Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
9 March 2010

Moral code? Nah, let’s rather get rich quick and oppress women and gays

It is, to say the least, rather ironic that President Jacob Zuma has called for a national debate on the “issue of a national moral code” around the same time that it emerged that he himself was flouting the law, that his Minister of Arts and Culture holds hateful views about gay men and lesbians, and that Julius Malema has enriched himself at the expense of the poor and has failed to pay any taxes on his ill-gotten gains.

Now that is what I call chutzpah! Unfortunately, the President’s recent actions and utterances as well as his resolute silence about flagrant unethical behavior by members of his own party and his government, suggest that this chutzpah is born out of ignorance, bigotry and a lack of an own, constitutionally acceptable, ethical compass.

Making the proposal, our President said that using one’s own culture to judge others is unconstitutional. According to Zuma:

Each one of us must be respected. That’s what our Constitution says. No matter how you feel — some of us have very strong feelings about some of the things — we respect the Constitution, no matter how we feel…. We cannot be expected, all the time, to be respectful to others when others are not respectful to us and others.

The President is wrong on so many counts, spectacularly and ignorantly so.

It is nonsense to say that it is unconstitutional to use one’s own culture to judge others. What kind of fascist mind-set is that? The Constitution guarantees for everyone the right to freedom of thought and opinion. In our personal capacities we have a constitutional right to use our own cultural, religious or ethical beliefs to judge others, and we all do – all the time.

If one happens to be a Catholic, say, or an African traditionalist, and holds homophobic and bigoted views about gay men and lesbians, one is free to hold such opinions and to express them – as long as it does not amount to hate speech. If one is a feminist and one happens to believe polygamy is a sexist and patriarchal institution designed by lecherous and immoral old men to enforce the sexual and economic exploitation of women, one is equally free to hold and express such opinions within the limits of the hate speech laws.

For example, we have no constitutional duty to respect the values, beliefs and practices of pedophiles, rapists, murderers, racists, sexists or thieves.

Moreover, the President cannot hide behind the Constitution to avoid criticism of his own beliefs and actions which many people believe to be exploitative and immoral and lacking in honesty and integrity. Of course, depending on one’s own ideological, religious, moral or ethical views one may agree or disagree with this belief, but everyone has a constitutional right to hold and express their views on the moral probity of the President. A moral code that precludes us from either supporting or opposing the President’s private and public statements and actions will directly conflict with the rights in the Constitution and could therefore not be of any use to the President.

In a heterogenous society like ours with its many different cultures and beliefs, it would of course be prudent to strive to understand and respect the beliefs and cultural practices of others in as much as those beliefs and practices do not conflict with the values enshrined in our Constitution. But some beliefs and practices (like the President’s polygamous lifestyle based on sexism and patriarchy or Minister Lulu Xingwana homophobic hatred of black lesbians) would harm others and would perpetrate more hatred and prejudice against women and against gay men and lesbians and it would thus be unethical (but not unconstitutional) to harbor or express such prejudices in a personal capacity.

What our President does not seem to understand is that some beliefs and practices – whether inspired by our cultural and religious views or our own sense of morality – are themselves inimical to a constitutional state based on the values of human dignity, equality and freedom and as such we have an ethical duty to reject them. The government of the day also has a constitutional duty to protect people from such practices (although the beliefs on which they are based are usually beyond the reach of censure) through legislation and law reform by passing hate crimes laws and by outlawing cultural and religious practices that subjugate women, say, or endorse societal prejudice against gay men and lesbians.

The President and cabinet members – who have a duty to uphold the Constitution and the law – do not only have an ethical but also a legal obligation to reject such harmful beliefs and practices or at least not to endorse them in public. This is something dear Minister Lulu has failed to grasp. Thus she objected to works of art that portrayed black women in intimate situations because it “stereotyped black women” and refused to open an art exhibition where these works were displayed.

By saying this, the Minister revealed how immoral she herself is and how she has failed to uphold the values enshrined in the Constitution. If she believes that depictions of black women in intimate poses stereotype black women, she must obviously believe that it is a bad thing for black women to be intimate with one another. If she was not a homophobic bigot, she would have celebrated those works of art as affirming the life experiences, with all its complexities, of black lesbians. Instead, she revealed just how immoral she was by endorsing hatred and prejudice against black lesbians, the very attitudes which have led to the murdering of many black lesbians in South Africa over the past few years.

President Jacob Zuma’s moral code is a non-starter if it does not take the Constitution as its starting point. But as Zuma is not a great fan of the law or the Constitution – unless he can use it to escape prosecution for bribery and corruption – he has reportedly tapped a religious group headed by soon to be twice divorced Ray McCauly to lead the discussion. Heaven help us. That is like asking Schabir Shaik to lead a discussion on business ethics and anti-corruption measures.

Any discussion about a moral code will have to take as its starting point respect for the human dignity of all. It will have to assume that a shared constitutional morality is based on a REJECTION of cultural beliefs and practices which refuse to respect the human dignity of some members of society because they happen to be gay and lesbian, or because they happen to be women or because they happen to be white or black or colored or Indian or they happen to be poor.

Such a code would also have to embrace respect for values of integrity and honesty and will have to reject a value system which valorizes materialism and the bling culture above all else and endorses breaches of the law or stealing from the poor “because we have not struggled to be poor” or because the theft or criminality is perpetrated by persons of a particular race or political party. Such a code would therefore require a complete rethink of the moral values of a large section of the present leadership of the ANC – including that of the ANC Youth League Leader, the Minister of Arts and Culture and the President himself.

Nah, not going to happen. Let’s rather get rich quick by stealing from the poor and by oppressing gays and women while flouting the law. I am sure our President will support a moral code based on these “sound” values. After all, it would not require any change in behavior from many in the present government leadership.

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