Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
19 March 2010

Why the silence from good ANC members?

One of the gravest threats to a constitutional democracy in a one party-dominant system, is the conflation of the governing party with the state. Where this happens, the dominant political party begins to act as if it is the state and its officials begin to believe that they are above the law or that they can make up the laws as they go along without having to revert to Parliament. Leaders of the party and officials with close ties to the party begin to act according to the apocryphal (but probably wrong) statement attributed to King Louis XIV of France who is reported to have said  L’État, c’est moi” (“I am the State”).

Several events over the past week suggest that a worrying and deeply authoritarian belief is taking root amongst some ANC officials and among some members of the police that they ARE the state and thus have a right to do as they please – regardless of what the law actually empowers them to do. News that the Presidency issued an instruction banning all demonstrations around the Union Buildings without having the legal authority to do so is a case in point. The actions of President Jacob Zuma’s body guards, who intimidated photographers who had the temerity to take pictures of his car and of his house, while the bodyguards had no legal authority to do so, is another.

Then there is the scandalous story of Floyd Shivambu, who moonlights as spokesperson for the ANC Youth League when he is not acting as a mafia-style thug, trying to intimidate journalists to stop asking questions about Julius Malema’s various business interests, his tenderpreneurial wealth and his alleged failure to pay taxes. Shivambu has been distributing a document containing private details of journalists who have been investigating Malema in an attempt to intimidate them – much like a mafia boss would break a few fingers of a suspected informer to shut him up.

Given the fact that President Zuma’s rise to power was accompanied by serious (and credible) allegations that state institutions were misused by his predecessor to score political points against him, one would have thought that Zuma would be extra vigilant about the misuse of state institutions for private financial and political gain and about respect for the Rule of Law. Sadly, it has become apparent that complaints about the misuse of state institutions and the breaking of the law during the Mbeki era had little to do with principle and everything to do with the fact that the law was being misused by the other side.

Now we have Shivambu peddling private information about the bank account numbers and salaries of journalists – all because they dared to report honestly on the shady dealings of Malema. Where did Shivambu obtain this information? Did buddies in the police or intelligence services provide this information to him? If not, who broke the law to gather this private information on journalists? What about their right to privacy and dignity?

If the ANC had any principles it would immediately repudiate the ANC Youth League and Shivambu for peddling private information about South African citizens and take disciplinary action against Shivambu. After all, when the Sunday Times published the medical records of then Minister Manto Tshabalala-Msimang, the ANC was scandalized and shouted blue murder about the infringement of Tshabalala-Msimang’s right to privacy. If the ANC fails to take action, it would show at the very least, that it has one standard for its own leaders and another for the rest of us: THEY have rights, WE don’t.

I would be surprised if the ANC acts in a principled manner and takes action against the thugs employed as President Zuma’s bodyguards or against the mafia-style bullies in the ANC Youth League. Because some in the ANC conflate the party and the state, there is an inability to see what a serious threat these actions pose for our democracy. Once bodyguards, Youth League officials and members of the intelligence services and the police start acting as if they are above the law, we might as well abolish Parliament. Why have a Parliament, tasked with passing legislation, when that legislation is only applied to some and not to others?

Legislation strictly control the role of intelligence services in gathering and disseminating information on private citizens. Legislation also limit the power of police officers and bodyguards. There is a good reason for that. Once the intelligence services and the police become a law onto themselves, they will be used by powerful politicians to harass journalists and to investigate political opponents and media critics in order to undermine democracy and entrench their own power by subverting the willow the people.

When that happens, a population starts living in fear of its leaders and criticism of leaders becomes dangerous or even fatal. Leaders are then free to do what they want, to get as many crooked tenders and to steal as much money form the poor as the taxpayers can provide. The result is an end of democracy and the start of an authoritarian kleptocracy.

We are not there yet, but that is no reason for complacency. The thuggish behavior fundamentally undermines the authority of the democratic elected Parliament and the principle of the separation of powers which states that Parliament makes the laws and the executive implement the laws. We have not voted for the ANC Youth League. Neither have we voted for President Zuma’s bodyguards. We have voted for the 400 members of Parliament who must make the laws, laws which must be obeyed by everyone, whether one is the President, a presidential bodyguard or a member of the ANC Youth League.

What bothers me is that the good people in the ANC do not speak out about these tendencies. Only Cosatu makes noises about this, while Ministers and other ANC leaders remain silent. Everybody is too scared of Malema and the security services to say anything. When will the good people in the ANC speak out? How do they go to bed at night when they know that there are members in their organization who are undermining the very democracy for which we have fought?

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