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.
Firstly, the “we” whose anti-colonial struggle is “ours” is nothing less than people itself. Secondly, this “we”, the people, is authentic only when it is either in or sanctioned by the nationalist movement. What has happened here is that the political space has come to be conflated with the space of the movement. Hence the ambivalent relationship of the nationalist movement to the democratic process.To the extent that the movement wins a democratic election, the results then merely confirm what the movement already assumes: that it is the authentic voice of the people. In the same way, democracy is valued to the extent that it is possible to pursue “the people’s” agenda through its mechanisms and institutions.
When uncertainty enters the political scene, things look different. What does one make of a political opposition if “the people”, “our people”, are always by definition unified in and around the nationalist organisation? Whom does it represent – if not “reactionary” forces (former colonisers, foreign interests, ultra-leftists). Moreover, if the nationalist movement is by definition the people’s own, then electoral loss can mean only one thing: sabotage by the enemies of the people.
In which case one pursues “the people’s” agenda by other means (“states of emergency” and so on). Is this not the brutal logic at play in Zimbabwe today? If so, then it is time to ask: Is not the condition of democracy today the weakening of nationalist organisations in the body politic?
This strikes me as a very interesting point and serves as a counterweight for the argument put forward by Ronald Suresh Roberts that those who get nervous about the ANC´s commitment to democracy are really just channeling the worst kind of racism and anti-nativism.