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’s the same impulse that turned President Mbeki into an Aids denialist. To admit to the reality that Aids was a huge problem was to admit to the reality that many South Africans had a lot of sex with a lot of people. This would be difficult to admit if you were a bit sex-phobic and actually thought that the stereotype of voracious black sexuality was a bad thing.
In any case Steinberg concludes:
During the apartheid years, the liberation movement fashioned an image of the South African masses as inherently dignified, rising above their circumstances to throw off the shackles of oppression. Sure, there were pathologies, but nothing that couldn’t be fixed by civilised public policy, nothing that couldn’t be mended by the acquisition of power. If the cream of SA’s activists and exiles had been canvassed in April 1994, I doubt whether any would have questioned the proposition that crime would slowly decrease, our overflowing jails begin to empty, our people find a good deal more peace and equanimity in the texture of everyday life.
Instead, governance has been hard, hard, hard, SA’s pathologies so frustratingly stubborn. I think that under President Thabo Mbeki our government has begun to feel that the nation it inherited is dispiritingly and congenitally ordinary. Under Mbeki, a government has fallen out of love with its people, perhaps even feels shunned and betrayed by them.
And so it becomes too difficult for leaders to call a press conference and declare that they share our pain because the pain itself inspires too much shame. They cannot tell us that they will do their best to bring this and that crime down, because they have become convinced that their best isn’t good enough. Nothing is.
I think that our government is in a moment of depression. I think it is denying its depression. It needs to snap out of it. It needs to govern.