Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
27 January 2009

President Motlanthe’s sex life and public morality

Things are obviously getting rather dirty in the internal battles in the ANC. What am I saying: not getting dirty, getting even MORE dirty. First there were the stories of President Kgalema Motlanthe thrashing the house he was renting in Sandton. And then this weekend, newspapers reported that our President – who is married – is conducting affairs with two different women while he is still married. One of the women is said to be pregnant with his child.

If this is all true – and President Motlanthe has not confirmed or denied these reports, so we do not know what is true and what not – the question is whether the newspapers should report on such matters at all. The ANC thinks not, and claims that our President’s rights to privacy and dignity protected by the Constitution have been infringed.

As a general rule, I think newspapers have no business to report on the private lives of politicians. I prefer the French rather than the US approach to these matters. The French has a firm belief that the private affairs of a politician will almost never say anything about that person’s fitness for public office and should be off limits for the media. Who cares if a politician has a mistress, is gay or lesbian, frequents prostitutes or is involved in a sex romp now and again?

I know I don’t. I care rather more about politicians sc@!wing ordinary voters by stealing our money, than about what they do in the bedroom.

This will change if the politician’s public statements and private actions clash violently. If the President was the chairperson of the moral regeneration movement, say, and speaks week after week about the need to respect traditional moral values, yet carries on affairs in secret, then it will say something about the credibility and honesty of that person and should be exposed. Or if he has just fired the Attorney General for not taking into account national security issues while he is privately carrying on an affair with a women who is a spy for Zimbabwe, then it should be exposed by the media.

If the politician is an ACDP leader and rails against homosexuality while sleeping with young men on the side, the same rule should apply. And if a politician is the Minister of Health and tells the nation that to prevent HIV, every person should only have one sexual partner at a time, yet is promiscuous in his or her private life, this information will clearly be relevant and should be exposed by the media. That is why the reports about our previous Minister of Health’s drinking problem and her cleptomania was probably acceptable: it spoke towards her rank hypocrisy.

But as a general rule, I think the private morality of a politician has nothing to do with us voters and we should allow our politicians to live their lives in private – no matter how messy these lives might be. But the public morality of politicians requires that they are more or lest honest, that they should not behave like rank hypocrites and that they should more or less practice what they preach. If they fail to do so, it will say something about their public morality and then their private lives should become fair game for the media.

In principle I therefore agree with the ANC stance on this issue. Where I differ with the ANC, is where it says these reports violate President’ Motlanthe’s right to dignity and privacy.

First, the ANC is confusing the common law notion of dignity and the constitutional notion of the right to dignity. The former is a subjective notion, speaking to the dignitas of a person, that is the feelings a person has about him or herself. It is subjective and refers to the person’s feelings and standing in the community. Common law deals with breaches of this kind of dignity through defamation law, for example.

The more important a person is, the easier it would be to show his common law dignity has been interfered with – but this is not a  human rights issue. He or she can sue the newpaper for defamation if he or she wants, but cannot claim an infringement of his right to dignity, merely because he or she feels hurt and embarrased about what was written. That kind of subjective dignity – which might even be constitutionally problematic because it does not afford all people equal protection of the laws – is not what is protected by our Bill of Rights.

On the other hand, the right to dignity refers to dignity in the objective sense. It does not refer to the feelings of a person, but to the notion that every person – objectively speaking – has an inherent and equal dignity because he or she is a human being. This dignity cannot be taken away by law or by media action, because it is inherent in being human. When newspapers report on the private life of a President, they are not interfering with this right to objective dignity – even if the reports might hurt the feelings of the President. It will only be where the media treats a person as if he is not really fully and equally human that the right will kick in.

As for the President’s privacy, I suspect he would have a rather uphill task to convince a court that a report about his relationships with various women infringes on his right to privacy. This is because the Constitutional Court has said that the privacy right is layered – like an onion. The more private the person and the more private the act, the stronger the protection. The more public the person and the more public the behaviour, the less the protection.

So, a right to privacy will almost always be infringed when a newspaper reports on the consensual private sexual acts of a private citizen conducted in private. Even public figures might be protected from salacious reporting of very intimate details that will not make any contribution to the enhancement of democracy. Thus, reporting details of President Motlanthe’s sex life will almost certainly infringe on his right to privacy – unless he has taken a stand agains same-sex marriage, say, and has had a night of passion with an 18 year old boy, because this information will then become important for us voters to make decisions about our democracy.

Where the newspaper reports on issues affecting the spouse of our President – our first lady, so to speak – then it might well be ethically wrong to do so, but would probably seldom infringe on either the President’s or his or her spous’s right to privacy. If he or she wanted absolute privacy about a marriage, the President should never have become a politician. As us tax payers foot the bill for costs incurred by the President’s spouse, there is some public benefit of information about his affairs being published.

I still think in this case the reports should not have been published because the link with the exercise of our right to vote is so tenuous and the sleazyness of the reporting so problematic that it probably does not enhance the working of our democracy. Let the President be. Unless he steals our money of course or takes a bribe from a friend or an arms company. Then, please tell us all about it.

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