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.
Helen Zille, the former leader of the Democratic Alliance (DA), recently threatened that she would organise a tax revolt if many people implicated in state capture at the Zondo Commission are not prosecuted and jailed within a “reasonable amount of time”. Zille’s comments raise questions about whether civil disobedience has any role to play in a constitutional democracy, and if it does, in what circumstances it should be accepted.
One of the most potent non-violent tactics citizens have at their disposal to protest against injustice, or to advance a cherished political cause, is to refuse to obey certain laws, demands, orders or commands of their government (or of any other powerful institution such as Universities or large corporations). When citizens engage in such forms of civil disobedience in an undemocratic and oppressive state, many democrats will instinctively support this.
But when citizens engage in civil disobedience in a constitutional democracy, many democrats would instinctively respond that this is unacceptable. The argument – also used by many people who criticised Zille – is usually along the lines that citizens in a democracy have the right to elect the government of their choice and that breaking the law to advance a political cause is therefore always anti-democratic.
Besides, the argument goes, in between elections citizens can also participate in the democratic process through demonstrations, protest marches and by expressing their opinions on the internet or other media, so there is no need to break the law – which at best would then be immoral, and at worst, treasonous.
I happen to think that Zille’s threat of a tax revolt is particularly noxious, but I am not sure the neat distinction made by some of her critics between democracies (where civil disobedience should not be countenanced) and non-democratic states (where civil disobedience should be welcomed) is that convincing.
In my opinion, even in a functioning democracy, there is a vast difference between homeless persons breaking the law by occupying a derelict building or a piece of land as a survival mechanism or as a deliberate tactic to challenge the injustice of the profound economic inequality in our society (of which their homelessness is a clear manifestation), and an upper middle class politician refusing to pay taxes because he or she is unhappy with the actions (no matter how problematic) of the elected government.
Similarly, it is much easier to support members of a rural community who refuse to move from land despite the fact that a large multinational corporation has obtained a court order to that effect because it was granted the right to mine that land, than it is to support an upper middle class person who refuses to pay her e-tolls account.
I would argue that the difference boils down to power: who really has access to the system; who really has the power to effect change through the democratic process and who do not? The more political, economic and social power a person or group wields in a constitutional democracy, the more difficult it is to justify the breaking of the law by that person or group.
This is because – even in functioning democracies – not all voices have equal weight and not all people have equal say in who governs and what policies are adopted by government. The assumption that we all have an equal say in determining the actions and decisions of the democratically elected government (and therefore that we all legitimately give our consent to obey all laws and all actions of an elected government) is almost certainly misguided.
The elected government and state officials are more likely to take seriously the concerns of those with pots of money; of governing party insiders; and of those with social, cultural and economic clout. You will have more social, cultural and economic clout if you live in a city (or, even better, a former whites-only suburb) and not in a rural area; if you are middle or upper-middle class and educated and not poor and lacking in formal education; if you are white and/or male; if you are politically connected; or if you happen to be one of the many talented (but often untalented) celebrities so celebrated in our consumerist, capitalist culture.
Somebody like Helen Zille enjoys all the benefits that her race, class, political position, and “celebrity” (some might say, infamy) affords her. Every single one of her late night tweets reverberate across South Africa, giving her an outside influence and allowing her to have a real impact in our democratic system (albeit often an impact that is detrimental to the party that she used to lead). One can hardly argue that – through no fault of her own – she is not being heard and that she has no voice in the democratic system. The same goes – in varying degrees – for many (but not all) DA supporters who are middle class and have access to extraordinary economic and social resources
Contrast this with members of a poor community living in an informal settlement in De Doorns or Orange Farm, who have no access to clean water or any other basic government services, who are never visited by any politician (except maybe in the week before an election), and whose protestations will be ignored by the media and by politicians in government unless members of the community resort to unlawful action (say, by blocking the highway and causing the maximum inconvenience to middle class road users).
It would surely be far easier to justify the civil disobedience of the poor community, than it would be to justify a tax revolt by middle and upper middle class people who are upset that the government is corrupt (bad as that is) or that it is not acting to promote their middle class interests?
It goes without saying that some of those supporting Helen Zille’s suggestion of a tax revolt, will argue (as Zille has done herself) that even socially, economically and politically powerful people like herself have a right to revolt (it amuses me somewhat that one could interpret this as a claim to have “the right to be revolting”) because despite their power and relative influence, they have not managed to get a majority of South Africans to vote for them.
Zille (reflecting a catastrophic arrogance prevalent among some – but not all – DA members and supporters) is explicit in blaming voters for “not knowing any better”. In her tweets on the tax revolt she wrote:
I have tried the electoral route for years. Voters seem to like voting for corruption…. If the voters fail the democracy test again, its [sic] time for additional methods.
This is quite an extraordinary statement for a politician to make.
The statement suggests that she believes politicians (well, the “right” sort of politician at least) only need to adhere to democratic outcomes and only need to obey the law if voters endorse the DA. According to this rather messianic view, if voters make the “wrong” choice by not voting for your party, the voters are to blame and you have a right to break the law to obtain the outcome you desire, ostensibly to “save” the country.
It would be interesting to hear the arguments that will (inevitably) be advanced in defence of Zille’s position on why this view is different from, say, the hypothetical case of the EFF or the ANC refusing to accept the outcome of a local government, provincial or national election won by the DA.
Normally in a democracy, political parties attempt to attract voters in the hope that a majority of voters would vote for the party. To do so, a political party and its representatives need to convince voters that the party represents their interests (something the DA has not been able to do in sufficient numbers) and that its representatives understand their concerns and are more or less likeable human beings.
When a party fails to win a majority of votes, that party’s leaders usually say that the voters have spoken and at least pretend that they believe the voters always know best. The party then strategizes on how to win over the voters at the next election. Democrats usually do not blame voters for being too stupid to vote for their party as this places the party above the people.
Democracy can be criticised for not affording meaningful participation for all. It requires everyone to have a real say, but is not always good in achieving this goal. But while democracy requires everyone to have a meaningful say, it does not require your party to have its way. If you believe that a democratic government is just legitimate if you win the election, and is illegitimate if another party who is bad at governing wins the election, you are not much of a democrat at all.
When I read Zille’s statements blaming voters for not voting for the DA, it reminded me of the famous poem of the German poet Bertolt Brecht about the 1953 uprising of East German people against the communist dictatorship. Dripping with sarcasm and irony, the poem – entitled “The Solution” – reads as follows:
BACK TO TOP
After the uprising of the 17th of June
The Secretary of the Writers’ Union
Had leaflets distributed in the Stalinallee
Stating that the people
Had forfeited the confidence of the government
And could win it back only
By redoubled efforts. Would it not be easier
In that case for the government
To dissolve the people
And elect another?