As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It is not always easy to be principled and consistent, more so when one happens to be a politician in a constitutional democracy and one has to keep one’s core supporters happy while also fending off one’s enemies inside and outside the political party one belongs to. Most politicians cannot help but act in expedient and self-serving ways in order to advance their immediate interests and careers. In a well-functioning constitutional democracy this impulse is checked by ordinary voters who help to hold politicians accountable and force those politicians to pay at least lip-service to a set of core principles.
In a country like South Africa, there are far less pressure on politicians to act in a principled, honest and consistent manner.
Unlike Constitutional Court judges, who are constrained – at least to some degree – by the text of the Constitution and by the legal precedent established by a long line of judgments, politicians do not have to be consistent, particularly honest or principled. As long as they achieve their short term goals – which usually entails, on the one hand, avoiding humiliation and avoiding being exposed as charlatans or crooks and, on the other hand, advancing their careers to climb the greasy poll – they have a relatively free hand to say and do anything that the voting public will let them get away with.
Thus, a politician like Helen Zille could effortlessly lambast ANC leaders for launching a scathing and unwarranted personal attack on the judges of the Constitutional Court, only to launch a scathing and unwarranted personal attack on a judge of the Cape High Court a few months later. Those who support her party almost all staunchly defended her – regardless of the principles involved – just as many of those who defended Jacob Zuma during his legal troubles did so – regardless of the facts.
But sometimes even politicians get caught out and then the ensuing spectacle presents such a bizarre and macabre contrast between what the politician used to say and do and what he or she now says or does, that the politician runs the risk of completely losing any credibility – even with the very gullible voting public who might once have defended the politician regardless of the facts.
Recall that after Schabir Shaik was convicted of bribing Jacob Zuma and then President Thabo Mbeki removed Zuma as Deputy President of the country in anticipation of him being charged with fraud and corruption, Zuma skilfully exploited his image as a victim. Zuma subtly encouraged his supporters to defend him and to attack his “enemies”, especially Mbeki. This Cosatu, the SACP and the ANC Youth League and their supporters did with little care for the consequences of their actions or any appeal to reason or principle.
Thus Mbeki was vilified and branded as a snake, and ANC T-shirts with his face on it was burnt by Zuma supporters who claimed that they would die for their leader – no matter whether he was corrupt and no matter what he might or might not have done with that baby oil in that room with the young daughter of an old and dear comrade friend. Cosatu, the SACP and the ANC Youth League all rallied behind Zuma because they had the short term goal of getting rid of Mbeki to unite them.
Very few of these politicians paused to ask whether Zuma might not have a case to answer in court – given the fact that Shaik had already been convicted of bribing him. They did not ask whether Zuma would make a good President of the ANC and the country. They did not really explore questions about President Zuma’s values and never stopped to ask whether – as supposedly principled and progressive organisations – they should support a leader who seemed to be rather surprisingly patriarchal and conservative in his views.
One would therefore be excused if one had a bit of a schadenfreugasm – to use a phrase popularised by Jon Stewart’s Daily Show – about the events today outside Luthuli House. While ANC Youth League President Julius Malema was facing disciplinary charges inside ANC headquarters, outside some of his supporters were pelting police and journalists with bricks, burning ANC T-shirts with the image of President Jacob Zuma and chanting slogans about how they would kill for Malema. How ironic that ANC Secretary General Gwede Mantashe, who blindly supported Zuma, today issued a statement condemning the behaviour of ANC Youth League supporters, conveniently forgetting the behaviour of the crowds outside the court when Zuma was charged with rape and when he made appearances during his many court battles with the Scorpions
Of course, many reasons could be advanced for the embarrassing but not unfamiliar display outside ANC headquarters today: the fact that Malema’s message of nationalisation resonates with some unemployed youth, that Malema is a role model for people looking at his flashy success, that the ANC leadership had encouraged this populism with their own behaviour, as well as any number of other explanations could be offered. But as I am not a professional political analyst I am far from sure that anything I could say on this topic would be of much interest or would show any special insight.
The point I would like to make is perhaps more mundane. If we had lived in a more normal society – a society not haunted by the lingering ghosts of our apartheid past – the bizarre events of today, which harks back to the events that led up to the ANC’s Polokwane conference and then to the dropping of criminal charges against President Zuma, might not have happened. If we had lived in a better functioning constitutional democracy, one in which the gap between rich and poor were not so vast and so obscene and in which conspicuous consumption by those with old and new money alike were not celebrated and held up as the ideal, it might have been more likely that reason, debate and sober reflection – instead of illogical rage – would have dominated the public discourse.
If we had lived in a more normal society, reason and logic might have had a better chance of being the dominant mode of doing politics. In such a democracy, leaders and ordinary citizens would have been required to be far more rigorous in justifying their decisions and would have more quickly been called to account if they failed to justify their words and actions in a credible manner. Politicians would at least have had to pretend to have principles, intellectual prowess and integrity (although, granted, in the UK of “New Labour”, Tony Blair – who was very good at pretending – turned out to be a disastrous leader). Most voters would have been shamed into opposing leaders who so clearly did not have the best interest of the poor at heart and were possibly corrupt.
But today’s events remind us that we do not live in an ordinary or normal country. We live in a country where some people (politicians and the old business elite among them) eat sushi from the bodies of semi-naked models; are protected by bodyguards and high walls from the young men and women who have no money, no jobs and little to lose; a country where some people travel across the world in first class and throw lavish parties, while the majority of South Africans languish in poverty and do not have the life chances to make meaningful decisions about their own lives.
Railing against Julius Malema and his supporters and calling them thugs and rioters will not change this basic fact – just like railing against Jacob Zuma during his battle with Thabo Mbeki had little effect. Unless we do something to address this bizarre and immoral state of affairs so many of us often seem to take for granted, everything that Mr Malema and his supporters represent will not disappear. That is one reason I support a wealth tax and why those who rail against the idea – just like they rail against Malema and his supporters – do not seem to me to have the best interests of South Africa and all who live in it at heart.BACK TO TOP