Friday, October 2, 2009

Response to Judge Dennis Davis

In today's edition of Business Day, there appeared a letter by Judge Dennis Davis, in which he stated the following:


It is perhaps churlish of me to take issue with Eusebius McKaiser’s article (September 25) concerning the Judicial Service Commission interviews of candidates for the Constitutional Court. This newspaper was an exception in that almost all other newspapers, in their trivial coverage, failed dismally to inform readers of the nature and implications of the process. By contrast McKaiser employed his considerable talent to interrogate the process and thereby promote a necessary debate about a critical decision for the highest court.
Two aspects prompt this reply. McKaiser finds me guilty of an act of racial grovelling in that I said that I had not applied for the Constitutional Court earlier in that, certainly at the outset, the legitimacy of the judicial institution required demographic representivity and whites should not “be greedy” and understand the historical imperative of transformation.
That was my personal decision; I insisted in my interview that race was a necessary but not sufficient condition for appointment, that it was a travesty to read someone’s identity, multifaceted as it generally is, only by the colour of their skin. My point was that race essentialism is a travesty of the charter tradition and, by indirectly employing Frantz Fanon, I posed the question: is the appointment of Kaizer Matanzima more transformative than that of Joe Slovo?
That is not to diminish the historical imperative of redress or the unfortunate arrogance employed in the discourse of many whites, but it is to insist on a debate about the direction of the journey towards a nonracial society.
My second objection is that because I insisted on the relevance of class in a discussion sadly misunderstood by a number who reported on the interviews, I am accused of doctrinaire certainty ill-suited to an intellectual. I made it clear that I still view this country through a class analysis but mediated by race. However, so much has changed in the past 30 years since I first wrote within this framework that it would be intellectually irresponsible for me not to have changed much that has proved to be wrong. Liberals, as important as their work is, do not have a monopoly upon critical thought.
I certainly hold to the view that all thought should be subjected to rigorous and consistent critique. I try my best to follow this approach, even if like many, I may sound more certain than I really am.
Judge Dennis Davis
Cape Town

I like Judge Davis - I think he is super smart, and most worthy of a job at the constitutional court. In a world in which we had already achieved racial and gender equity, there can be little doubt that he would have made the list of final four that are replacing the folks retiring from the bench. In fact, the article he refers to was by and large an uncritical (and deservingly so) Ode to his interview performance.

I still hold the same flattering views of him, despite the attempts in this letter to unpick two very minor passing comments I had made in that piece.

However, given this letter, I think I should point out that, if anything, I was holding back on the two issues he mentions. Not only do I stick by my observations, I can now actually confess that I understated them in order to focus attention on the political farce that was the 'interview process'. The stuff on class ideology, in the second half of the letter, is a bit opaque, so I will leave that aside, but I do want to comment on the issue of whether or not Judge Davis was indulging in racial grovelling, as I called it. I stick by that description. Here is why:

a) It was actually cringe-worthy hearing Judge Davis desperately trying to appease the brute racialism of some members of the JSC by grovelling - and, yes, I think the word choice is apt. The all-too-easy dismissal of "greedy" fellow white lawyers smacked of the worst kind of self-deprecating white liberalism - subtext: "Black Baas, I knew my place back in 94, unlike those racist fellow whitie colleagues of mine, Black Baas. I hope it is ok that I am only now trying my luck, Black Baas, and only with your kind permission of course..." Etc. Etc. Etc.

b) Judge Davis is right that he went on to articulate a view of race reform that is not a numbers game. He did, indeed, and rightly so, suggest that Slovo would be preferable to Matanzima. Most of us would agree. But EVEN THEN Judge Davis then spent a needless few minutes reassuring the JSC that "I am not saying numbers don't matter!!" [ Insert here your favourite impression of Judge Davis, gesticulating most widly.... ] - There was a desperation in his body language to not - please, Black Baas! - be misunderstood, even though his language was clear as daylight. And sensible. This desperation to qualify, and re-qualify, and re-explain, a clear, and sensible, view on racial transformation was further evidence of the racial grovelling that Judge Davis engaged in. In the best case scenario, it was a strategic response; but Judge Davis dripped with sincerity so I think it is more accurate to ascribe the theatrics as coming from a place deep within.

