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.
Although it might not appear so at the moment, I believe section 88(2) of the Constitution is one of the most beautiful and important provisions safeguarding our democracy.
Section 88(2) states:
No person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.
During President Thabo Mbeki’s first term as President he governed the ANC – and by implication
How things have changed.
Only this week the Deputy Minister of Health told a British newspaper that President Mbeki should go for an HIV test and continued:
What has happened in
is sad and tragic… people are confused about treatment… and this has come about because of the confusing messages coming from the very top…. It is absolutely irresponsible to say to people who are desperate, who want to live, ‘Oh, go to your traditional healer if you want’. South Africa
And when the President last Friday went on a rant about the “fisher’s of corrupt men”, Cosatu hit right back at him, suggesting that he was a bully and that he was the one dividing the alliance. The statement, in part, says:
[T]he President’s style of engagement leaves much to be desired. He never debates on the strength of his arguments or correctness of the points he is raising. He always seeks to misrepresent people’s genuine concerns in order to ridicule those he disagrees with and question their integrity. He throws the race card even against organisations whose membership is constituted mainly by the very ANC members he is leading.
I would contend that none of this would have happened if President Mbeki was going to be President of the country for a third and a fourth term. Because people now believe that Mbeki cannot serve a third term and cannot play a decisive role in their political careers, they are far more ready to be brave and to speak truth to power.
And because people inside the ANC has stopped fearing the President, those of us on the outside are not so easily cowed into silence for fear of being labelled racist or ultra-leftist. Would Mondli Makhanya have dared to publish the scathing article about Mbeki in the Sunday Times five years ago? I doubt it.
Ironically, the Jacob Zuma saga has helped to give some politicians some backbone. In the end I believe that Jacob Zuma will be seen as the Geoffrey Howe of
If it was not for the term limit placed on him, President Mbeki might never have been attacked in this way and we could easily have had more Aids denialism, more ad hominem attacks on those who disagree and more fear of speaking our minds.
I thus think section 88(2) is an absolute non-negotiable section of the Constitution – not because I take a special joy in the President being attacked, but because I take a special joy in democracy, which requires robust debate and criticism even (or, no, especially) of the President.BACK TO TOP