Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
9 September 2008

The dangerous constitutionalisation of our politics

The debate that is now raging about the publication of a Zapiro cartoon – which depicts Mr Jacob Zuma on the verge of raping a woman representing the justice system while his allies hold her down – is potentially a healthy manifestation of democracy in action. The more we talk and debate and argue about controversial matters and the more we get to focus on important issues regarding the independence of the judiciary and the role of politicians in endangering our democracy, the better.

Unfortunately, much of the debate has not focused on the issue which Zapiro meant to highlight – namely how Mr Zuma and his allies are prepared to abuse the justice system for short term political gain. Instead, most people have commented on the wisdom of using the rape metaphor to make the point.

Some have  lambasted Zapiro for his “disgusting cartoon” that “borders on defamation” and have argued that it infringes on the dignity or privacy of Zuma and Gwede Mantashe. Others have cheered him on while attacking those who have criticised Zapiro as enemies of freedom of expression.

I was again forcefully struck by one aspect of this debate that I find troubling. Both on this Blog and elsewhere people seem to confuse and conflate the constitutional issues around freedom of expression and the right to privacy and dignity on the one hand, with a broader political/ethical question of whether a cartoonist should use a rape metaphor in his work on the other.

For me this is part of a dangerous constitutionalisation of politics, which allow people to skirt the very real, and difficult political and ethical issues of our time in favour of constitutional sloganeering. Unfortunately this tendency is not limited to one group alone. We all seem to hide behind constitutional slogans when it is too difficult, embarrassing or complex to engage meaningfully with an issue.

Thus, if one criticises Zapiro one is suddenly an enemy of free speech – even if one has never suggested that he should be censored or that the Sunday Times should apologise for publishing the cartoon. If one points out that Jacob Zuma is a morally flawed character, one is suddenly blamed for infringing on his right to be presumed innocent until proven guilty and on his dignity and his privacy. Because rights are often seen as trumps – and thus as a way to stop the political debate by appealing to a higher kind of principle – this hiding behind rights is dangerous for open and robust debate.

I am not saying that rights are not important or that a concern for human rights should not form part of the political discourse. On the contrary, a human rights sensibility should inform every discussion of politics. But South Africans seem to have a tendency to shy away from moral ambivalence and from acknowledging and confronting the complexities of living in South Africa by shouting out human rights slogans to stop any argument.

It is much easier to shout down an opponent with constitutional soundbites than to actually engage with the issues – which are often more complex and less obvious than we want to admit. For example, because it is too complex, difficult or uncomfortable to talk about racism, sexism and homophobia, we far too easily fall back on tired old assertions of hate speech.

And because it is too embarrassing or politically uncomfortable to have to deal with the fact that Mr Zuma took more than a million Rand from a convicted fraudster and then did some favours for him,  and that he lied to Parliament about this, some of us prefer to shout from the rooftops about unfair trials and the dignity and privacy of our beloved leader.

For the same reason, some comments on this Blog have suggested that I am a depraved ANC lackey who is the enemy of press freedom because I asked some questions about the wisdom of the rape cartoon, instead of engaging in a meaningful and thoughtful way with the questions I posed.

This kind of discourse seems like an ethically lazy and dangerous one, because it allows individuals to skirt the real issues in favour of manufactured issues around the Bill of Rights. It is dangerous because it cheapens real concern for human rights and uses human rights language as a way to hide from taking responsibility for our actions and beliefs.

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