This is not something to be embarrassed about, Judge Davis. Your interview is simply evidence of the irrational numbers game that the JSC is playing. Your grovelling, instead of pretending it did not happen, should rather be seen as the tragic result of a nation still deep in the grip of a national existential crisis borne of a still-fresh, and still-persisting, racist social history, and fabric.

Denial, however, won't help us get to a nonracist ideal on the other side of the existential crisis. Let's start by being honest, shall we?

The judiciary is in a safe pair of hands

http://www.businessday.co.za/articles/Content.aspx?id=82903

NOW it’s official. Justice Sandile Ngcobo is SA’s new chief justice, in the wake of Justice Pius Langa’s retirement. The question on everyone’s lips is whether Ngcobo is a mere compromise candidate, an alternative to the disastrous possibility of a chief justice John Hlophe on the one hand, and the seemingly too-independent Justice Dikgang Moseneke on the other? Yet, anyone familiar with Ngcobo’s career as an academic, practising lawyer and judge knows all too well it would be lazy and hasty to simply label him “compromise candidate”. He is much more than that, as his achievements attest.

Ngcobo has a deep commitment to participatory democracy. Those who were hoping that he would show an aversion to checking the powers of Parliament and the executive are in for a surprise. In 2006, for example, he handed down a brave judgment in the case of Doctors for Life International versus Speaker of the National Assembly and Others, striking down four health-related acts of Parliament because Parliament had failed to adequately consult the public in its law-making processes. This judgment cemented Ngcobo’s commitment to constitutional supremacy and there is little reason to imagine that the anachronistic doctrine of parliamentary sovereignty might suddenly rear its ugly head again.

This commitment to ensuring the substantive rights of the public are upheld has also been affirmed in private cases. Ngcobo showed commitment to eliminating discriminatory practices in the workplace by insisting in 2000 that South African Airways may not refuse to hire an HIV- positive candidate solely on the grounds that his status may offend passengers. Here, Ngcobo articulated the importance of the application of equality in all spheres of social and commercial life, not just in regulating behaviour between the state and citizens. It is therefore fair to characterise Ngcobo’s jurisprudential contribution as socially progressive and founded in a commitment to seeing state and private action complying with the letter and spirit of the values enshrined in the constitution.

This is not to say, of course, that Ngcobo is a liberal machine whose legal analyses could be easily predicted. In the Thint case, for example, he wrote a dissenting judgment in which he disagreed with the majority’s balance of privacy laws, with the state’s mandate to prosecute crime. He also showed an illiberal attitude in the Jordan case, refusing to decriminalise sex work. It is unsurprising that he displayed a similar flash of illiberalism in a more recent minority judgment that insisted children between the ages of 16 and 18 not be exempted from minimum sentencing guidelines.

While it would be ungenerous to characterise Ngcobo’s jurisprudential convictions as becoming increasingly less progressive , it is clear that he is fiercely intellectually independent, being comfortable to depart from the more regular liberalism of most of his peers.

Of course, being chief justice is not just a matter of lawyerly brilliance. It also requires someone with great administrative finesse. The court roll is lengthening and the jurisdiction of the court widening.

And, as is now old hat, the legal fraternity more widely is yet to recover from the deep racial and ideological divisions that nearly split it into pieces.

Ngcobo is not just fit for purpose because of his intellectual prowess. He is also well-respected among his peers, an attribute that will prove crucial in building a more efficient and more collegial community of professional lawyers. He has a reputation as being extremely hardworking and has an expressed interest in transforming the judiciary.

Transformation, for Ngcobo, will centre not just on questions of race and gender equity, but also sustaining the court’s work ethic, while providing inspirational leadership . We can all sleep more peacefully now: there is likely to be broad jurisprudential continuity with the past 15 years’ jurisprudence.

Ngcobo’s is a safe pair of hands.

Caring for the state of the world makes good business sense

http://www.businessday.co.za/articles/Content.aspx?id=82962
IT IS fascinating to see Nestlé trying to escape blame for its business dealings with Grace Mugabe in Zimbabwe. Defences have ranged from the claim that no CEO could have his finger on the pulse of all operational detail of business units spread across the Milky Way, to more right- wing comment about business’s right to be apolitical. This raises a normative question that cannot be so easily be wished away: do companies have moral obligations at all?

