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.
Former President Thabo Mbeki used to be fond of lambasting his critics for their failure to grasp the “objective reality” about any number of important issues. He would perceptively highlight and analyse the ways in which objectionable master narratives influence the way we perceive reality before claiming to be free from the grip of such narratives and thus (unlike us mere mortals) to have full access to the “objective reality” the rest of us just could not see – usually in an attempt to defend the indefensible actions of his government or himself.
Thus he would write a brilliant analysis of the ways in which a kind of Afro-pessimism and racism influenced the discourse in South Africa on crime and corruption, and how such discourses reflected the fears and prejudices of “some among us”, before abusing this insight to make completely laughable claims to defend himself and his government from the valid criticism leveled against it.
He would point out, correctly in my view, that fears about crime was entwined with some people’s fears about a black run government and that perceptions about crime could not be divorced from perceptions about the so called criminality of black men. When many white people spoke about crime this was a way for them to express their racism and fears about black people in a more “acceptable” manner. But then he would go on a tangent and claim that crime was not really a problem at all in our country and that complaints about crime itself was just a matter of perception not linked to any “objective reality”: who would ever be robbed walking to the SABC studios he once mocked, just a few days before a journalist from CNN and his wife were robbed at gunpoint outside the SABC studios in Auckland Park!
He would point out, once again correctly in my view, that negative, deeply embedded, but often unspoken assumptions about Africa and how Africans are “naturally” corrupt clouded the vision of “some among us” about the prevalence of corruption in South Africa. But then he would rail against the “fishers of corrupt men” in the media and deny that there was a corruption problem in South Africa at all. After all, the “objective reality” according to Thabo Mbeki was that there was no arms deal corruption, that municipal officials (all disciplined cadres of the ANC) almost never stole public funds, that officials of the Department of Home Affairs were almost all imbued with the spirit of Batho Pele.
He also pointed out, correctly in my view, that Pharmaceutical companies are often unethical and exploitative and care more about profits than about the health of people in poor nations. But then he would madly veer off into cloud kookoo land and question the link between HIV and AIDS (“A virus cannot cause a syndrome”, “HIV is a CIA plot”) to try and justify the decisions of the government not to provide HIV positive mothers with the medicine required to save their babies from HIV (in other words, a decision to let those babies die).
Now our former President is back to his old ways. In an interview with the Sunday Independent he rails against the Nicholson judgment and points out (correctly in my view) that Nicholson did not base his judgment on proven facts according to appropriate the rules of evidence:
Mbeki explained his understanding of the meaning of Nicholson’s judgment. He felt that Nicholson “really sought to impugn our integrity”, and presented Mbeki and his cabinet as “dishonest people” who “for whatever reason want to intervene in ways that are illegal and unconstitutional”.
He said he, like his cabinet colleagues, took the oath of office seriously and the oath was, for him, not just a formality. “For somebody to pop up from somewhere with absolutely no basis … to come to a conclusion that these are bad people, dishonest people, acted in violation of their oath, this and that and the other; that was bad,” he said.
Well, although Nicholson clearly got it wrong by basing his decision on very flimsy evidence, this does not demonstrate that Mbeki and members of his cabinet did not act dishonestly. We all know that Mbeki and his Minister of Justice had a rather peculiar idea about the independence of the National Prosecuting Authority (NPA) and that they tried to interfere with his work in order to stop the arrest of Jackie Selebi, that an unlawful order was given by his Minister to Vusi Pikoli not to arrest Selebi, that Pikoli was suspended because he refused to be intimidated by the President.
We all know that the Minister in the Presidency (old Essops Fables) shamelessly intimidated members of Parliament to try and stop them from launching a proper investigation into the arms deal because we have read Andrew Feinstein’s first hand account of this intimidation. (If there was nothing to hide, why go to such extraordinary lengths to hide that nothing?) We all know that former President Mandela was humiliated and ridiculed by Mbeki cabinet members because he dared to speak up about Mbeki’s HIV and AIDS folly. We all know that there was arms deal corruption (some of it even leading to prosecution). We all know that Shaik and Zuma were investigated while others in the ANC and in government, who were not threatening Mbeki’s political position (like Zuma was), and who clearly had much to explain, were left alone.
Some will say: well we do not know this at all because it was never proven in a court of law. Bring the evidence! Until you have satisfied US that we are indeed crooks, we are not crooks! Prove it! Well, a court has never found that the apartheid state supported hit squads and at the time the government denied involvement in such hits squads and also demanded from those who pointed to all the available evidence to “bring the evidence” while at the same time doing everything in its power to discredit those with inside information and personal experience of such nefarious activities. Sometimes the truth does not wait for a court of law.
Often a body of evidence – both circumstantial evidence and hard evidence – emerges over time. Even where someone is not prosecuted, any reasonably well-informed person will be justified to make conclusions based on that evidence. For example, no one was ever prosecuted in the United States for fabricating evidence of weapons of mass destruction in Iraq and for deceiving the public about the reasons for going into Iraq. But there is such a wealth of evidence supporting the fact of fabrication that only a few die-hard George Bush supporters will now claim that Bush and his cronies were not thoroughly rotten and dishonest about the reasons for going to war with Iraq (and much else besides).
The same is the case surrounding the arms deal, corruption and political interference in decisions to investigate and prosecute (or NOT to investigate and prosecute) some well-connected ANC types for arms deal and other forms of corruption. It might not form part of the “objective reality” in which President Thabo Mbeki lives, but it does not mean that it is not so.BACK TO TOP