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.
I must admit it made a welcome change: Instead of cringing with embarrassment, I sat at the traffic light and gave a little cheer when I heard on the radio what ANC Youth League President Julius Malema had said about HIV/AIDS. Speaking at the Pan African Youth Union, Malema said it is up to Africa’s youth to stop the spread of HIV/Aids. He called on the continent’s youth to promote safe sex, the use of condoms and the proper use of anti-retroviral medication and continued:
Ours should be about ensuring that condoms become fashionable. Every time you greet each other you must ask, how are you? Do you have a condom with you? It should not be an apologetic issue.
Maybe if someone as outspoken and popular as Julius Malema puts his full weight (so to speak) behind a campaign to make condoms fashionable and urges young people to insist on condom use we have a chance to turn this thing around. Maybe if Malema and others drop the ridiculous and counter-productive notion that we will stop the spread of HIV if we promote the ABC (“abstain”, or “be faithful” and if you cannot do the above “use a condom” – in other words, insist on a condom if you want everyone to think you are promiscuous), we have a chance.
Of course, our leaders should have said this kind of things many years ago, before hundreds of thousands of people had died needlessly of HIV related illnesses. But I suppose its better late than never, so I will be the first to applaud Mr Malema and to encourage him to continue the good work.
But then, another publication reported that at the same event, commenting on the call by Young Communist League leader Buti Manamela that Manto Tshabalala-Msimang and Thabo Mbeki should be charged with genocide for not providing dying South Africans with anti-retroviral drugs, Mr Malema said the following:
We must never surrender our leaders. Thabo Mbeki might have made mistakes but we can never charge him. We must not charge one of our own. If we allow that, the same thing would happen to [Zimbabwean President Robert] Mugabe, and the same would happen to [President Jacob] Zuma, and the next thing you know they will come for you.
Now, I do not want to get involved in a debate here on whether Mbeki and Tshabalala-Msimang should be charged with genocide and whether such a charge against them would stick. I do wish to take issue with young Julius’s view on the Rule of Law though. Saying that one should never charge one of your own is dangerous and undermines the Constitution and the Rule of Law.
Our leaders, no matter how well respected and loved, are not above the law. If they break the law they have to be charged. Just like every other South African – whether she lives in Houghton or Lusikisiki, Bischops Court or Pofadder, Witsieshoek or Nkandla – a leader in a constitutional democracy is not above the law.
Suggesting that leaders – because they are our leaders – should never be charged with any crime, no matter how heinous that leader’s actions have been, how detrimental to the poor and downtrodden, how murderous or anti-democratic, demonstrates a profoundly undemocratic and anti- constitutional view of politics.
This is the kind of view that allows young politicians like Julius Malema to jump out of his car in a dazed state and express his existential confusion by urgently asking those who stopped him to please tell him who he was. It is the kind of view which holds that leaders are beyond criticism and that even if they do the most shocking things, they should be above the law. Down that road lies tyranny, despotism and the most egregious abuses of the rights of ordinary citizens by powerful leaders: it is the way of Pol Pot, Adolt Hitler and Idi Amin.
In a constitutional state, leaders should actually be beyond reproach. If we are going to charge anyone it should be our leaders who have broken the law. In a constitutional democracy we entrust them with our money, our well-being and our futures and if they abuse that trust by stealing our money, killing political opponents or ordering the police to torture the leaders of social movements who are critical of them, such leaders seize being worthy of our respect and, in effect, seize being our leaders at all.
What worries me is that Julius sees himself as a leader as well and hence believes that he is also above the law. No wonder he has failed to pay so many speeding fines and called his friends in government to reprimand traffic cops who had the audacity to stop him for speeding. Today it is traffic fines, tomorrow it is hit squads and torture.
Ag nee man Julius, just when I thought the media had been treating you harshly you say something like this which reminds me that you have a lot to learn about constitutional democracy and the Rule of Law. Stick to the condoms and HIV: at least you are doing good work on that front.BACK TO TOP