Many people assume that since companies are legal entities, they cannot be susceptible to moral criticism. After all, human beings have bodies and minds, and the basis on which we hold one another morally responsible for this or that is the fact that we reasonably expect of each other to reason and act morally. We have the capacity to think, and we have the necessary free will, it seems, to act in accordance with whichever reasons we deem most persuasive.

It is these capacities to act freely, and to reason morally, that justify attributions of responsibility between human beings.

Companies, being abstract things that do not exist in time and space, do not seem good candidates for moral praise and blame. Morality, it seems, simply does not apply to companies. Right?

Not so. There is no reason to restrict moral norms to human beings. The fact is that companies are not weird creatures. Behind company decisions are those pesky, more familiar human creatures, who do have the capacity to reason about the likely effect of their commercial decisions. Just as companies such as IBM should have foreseen during apartheid how their business dealings with the racist South African government would enhance Hendrik Verwoerd’s capacity to enforce racist laws and policies, so should Nestlé’s management have anticipated that enriching the Mugabes helps to prop up an immoral, thuggish regime.

The whole point of smart sanctions, for example, is to cripple the ability of government leaders and their families to go about their daily lives as if all is well with society at large. These political agreements among the free nations of the world are not intended to be mere political declarations.

They are rightly intended to constrain the actions of signatory countries’ citizens and legal entities in their dealings with immoral political thugs, who have no respect for the substantive rights and wellbeing of their people.

Companies are best thought of as sui generis entities. In other words, they are moral agents, but moral agents of a special kind. Being special — such as not existing in time and space — certainly does not mean, however, that you are exempted from complying with moral and political norms.
The fact is that the behaviour of companies affects social reality. If the Mugabes are able to make a handsome profit from their business dealings, and then parachute into Sandton City for a blissful shopping spree, then they have little reason to think twice about their continued raping of the resources of their country, let alone taking steps to alleviate the suffering of their citizens.
This is not, of course, to single out poor Nestlé. I am not suggesting that you henceforth ignore your chocolate cravings in the name of a business boycott. Goodness knows how many companies are operating in more unambiguously conflict-ridden spaces also without batting a moral eyelid.

But all this does point to a clear gap in the business upbringing of commerce students, and a curriculum gap in the stock modules that are stuffed down the throats of MBA students at business schools.

“Business ethics” would be regarded as oxymoronic by many. But this should not be case. Businesses are social actors whose stakeholders include not only shareholders, but also employees, customers and society at large. While the narrow legal obligation of a company is to maximise shareholder value, the world would be a worse place if legal entities failed to appreciate the effects of their actions on the world from which they, in turn, hope to benefit.
In fact, for the purely selfish reason of ensuring an environment in which their own business dealings can continue to flourish in the long term, businesses should care about the state of the world.

It therefore makes both moral and business sense for companies to care about society.

Wednesday, September 30, 2009

My dear black sista...

...this is an open letter in response to your letter to fellow white colleagues, published in M&G's special Race edition, September 23rd. Recall your disturbing words by clicking on the following link: http://www.mg.co.za/article/2009-09-23-my-dear-white-colleagues

The most disturbing fact about your article is the palpable betrayal of a deep desire for affirmation from white colleagues. I am tempted to have a collection of Biko's writing delivered at your doorstep within the hour - or perhaps Dangarembga's 'Nervous Conditions'? You think, in moaning about white colleagues not remembering your name, or them preferring softball and cycling to soccer, that you are thereby scoring a non-racial goal against their subliminal superiority complexes. Not so. In fact, this desperate plea for an invite to the dinner table, for perfect enunciation of your name, for mixed social sports teams, speaks to a deep inferiority complex within yourself. Your self-worth should not - as is evidently the case - be so heavily dependent on 'their' approval.

No doubt you set out to write a piece of reflective comment that is intended to expose the social, perhaps even psycho-social, dominance of your white colleagues within your workspace.

Yet, in the end, your piece says more about your own psyche, than of those around you. My suspicion is that the editor of this special edition on Race was caught off-guard: should he/she NOT publish your self-deprecating nonsense, that could be cheaply used as evidence in support of your lame convictions; yet, should it be published - as has now disastrously been the case - then you come out looking rather tragic.... and, inadvertently, us readers looking in from the outside are left wondering how far this inferiority complex extends among black colleagues within the M&G. Fortunately, I have good reason to believe 'not very far', though the generality inherent in the unqualified use of the words 'whites' and 'blacks' will deceive many an unknowing reader into thinking otherwise...

