Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
21 November 2008

ANC, know our Constitution I: articles 16 and 17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2015 Constitutionally Speaking | website created by Idea in a Forest