Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
9 December 2009

Jonny Steinberg: A suspiciously speedy plunge to ignominy for Thabo Mbeki

Jonny Steinberg – A suspiciously speedy plunge to ignominy of ‘national ogre’

Jonny Steinberg
Published: 2009/12/09 06:30:29 AM in Biusiness Day

 A LITTLE more than a year after his departure, former president Thabo Mbeki has become SA’s national ogre. This newspaper has wondered out loud whether he ought to be put on trial, or hauled before a truth commission, if not to have him thrown in jail, then at least that we might get “a bite at understanding (his) madness”. Many ponder how the country went for nearly a decade with a president it did not deserve.

 This mood has descended with enormous haste. Only two years ago, on the eve of the African National Congress’s (ANC’s) conference in Polokwane, SA’s well-heeled classes were praying that Mbeki would win his bid for the ANC presidency. Mbeki stood for sanity, his defeat for the prospect of populist madness.

Such rapid mood swings are suspicious. Ogres are always manufactured in haste; we invest in them the things we find uncomfortable and upsetting, and hope that when the ogre is vanquished the bad will die with him. What has SA invested in Mbeki that it wishes to be buried and gone?

It is doubtful that history will be kind to Mbeki, but it might do him the favour of placing him in his rightful context. In hindsight, SA’s second democratically elected president was always going to face an uncomfortable task, not because he had to walk in the shadow of Nelson Mandela, but because he inherited a nation whose character and condition few had foreseen.

Reading through the policy papers the ANC wrote in the early 1990s is a melancholy experience. So many of SA’s ills were assumed to be ephemeral, mere symptoms of a polluted relationship between rulers and ruled. It was taken for granted that with apartheid gone, levels of violence in everyday life would decline, that prisons would become emptier, that people would embrace a police force now run with benign intention. The standard of education would obviously improve. Above all, it was assumed that there would be more work, that joblessness could not get worse once SA had a government truly invested in the wellbeing of its people.

Nobody expected that more than a third of SA’s newly enfranchised citizens would spend the first decade of democracy chronically unemployed. Or that of those who turned 10 in the year of SA’s freedom, only half would ever have worked a day in their lives by the time they turned 25.

South African culture is not equipped to adapt to such high levels of enforced idleness. People’s identities have always been shaped by their work, no matter how rudimentary, by their capacity to build a home, however meagre, by leaving a legacy, however slight.

Mbeki’s AIDS denialism is inseparable from this situation. He believed that SA had been delivered from apartheid into the clutches of a global apartheid, that Africans were getting sick and dying in vast numbers because the development of their economies was being stunted by the west. And the west, he said, had the audacity to declare Africans responsible for their own illness; they were dying because of their sexual appetites, because of their depravity, and they must be treated with the west’s drugs.

It wasn’t hard to see that Mbeki was ventriloquising, that he was despairing of his own people. He spoke of “those in our cities and towns who have … slid into a twilight world of drug and alcohol abuse, the continuous sexual and physical abuse of women and children, of purposeless wars fought with fists and boots, metal rods, knives and guns”.

He spoke of “a catastrophic loss of national identity and human dignity,” of men who had “lost all hope and self-worth”. These are strong words indeed.

Mbeki was hardly the only one to point a despairing finger of blame. What we have called “AIDS stigma” is, at least in part, an expression of anguish among ordinary people about the state of the political economy and what it has done to families. The classic object of AIDS stigma is a young woman who leaves home in her teens in search of work. Everyone knows that “work” might entail finding an older man off whom she will live, for she will not find a job and her elders resent feeding her. When she falls ill, all the anxiety about the life she has been living is expressed as blame: she is having a stranger’s children; the family lineage will die because everyone is having strangers’ children; the sex young people are having is poisoned and murderous.

These are the anxieties of an era in which sacred institutions such as family continuity are threatened by chronic unemployment. Mbeki reflected and intensified these anxieties; he followed rather than led.

Certainly, SA’s wealthy shared Mbeki’s fears. That is precisely why the establishment was so keen that he hold onto power at Polokwane. He was the one keeping the swirl of pain and discontent at bay. Jacob Zuma was the one who would bring the untamed populace to the Union Buildings.

How quickly this changed.

In an editorial marking Zuma’s 100th day in the Presidency, this newspaper remarked that “the country is more at peace with itself. It reminds us of one of Spain’s early democratic premiers … who, when asked after winning his first election … how he was going to change Spain, said: “I do not want Spain to change. I want it to relax.”

Whatever Zuma’s flaws, it was a relief to have a president who seemed to feel at ease with himself and comfortable among his people. And with that relief came great anger towards Mbeki. His visible disenchantment, his dark brooding, his sense that things were out of joint: had these ill feelings been unnecessary all along?

There are of course many other reasons to be angry with Mbeki. The gap between who he said he was and what he became is reason enough. He billed himself as a technocrat and mismanaged. He said he was a constitutionalist and abused his power of office. He disappointed on so many fronts.

 Yet I don’t think that these things alone explain why the establishment needed him so desperately one minute, and then hated him so violently the next. We have made him into an ogre, I think, because we wish that what has departed with him is a country ill at ease with itself. It is wishful thinking indeed.

  – Steinberg is a fellow at the Open Society Institute in New York

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