You state:

"Sometimes I feel that you do not see my talents and accomplishments; these are overshadowed by the colour of my skin. I might walk with confidence and a bit of a smile sometimes, but I'm not entirely happy. I lose the desire to contribute fully because I am not sure if you believe in me."

Your self-loathing continues:

"I want you to stop grinning every time we walk past each other. I hate it. I feel like you're pretending. I don't trust you and I always watch my mouth around you."

It extends even to your own dinner invite decisions, you say:

"I did not invite you to a Women's Day lunch at my house. I was tempted to, but simply did not think you would want to come, so I settled for black and coloured colleagues."

Your emotional openness is admirable.

But self-actualisation on the part of us black folk requires letting go of the desire that 'whites' should 'believe in [us]'. I'm afraid your piece occassions the importance of your own journey that still remains, not those of would-be white racists. Of course many of your white colleagues may well harbour some of the beliefs and attitudes you attribute to them. I do not know them, and would not defend them. Anyone living in South Africa without blinkers would also have to agree that there is likely truth in your general sense that non-violent expressions of racism - such as pernicious social attitudes in the workplace - persist. Of course they do.

But the crux of my gripe, and inspiration for responding to your piece, Mmanaledi, is that I am saddened by where you are looking for a 'solution'. Self-confidence should stem from self-belief that you are intrinsically worthwhile as a human being - instead, you are wrongly making Other-approval a necessary condition of having dignity. Yes, it's nice to have folks around us respect us, treat us with dignity and affirm our talents as writers, activists, students, politicos, academics, whatever else ... but the near-pathological yearning with which you are silently screaming at your white colleagues as the sole bearers of such affirmation, must be saddending the black consciousnessness corpse of Biko - and others.

Snap out of it sooner rather than later - lest it costs you emotionally on future occassions, too, as it did in this unfortunate article.

I hope never to pick up such a self-loathing instalment on Race again....

Sincerely,
Black-man-not-in-need-of-white-colleagues'-affirmation

Monday, September 28, 2009

On gay leadership, visibility and coming out- twice

“Do you want me to arrange for someone to see you?”

That was my dad’s response during my first ‘coming out’ conversation with him in 1998. Two days before, I had rushed to the post office to send him a letter explaining that I am gay. I had just returned to university after the mid-year break, which included my maiden gay trip to Cape Town. I was in my second year of university, and had recently met a boy on-line. We persuaded his parents that I was a school friend coming to visit for a week. It was an exhilarating experience, travelling all the way to Cape Town to meet a stranger. Everything was perfect – in fact, we are still pretty good friends some ten years later. So my decision to put pen to paper, and share with my family my newly affirmed identity, felt easy. I have no recollection of what detail I wrote on so many pages of writing pad, but vaguely recall including a plea that my dad should not think that my sexuality casts aspersions on him as dad. Why I focused on him, and not my mother, is a mystery I have yet to solve. Two days later, a fellow student at my university residence knocked at my door, and told me that my dad was on the line. I rushed downstairs, and in a conversation that lasted thirty seconds – interrupted by tears – I fielded a couple of clumsy questions, before hanging up.

“Are you sure?” Yes dad.

“Is it not just the friends you hang out with”? No, most of them are straight.

“Do you want me to arrange for someone to see you?” No.

Tears followed, and a muffled agreement that we would chat again. I walked painfully slowly up the stairs, and collapsed on my bed, filled with a mixture of relief, and fear. Fear, not of rejection, but of acceptance. There was nothing I wanted more at that moment than him calling me back to say that he never wanted to see me again. That, I figured, would give me enough moral high ground to be justified in turning my back on him and the rest of the family. I feared that his sincere attempt at acceptance, complete with tears and ignorant questions, would simply make me feel guilty about his emotional grappling. Fortunately I had already been wrestling with tough questions about the moral acceptability of homosexuality for a while, and had happily concluded that there is no reason why I should desist from embracing my same-sex attraction. I resolved never to legitimise anyone’s homophobia by giving them ‘space’ to decide whether or not they are happy with me being me. My family’s homophobia was no exception. Their journey, I decided, is not mine. After all, I was not asking them to accept me as a paedophile, and it would therefore be an act of self-hatred to give them space to ‘deal’ with my authenticity.

