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.
Some readers of this Blog got a bit hot under the collar because they thought I had suggested that the brutal police raids in Stellenbosch a few weeks ago was not anything to worry about. My larger point was that although the way the police acted in Stellenbosch was “abhorrent”, much worse things happen every day and people do not get excited about it because those affected are, in effect, powerless because they lack access to the media because they are poor and black.
The bigger question though is why the police is behaving like this. We are supposed to live in a constitutional state in which (even) the police respects the basic human rights of the people of this country, yet the police seems to move further and further away from this ideal every week and every year.
One way to explain this is to excuse the police and to point to the high levels of violent crime they have to deal with every day. Would you not have hit innocent people to a pulp if you were under the constant threat faced by the police, the argument goes. But I do not think this is the full story.
I suspect that at the heart of the police abuse of power is a lack of real transformation in the SAPS. This is because the new state – although talking the transformation talk – often imitates the old apartheid state when it tries to do what it thinks a state ought to do. Instead of looking towards the Constitution for its values, it somehow often gravitates towards the apartheid state example, perhaps because subconsciously it views the apartheid state as a well run (if evil) state. After all, we are all the product of that messed up state ourselves and carry the evil ways of that state within us, somehow.
Two years ago an MEC in the Eastern Cape made a big stink about a play in which black woman spoke freely about their sex lives and stated that this play was “un-African”. The comments of a journalist at the time struck a cord with me. He said as he was sitting there watching this woman in a powder blue crimpelene dress and an ugly hat going off about the evils of promiscuity, he suddenly thought that he was back in apartheid South Africa and wondered why this MEC was somehow imitating the worst reactionary tendencies of the old regime.
This is a provocative thing to say, but maybe it has something to do with a lack of confidence and pride of some of our rulers. Perhaps some of the leaders of the new South Africa have not read enough of the work of Steve Biko and thus think (even at a subconscious level) that they need to imitate the oppressor state which was deeply evil but in its way quite effective, Instead of trying to transcend the values of the apartheid state, instead of trying to build a real constitutional state, they revert back to what they know best.
Why would one imitate the apartheid police if one was at the receiving end of that police? Maybe because one has not thought deeply about the true meaning of transformation in South Africa and thinks that a “good” police force will act like the apartheid police force – just with black people in charge.
I am not saying all leaders think like this or even that they think like this consciously. I am saying that it is very difficult to take over an evil state like the apartheid state and to transform that state and not to be transformed by the state instead.
The problem is that this kind of reasoning gives far too much power to the erstwhile oppressor and lacks the creative imagination and energy needed to construct a new state based on the values of the Constitution. It leads to arguments about the “un-African” nature of homosexuality, say, without reflecting on the fact that the homophobia espoused was actually imported into South Africa by the colonial masters. What is un-African is not homosexuality, but homophobia.
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