very friendly conversations – at his insistance, always in Afrikaans. His recent attitude towards the judiciary however astounds me, and one wonders whether he doesn’t have his eye on a much higher post in government – would be a pity though should he trade his usual level head for the perks of the gravy train.