Yet, I also felt a sense of relief. Having grown up in a conservative working-class Catholic community, I had to put a secret lid on desire. In fact, for years after my first coming out I had spasms of recollection about early experiences of same-sex attraction going back to primary school. In a sea of conservative lies, however, gay teenagers are rendered invisible. I too was invisible - even to myself. The freedom of a liberal university campus – I attended Rhodes University – saved me from a life of self-hatred and dishonesty. Thinking the words “I am gay” for the first time, felt honest, and overbearingly liberating.

But I am lucky. The majority of gay and lesbian men and women, and teenagers, in this country of ours with its much celebrated liberal laws, might never set out on a journey towards self-actualisation, let alone reaching that destination. ‘Coming out’ is not easy when your lived reality is imbued with homophobia. I have had the dual benefits of a very stubborn personality that places principle and argument above practical consequence, and a dash of middle class power that affords me the option to only live within our pockets of liberalism. Black lesbian soccer stars in townships around the country are confined to a more violent reality. The question this raises, is what we can do to move our society closer to a place in which gay rights are enjoyed substantively by all gay men and women, not just those able to buy equality. How, in other words, can the liberal vision of the constitution become a felt reality for gay men and women living outside the confines of middle class South Africa?

Visible black gay leadership is a critical part of the answer. By leadership I do not mean that grand, national parades should be organised. These help, but homophobia lurks most perniciously in our homes, our offices, our coffee shops, and our hearts. Leadership therefore includes micro acts, such as gently engaging homophobic attitudes when they manifest themselves in the actions and conversations of those around us. This is not to say that gay men and women, and their allies, should become thought police. But it does mean that we should demonstrate courageous personal leadership by doing our bit, within the social spaces we move, to challenge and engage false beliefs about, and pernicious attitudes towards, gay people. A talk at a school, by an openly gay person from that community, can potentially be more effective in engaging that community’s attitude towards gay people, than dishing out copies of our beloved constitution.

Visibility is key. One of the falsehoods that are believed throughout the continent is that gay persons do not exist. Some vary this claim by believing that only Westerners are gay and that any gay activity in Africa results from immoral Western influence. The most powerful tool for dealing such views a deathblow, is visibility. This is not easy when violence and ostracisation stare you in the face. But it would be needlessly pessimistic, and even condescending, to imagine that every single person with homophobic views, are beyond the pale. The power of staring someone in the face, and speaking to your feelings and desires, should not be underestimated. This will not result in homo-tolerance on the spot. But, the truth of visibility – the truth of seeing a gay man or woman still being the same character you have always known, ‘despite’ their being gay – is the best tactic for debunking the false belief that gay Africans do not exist.

I have seen the effect of this visibility on my own family and friends. My father has successfully travelled from a position of deep denial to a place of warm embrace. While I do not regret demanding that he ‘deal’ with his homophobia without my assistance, it was no doubt the realness of my visible gay self that enabled, and perhaps even compelled, him to shift from a discourse that medicalises my identity, to one that accepts it as a nonchalant fact about me. And of course it was not easy. I had to come out a second time, years after my first coming out. Parents often console themselves with the belief that their teenage kids are going through a phase, and that a blissful straight life, complete with 1.5 kids, awaits them on the other side of experimentation. It is after coming out a second time (like when boyfriend comes home for Christmas), that the gay penny finally drops. This is why visibility is crucial – it challenges the assumption that our same-sex attraction is temporary, like a passing headache. By remaining invisible, one inadvertently reinforces the very belief you wish to dismantle, the assertion that you, gay man or lesbian woman, do not exist.

Last, it is important that this visible leadership be taken up by black gay people in particular. It is not effective to have a Londoner arrive in Soweto and give a soliloquy on homosexuality. Black men and women need to take the lead, especially since most of the violent expressions of homophobia prevail within black communities. It would help immensely if black gay persons in business, entertainment, the academy, politics, media and sport, started living open lives. My personal challenge to fellow black gay men and women who quietly occupy positions within these public spheres is to reflect on the transformative power of visible black gay leadership that lie in your hands. Visibility can result in greater acceptance of gay persons, beyond the confines of liberal middle class enclaves. It can, and will, save lives also.