Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
8 June 2016

The problem with using human rights as trumps

Just because you have a right to do something does not mean that it is right to do it. One of the problems with (some) versions of liberal rights discourse is exactly that it seeks to conflate arguments about the right to do something with whether it is right to do it. This kind of reasoning is bad not only because it runs the risk of discrediting the notion that rights should be protected but also because it can potentially impoverish democratic debate.

When artist Brett Murray painted “The Spear”, depicting President Jacob Zuma in a classic Lenin pose with his genitals hanging out, the debate about the painting quickly deteriorated into an argument about the right to free speech.

Many defenders of Murray’s painting argued that Murray had a right – as an artist – to decide what type of artworks to create. If we criticised the art, so they claimed, we were threatening his right to artistic expression.

(A different – even more problematic – version of this argument emerged, namely that art somehow floats above politics and ethics and cannot be criticised except on so called “apolitical”, “purely artistic” grounds – a distinction that is only possible to make if you happen to be from the socially and culturally dominant group and are therefore blind to your own positionality and the political and ethical content of the dominant “artistic” criteria you happen to use in judging the art.)

Many opponents of Murray’s artwork argued that given the long history of whites depicting black men as oversexed and dangerous, Murray’s painting relied on racist stereotypes for its effect and was therefore a highly problematic piece of art. Some went further – taking their cue from the rights-based analysis of their opponents – and argued that Murray had no right to paint what he did and that the artwork needed to be censored or destroyed.

In this case rights discourse got in the way of having a meaningful engagement about racism, stereotypical depictions of the sexuality of black men and the fact that works of art that relied on (instead of subverting) tired and hurtful stereotypes are invariably mediocre and uninteresting as works of art.

The protection of a wide array of rights are important in an open and democratic society. Rights are protected in part because citizens have different conceptions of the good life and do not all agree on what is ethically the right thing to do or say.

For example, a majority of citizens may think that it is ethically wrong to criticise Christianity. They may believe that I should not have the right to criticize religious organisations who claim that God requires them to discriminate against gay men and lesbians and to treat us as sub-human. They may also believe that any artistic depictions of naked bodies are immoral and wrong.

If my right to freedom of religion and conscience and my right to freedom of expression had not been guaranteed, the state would have had been able pass a law (supported by a majority of voters) banning anyone from calling out religious organisations for their bigotry. In the absence of rights protection, the state could also pass a law prohibiting any artist from painting a naked man or woman. But because our rights are protected, we do have a right to criticise religious groups – just as we have a right to paint pictures of naked men and women.

These religious groups may, in turn, have a right to propagate their view that in terms of their religious beliefs some individuals are sub-human and thus deserving of discrimination. They may also propagate their puritanical view of human bodies and sexuality. But just because they have a right to do so does not mean that we should all be forced to agree that it is ethically justified to do so. (I happen to believe that the views of these religious groups are perverse and immoral.)

There is a wide array of issues which citizens in an open and democratic society will disagree about. We will disagree, for example, about whether “The Spear” is trading in racist stereotypes or whether it is a mediocre artwork (I happen to think it trades in racist stereotypes and is therefore a mediocre piece of art).

Of course, sometimes a society will more or less unite in agreement about what is right and what is wrong and then it becomes easier to align what one has a right to do with what society as a whole think is right.

For example, almost all South Africans would agree that paedophilia is wrong. Few would therefore argue that citizens should have a right to engage in paedophilia.

The vast majority of South Africans will also agree (at least publically – privately it is another matter) that racism and racial discrimination are wrong – although disagreement about how to define racism and what constitutes racial discrimination rages on. (Sadly, many people who engage in these debates have been too lazy to read even a smidgen of the relevant literature produced over the past 60 years on the subject – but in a democracy there is usually no law to protect us from toxic ignorance.)

Few would therefore argue that you should have a right to discriminate against others on the basis of race (although people will fight tooth and nail – often from a rather uninformed position – about what they understand to be racial discrimination).

When fundamental disagreements exist in a society about what is right and wrong, it is seldom helpful to present this disagreement as one between the defenders of rights, on the one hand, and those who oppose the protection of rights, on the other. By turning a disagreement about what we believe is right and wrong into a disagreement about respect for rights, those who invoke rights often try not to have to talk about the merits of their case.

