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.
President Jacob Zuma is not a person who seems to take kindly to criticism (and neither is he someone who can take a joke at his expense). One might even claim that he seems a bit, well, thin skinned (if not, dare I say, dictatorial) in his attitude towards those who say things about him that he does not like. Not that Julius Malema has shown a lot of tolerance towards those within the Youth League who have dared to criticise him or who opposed his leadership at one time or another. In fact, these two leaders, may, ironically, be cut from the same kind of cloth.
A few years ago Zuma announced that he was going to sue Zapiro for R5 million because he claimed the cartoonist had defamed him after the cartoonist had published a cartoon in which he suggested Zuma was violating the justice system to avoid facing fraud and corruption charges.
It therefore comes as no surprise that the National Disciplinary Committee (NDC) of the ANC – ostensibly acting completely independently of President Zuma (yeah right!) – announced this morning that it was temporarily suspending Julius Malema from the ANC with immediate effect. The purported reason for this suspension is that Malema allegedly brought the ANC into disrepute. (Malema had already been expelled from the ANC earlier, but his appeal regarding the expulsion is to be heard only later this month.)
Apparently the ANC as an organisation is brought into disrepute if one of its members criticises the leader of the party in public. (Criticism might be the lifeblood of any democratic culture, but public criticism of leaders has now suddenly become alien to the culture of the ANC – at least if that criticism is levelled at President Zuma.) How any political party can remain democratic and how it can renew itself and correct mistakes, when its members are not allowed to criticise the party leader in public, is unclear. Maybe criticism can be communicated in secret messages with the assistance of the intelligence services?
Of course, this ban on any public criticism of a sitting leader is not based on a principle that was followed by President Zuma and his supporters during his fight with former President Thabo Mbeki. But I guess consistency and an abiding respect for high principles is not really what is in play here. What is at play is President Zuma’s future survival. Remember, he might well believe that he will either get a second term or he will go to jail for 15 years, so (in his eyes) there might not be time for niceties such as respect for democratic debate inside the party.
Malema now faces fresh disciplinary charges, which will obviously lapse once the ANC Appeal Committee confirms Malema’s expulsion – surely only a formality. This is after Malema criticised Zuma on Friday in the following terms:
It is under President Zuma that we have seen the youth of the ANC being traumatised, being expelled from their own home. It is under President Zuma we have seen a critical voice being suppressed We have seen under President Zuma, democracy being replaced with dictatorship. We have seen an intolerance….people, who become impatient with the youth….
The NDC did not say who complained about the utterances made by Malema. It did stipulate the following (once again rather draconian and probably not entirely enforceable) conditions that Malema will be required to comply with during his suspension:
- He will not exercise any duty in his capacity as an ANC member, President of the ANC Youth League and/or Member of the Provincial Executive Committee of the ANC Limpopo Province;
- He will not attend any meeting of the ANC or any of its structures, including the Leagues, except for the purpose of the NDCA hearing and the pending disciplinary proceedings to be instituted against him.
- He will not address any meeting of the ANC or any of its structures, including the Leagues, whether as an invited guest, in his capacity as President of the ANC Youth League and/or as a member of the ANC; and
- He will not make any public statement on any matter pertaining to the ANC.
Of course, the first thing to note is that this will bring the clash between the Youth League and the mother body of the ANC to a head, as Malema is forbidden from attending any Youth League meeting, which the League insists can operate free from the discipline of the ANC.
Members of the Youth League Executive (with or without Malema) will now have to decide either to defy this order of the disciplinary committee or face disciplinary charges and expulsion themselves. What happens if they continue arguing that the Youth League Executive members cannot be ordered around by the mother body and cannot say whether Malema should sit on the League’s Executive or not? What if the Executive continues meeting with Malema as its President? Surely they will all then have to be suspended as well and then ultimately expelled.
President Zuma seems to have learnt well from the “mistakes” of Thabo Mbeki and he is taking no chances with those who might oppose him. Cut off their heads before they can gather steam, seems to be his motto. Whether this is a democratic attitude or closer to the dictatorial style that Malema spoke about, I leave to the judgment of the readers.
Secondly, an order purporting to ban Malema from making any public statements on any matter pertaining to the ANC infringes on Malema’s right to freedom of expression. Our Bill of Rights can also bind private individuals, organisations and political parties and I am almost certain that when an organisation bans a member from making any statements about that organisation in public that organisation is in breach of the Bill of Rights. For this reason, the probably unconstitutional censoring of Malema by the NDC seems troubling, to say the least.
A further irony is of course that this immediate suspension and the draconian (and partially unconstitutional) nature of the “conditions” imposed on Malema during this latest suspension nicely seems to illustrate the point Malema was making in his speech about the intolerance of Zuma to dissent and the inability of the leadership to listen to and accept criticism of ANC leaders and policies.
By making these points I am not arguing that Malema was wise to make the statements that got him into trouble today. Neither am I claiming that I believe Malema is an eternal democrat who is saying these things because he really has the best interests of the ANC at heart. Yet, as I warned before, one must be careful to cheer on this silencing of debate and dissent inside the ANC merely because the person being silenced is someone with whose views one does not agree and whose downfall one might applaud.
Today they come for Malema. Tomorrow they might come for you or me.BACK TO TOP