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.
Steven Friedman made me sit up and think last week. He says our society is far too quick to worry about, say, the state of our democracy and we are far to slow to celebrate the successes of that self same society.
On the Thought Leader Blog, Friedman argues that we tend to forget what a miracle it is that both the President of the ANC and the head of the police force are being charged with corruption – despite their high positions. This kind of thing hardly ever happens in countries like Britain or Italy – despite the fact that the lot over there can be just as corrupt as we are and have been practicing this democracy thing for quite a while longer than we have. This means our institutions are mostly working and we should celebrate this and not be so gloomy all the time.
His comments seem to be true, in its way, and they made me worry a bit about my own grumpy self. Let’s face it, I am a bit of a ranter and raver about all that is wrong in our society – especially on this Blog.
Is it possible that I am turning into one of those horrible Democratic Alliance types who finds fault with everything the ANC (and really by implcation, all black people) do in South Africa? Am I perhaps to some small extent the prisoner of a Afro-pessimism that implicitly makes me think that things will go wrong here and make me not see the successes and the things to celebrate in our society?
More importantly, by always criticising those in power (who now are mostly black), am I not sending a signal that I am not aware of (or worse, do not care about) the horrors of the apartheid past and how it still influence everything we do today in this country? Is it more important to be “right” than to see things contextually and to remember where we come from?
Put differently, is there a way to speak “Truth to Power” without turning into a “nattering nabob” (as Vice President Spirow Agnew’s called the press in the Nixon years in the US) , a whining white reactionary, just another “when-we” from another era pining for the influence and power now sadly gone?
These are important questions, I think, and worth talking about. Many white people far too often want to forget the past – as if it does not have anything to do with where we are today and what we think and how we act. Friedman is correct that when we look at the present mess surrounding Mr. Selebi and Mr. Zuma, we should celebrate the fact that the Scorpions and the National Prosecuting Authority (NPA) came through for our democracy – despite some serious hiccups along the way.
I, for one, misjudged the acting director of the NPA, Mokotedi Mpshe, and based on his really poor performance on Debra Patta’s show on ETV and his seemingly contradictory statements on the Selebi matter and the strange timing of the Zuma indictment I expressed serious misgivings about him on this Blog. If I could, I would personally apologise to him for pre-judging him.
It is also important, I think, to remind oneself that we have only been a democracy for 14 years and – even more importantly – that we had the most vile racial oppression under which black people suffered until 1994. That history cannot be wiped out merely because we have a democracy now and peoples’ perceptions and feelings and actions (and here I mean people of all races, classes, genders and sexual orientations) are obviously to a large degree still clouded by the experiences of the past.
In criticising people in power – the President, say, or a cabinet Minister – it is important not to forget the past and not to disregard the way one’s criticism might play into the hands of reactionary naysayers who believe and often say that a majority (read mostly black) government and judiciary cannot work properly “because black people are incapable of governing a country efficiently, democratically and according to the rules”. (As if apartheid South Africa was governed in that way!)
On this Blog I sometimes might get a bit carried away by the moment and forget the bigger picture, assuming that people who read this would know where I am coming from and what my commitment to this country and its Constitution might be.
That said, I still think it is imperative to criticise and complain and nag when things are not going right. Yes, there might be better and worse ways of doing this, but there are at least three reasons why I think it is important that people speak out and complain and nag and criticise those in power and generally make a nuisance of themselves.
First, I do not think it is unfair to expect a higher degree of morality from our revolutionary ANC-led government than we would have expected from the apartheid regime or the US or British governments. After all, the ANC holds itself out as a liberation movement that cherishes and champions the aspirations of the powerless and destitute people of South Africa. The ANC itself therefore invites us to hold it to a very high standard indeed and it is our duty to take the ANC at its word and to hold it to this standard.
When Tony Yengeni is elected onto the National Working Committee of the ANC while still on parole for lying to Parliament and taking a bribe, then we should question this vigorously and say that it constitutes a betrayal of the poor and the marginalised. The same goes for the Travel Gate MP’s and how they have been treated.
Second, the glory of the liberation struggle is that it brought us democracy and the freedom that goes with it. Previously we lived in a police state and now we can celebrate our freedom by exercising our democratic right to be contrarian and cranky and even bitter and twisted. To complain and moan and nag is part of our democratic right to freedom of expression and freedom of conscience. What is the use of these hard-won freedoms if we cannot exercise it as we see fit?
There are of course limits to these freedoms – questioning the integrity of a judge without any reference to any facts, for example, is unwise and undermines the very freedom we are supposed to celebrate. Equally, calling people hateful names and perpetuating racist, sexist or homophobic stereotypes or making statements (like “HIV does not cause AIDS”) that will kill people should fall outside the freedom I wish to celebrate.
Third, democracy – and the freedom that accompanies it – are not static things that once gained will be held in trust by the majority party for the rest of us. Anywhere in the world freedom is gained and held through constant struggle. No matter how noble the ANC might have been when it came into power, as the governing party it will be tempted to cut corners and to try and curtail our freedoms to make it easier to govern us and “get things done”.
Democracy can often be messy and quite frankly a nuisance because everyone has a say and everyone can complain and moan. In a democracy the ANC Youth League can issue statement after statement attacking all kinds of people in the most interesting and challenging English and even the Freedom Front Plus can sit in Parliament and talk about a Volkstaat and we have to accept it.
By saying this I am not implying that the ANC will tend to abuse the power they have now amassed because members of the ANC government are from a particular race or are particularly nasty or evil. On the contrary, they are just ordinary people and like everywhere else in the world ordinary people who gain power will tend to try and abuse that power if they are given the chance.
If people do not speak out about the things that are wrong in a democracy, if they do not fight for the space to criticise and organise and debate, those freedoms will be eroded – as sure as the sun will set tonight. That is the way of politics and power.
I therefore think it is important that people speak out – sometimes even sharply – against what they see as the abuse of power and even against their new leaders, no matter how painful it might sometimes be. Because, let’s face it, it can be painful to have to admit that one of one’s heroes might have feet of clay and it can even be more painful in a country like South Africa with its very specific history where everything is so quickly seen through a racial prism.
Yet criticising and arguing is important because it is one of the ways in which our democracy and the freedoms we now take for granted will be safeguarded for future generations. This is imperative so that we do not end up like, yes, Zimbabwe, but also Putin’s Russia or Franco’s Spain.BACK TO TOP