Rights are often invoked as trumps – as a mechanism to stop us from arguing about what we think is right or wrong. This is not good for democracy as democracy thrives on discussion, disagreement and contestation about the good life, about what we believe is right and wrong, about how we think our society should be structured.

Almost all of us invoke rights strategically to try and stop an argument about something we think is logically or ethically so obvious that it is not really worth having an argument about. We invoke rights in an attempt to delegitimise what we believe to be the harmful beliefs and arguments of others.

To be honest, I sometimes strategically invoke rights as trumps – knowing that I am doing so – in order not to have to argue with religious bigots about their belief that their religion requires them to treat fellow citizens as sub-human and demands that they discriminate against some of us.

But sometimes we also invoke rights as trumps because we suspect that we are on shaky ground in defending our position and do not have the tools to do so or because we are not honest enough to admit to the possible flaws in our argument. I suspect that many of those who defended Murray’s painting by invoking his right to artistic expression fell into this category. (I also suspect that many of them will deny this.)

When we do this, we conflate what is right with what a person has a right to do and we do so to try and end the argument. This is bad for the protection of rights as it sends a signal to your opponents that rights always trump any argument about what is right and wrong.

Rights are supposed to help safeguard the democratic space in which vigorous disagreement about what is right and wrong can flourish. But when rights are invoked as trumps in an attempt to end the discussion, rights become associated with the undemocratic silencing of opposing views. Instead of protecting the democratic space – as rights so importantly do – rights are used by those with social and economic power as anti-democratic trumps aimed at silencing opponents.

A similar dynamic emerged recently when the National Director of Public Prosecutions (NDPP) announced that the National Prosecuting Authority (NPA) would seek permission to appeal the judgment which ruled that the decision to drop all criminal charges against President Jacob Zuma was invalid.

The decision by the NDPP was subjected to severe criticism (also by the likes of myself) on the grounds that an appeal had a very slim chance of success and that public money should not be spent on it. It was suggested that the decision to seek permission to appeal the case could not have been taken on purely legal grounds.

Much like supporters of Brett Murray’s painting of The Spear, supporters of the NPA decision argued that the NPA had a right to appeal a court judgment and that those who criticised the decision was in effect undermining the independence of the NPA and its right to make decisions about which judgements to appeal.

I pause here to note that in South Africa there is no automatic right to appeal a court judgment. A litigant has a right to ask permission from the court to appeal its judgment, but the court can deny this. If right for leave to appeal is denied a litigant can petition the Supreme Court of Appeal (SCA) or the Constitutional Court, but these petitions could be rejected. It is therefore not technically correct to argue that the NPA has a right to appeal any judgment it wishes to appeal.

Of course, the NPA does have the right to ask permission from the court to appeal its decision to the SCA. The question is not whether it has this right or not. The question is whether the NDPP decided to seek permission to appeal the judgment because he truly believed that a matter of grave principle was at stake and that the appeal had at least some prospect of success, or whether the decision was influenced by irrelevant political considerations.

This is a classic case where rights discourse is of little help in answering the ethical or political question of whether the NPA acted without fear favour or prejudice when it decided to try and appeal the judgment which would force them to prosecute the President of the country.

To answer this question, you have to ask whether there are valid legal grounds to appeal the judgment. Furthermore, you have to ask whether an important legal principle (which have not been settled by the court you are appealing to) is at stake.

Of course, I have argued before that the decision of the NPA was wrong because there are no valid legal grounds for appeal and because the SCA has already definitively dealt with the legal principle in issue. Others may well disagree with me. But this is not an argument about the right or not to appeal a court judgment. Rather, it is an argument about whether the NPA can be trusted to make prosecutorial decisions impartially and without fear or favour.

The rights in the South African Bill of Rights are powerful tools to help safeguard the democratic space within which citizens can engage each other about what constitute the good life and what is right and wrong. But when rights discourse is used indiscriminately to try and stifle disagreement and close down debate, it can be very bad for democracy indeed.

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