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
25 November 2009

Kill the beasts – but only if they are not cute

During the Ukweshwama ritual, a traditional Zulu ritual that usually takes place at the end of the harvest season, a group of young men kill a bull with their bare hands. According to Animal Rights Africa (ARA) the ritual is rather cruel. ARA provides an eye witness account which states that: 

For 40 minutes, dozens trampled the bellowing, groaning bull, wrenched its head around by the horns to try to break its neck, pulled its tongue out, stuffed sand in its mouth and even tried to tie its penis in a knot. Gleaming with sweat, they raised their arms in triumph and sang when the bull finally succumbed.

ARA has lodged an urgent application in the Pietermaritzburg High Court in an attempt to prevent that hardworking and frugal monarch, King Goodwill Zwelithini, as well as the Provincial government from conducting this ritual. ARA’s lawyer refused to provide me with a copy of its court papers, saying that the matter was “too sensitive”, but according to news reports, ARA will challenge the legality of the ritual on the basis that it contravenes the Animals Protection Act (71 of 1962). ARA will also rely on the right to dignity, the right to freedom of conscience and the right to an environment that is not harmful to a person’s health or well-being.

It is difficult to judge the constitutional law arguments presented by ARA as I have not seen its papers, but I would be rather surprised if any of these arguments fly. Our Bill of Rights contains a set of human rights protecting, well, the rights of HUMANS. Tough luck for the animals: us humans often kill and sometimes also eat animals because it is part of our culture.

There are of course good reasons why animals are not protected by the Bill of Rights. It would be impossible to decide which animal’s are to be protected (Do we protect only cute dogs and penguins – thus soothing our conscience – or do we also extend protection to scary snakes and disgusting cockroaches?) 

Culturally, we also accept the torturing, killing and eating of animals but if animals have rights we will not be able to torture, eat and kill them. We will have to stop using Doom to get rid of flies, mosquitoes and ticks and flees, will have to allow cockroaches to roam freely in our houses and in restaurants, will have to close down abattoirs and stop wearing leather belts and shoes, and what would Archbishop Tutu do if we ban the quintessential South African pastime, the braai? 

I suspect ARA will claim that the mistreatment of animals infringes not on the rights of animals, but on the rights of humans, as the ill treatment of animals affronts our dignity, our conscience and our well-being. We are all demeaned every time one of us is allowed to pull out the tongue of a bull (unless, perhaps, if it is a Blue Bull) or when we are allowed to tie its penis in a knot. 

I find this argument hypocritical and culturally arrogant – to say the least. In our culture we accept the need to mistreat, kill and even eat animals – at least some of the time. Thus, we allow for the killing of cockroaches, say, because we think they are dirty (think District 9) and spread germs. Culturally we do not condone the killing of dogs though, because although dogs are also dirty and smelly, they can also be cute and friendly, wag their tales when we call them and bark at or even bite intruders. (Surely stomping on a cockroach can inflict severe pain on that cockroach but ARA will never object to that because its part of their culture to stomp on cockroaches.) 

What ARA does not see is that our African culture allows for the Ukweshwama ritual, just like European culture allows for the extermination of cockroaches in Restaurants. ARA’s argument that culture does not come into this is therefore wrong. What the good folks at ARA cannot see is that our culture always mediates our treatment of animals and that their view of what constitutes cruelty to animals is based on a particular Western cultural experience.

In a process of “othering” the culture of those who are not like them (rural Zulu traditionalists) are attacked as cruel, while their own cultural commitments about the treatment of various animals (informed by Western notions of what is appropriate) are viewed as normal and not part of culture at all. For them, white people do not have culture – they just ARE – while “others” have culture that can be studied, criticised and outlawed.

Seeing that our Constitution guarantees for every person the right to enjoy their culture, I would imagine the constitutional arguments, rather than favouring the ARA application, instead supports the defenders of Ukweshwama.  

It is of course true that the Animals Protection Act prohibits anyone from ill-treating, neglecting, infuriating, torturing, maiming or cruelly beating, kicking, goading or terrifying any animal. The Act also prohibits anyone from “wantonly or unreasonably or negligently doing or omitting to do” anything that would cause “any unnecessary suffering to any animal”. But in as much as this Act fails to accommodate the cultural practices associated with Ukweshwama, the Act might very well be unconstitutional.

If I were King Goodwill and the KwaZulu-Natal government I would confront the ARA application with a claim that the sections of the Animals Protection Act are in contravention of section 31 of the Constitution and that far from supporting the ARA application, the Bill of Rights actually support the cultural p[practice now being attacked by a group of snooty, out of touch, hypocrites who cannot see how their own views on Ukweshwama is based on a disdain for the culture of others and an unquestioning and uncritical acceptance of their own culture. 

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