IT IS mind-boggling that there should even be a possibility that either Eugene de Kock or Schabir Shaik might yet be pardoned by President Jacob Zuma .
The rumour mill alleges that if De Kock is pardoned by Zuma, it would make it easier for him to pardon Shaik also. This theory is flawed. Not only has there been no indication from the Presidency that a pardon for De Kock is on the cards, but the notion of a trade- off makes little sense.
For one thing, the categories of crimes committed by De Kock and Shaik respectively are so different that such a trade-off would be blatantly random. Such randomness would betray the lack of rationality in the trade-off and overzealous opponents of Zuma might see a narrow legal opportunity to challenge the administrative justness of the way in which his discretion had been exercised.
For another, it is not clear that there is a pro-De Kock constituency that exists somewhere out there that possesses so much political clout that it needs to be shut up to prevent a fallout should Shaik be pardoned. Quite frankly, if Zuma wanted to pardon Shaik, despite public sentiment to the contrary, he could do so without the help of an irrelevant De Kock or dated racist minorities.
The real question is a much more basic one. Are there good independent reasons to pardon either of these convicted criminals? The answer to this is a definitive “No”.
De Kock was granted a partial amnesty by the Truth and Reconciliation Commission (TRC). A partial amnesty implies that he was judged not to have disclosed his knowledge of, and involvement in, political crimes fully. This opened the way for a lengthy criminal trial in which he was found guilty of human rights abuses, including the murder of at least six people.
He kept watch over the killing of innocent South Africans regarded as enemies of the apartheid state, of which De Kock was a central figure. Some were first killed before being burnt, incinerated, or even blown up to ensure that no scrap of evidence was left. Pardoning such an evil character would be a gross mistake.
One criticism that has been lodged against the TRC process is that retributive justice was too hastily sacrificed on the altar of forgiveness and in the fake name of restoring intergroup relationships.
While it is true that restorative justice during the transition to democracy was widely supported by many South Africans, the deal was clear: amnesty and forgiveness were to be exchanged for full disclosure. Since De Kock did not fully disclose his knowledge of political crimes, the law had then to take its course.
To pardon him now would simply undermine the point of the amnesty hearings and the conditions for being granted a full amnesty.
Restorative justice is a fragile notion. That fragility would give way to breaking point if apartheid actors who did not fully co-operate with the TRC process should be pardoned.
It is also a mistake to think of De Kock as a mere cog in the apartheid wheel. Some have argued that one man should not get all the blame for an entire system that was evil. He was following orders. And, at any rate, many others also followed orders but are now roaming the streets as free men and women. Indeed, many of the political masters to which De Kock was accountable are arguably as morally culpable, yet remain free citizens.
This argument is not totally unconvincing. There is something intuitively unfair about only one evildoer being bust while others get off free. But multiple wrongs do not add up to a justified pardon. If there are people who had committed political crimes but were not granted amnesty then they should be prosecuted. That debate cannot be regarded as settled.
Perhaps most importantly, we need to think more carefully about the relationship between institutions and system, on the one hand, and individual agency on the other.
Of course the apartheid system was evil, but many thousands of sane people chose to execute the evil instructions of their bosses. For this they are responsible. To simply excuse it all away as a “systems failure”, rather than irresponsible choices by ordinary people, is disingenuous.
Certainly, many ordinary people were brainwashed and coerced. But De Kock was not assessed as mentally unfit to stand trial. He appreciated the nature of the acts he committed at the time when he committed them.
He is thus fully culpable and cannot be morally discounted because of the evil system within which he operated. He ought to have resisted that system. He did not and 212 years behind bars is a fitting reward.
Shaik, on the other hand, is not a convicted murderer. He is a convicted fraudster. Comparing violent crime with economic crime is pointless. It might be tempting to regard economic crime as serious but less serious than violent crime. This would be a mistake. Both undermine the fabric of society.
It is particularly important for a developing country to be seen to take a tough stand on corruption. Life in the first instance depends on our material wellbeing. Without food or water, you cannot survive. Economic crimes result in the looting of resources that otherwise would be spent on developing a country. There is a clear correlation between high levels of economic crime and poor standards of living and low life expectancy. Kleptocracy in post-independence Africa provides ample proof. It is therefore extremely important that fraud be rooted out by jailing offenders who do not play by the rules.
Shaik is one such offender.
The matter is made worse by the fact that his fraud stems from a relationship with Zuma. This makes it even more important that he does not get pardoned. Pardoning him would send an unambiguous message that those with friends in high political places can get away with economic crime. It will thereby also constitute an incentive for others to commit economic crime by courting politicians.
Furthermore, there are facts particular to the Shaik case that militate against a pardon. Shaik has been caught failing to comply with his medical parole conditions. This means that not only is Shaik someone who is legally proven to disregard the law, but he is now proven to be willing to disregard the law even after he had been given a reprieve.
Failure to comply with all the medical parole conditions amounts to a brazen arrogance that is no doubt founded in the belief that he is politically untouchable because of the Zuma connection. In this context, the president needs to signal that he is not enslaved by the friendship with his former financial adviser. That can only be achieved by making it clear that a pardon is not on the cards.
Pardons should never be granted lightly. If a conviction resulted from a legal error, for example, then a pardon may be sensible. But where someone is an unrepentant extraordinary criminal (De Kock) or a common criminal (Shaik), then a pardon would be an insult to the millions of law-abiding citizens struggling to make it by playing fair.
Do the right thing, Mr President.
[ This article first appeared in Business Day
http://www.businessday.co.za/articles/Content.aspx?id=91126 ]
Thursday, January 14, 2010
Sunday, January 10, 2010
Liberals must accept polygamy
Polygamy is a sexy topic yet again. It is back on the table for debate thanks to our most famous polygamist, President Jacob Zuma, who married his fifth wife this past week. Some people have an intrinsic hatred of polygamy. They regard it as dated, misogynist, irresponsible in a time of HIV/AIDS and a violation of core constitutional concepts like dignity and equality.
Others, with equal intensity, loathe what they view as the cultural chauvinism of liberals, defending cultural practises as an integral part of the socio-historical reality of too many people. For these supporters of polygamy, such practises must be defended from the liberal tyranny of a constitutional model that is out of touch with the ethical intuitions of the conservative majority.
In such a polarised debate space, with seemingly irreconcilable moral frameworks brought to the discussion table, is moral consensus possible? Or are we stuck with assertion and counter-assertion which can best be described as intractable differences in moral taste? How, if at all, can common ground be reached?
There is, in fact, an important liberal justification for polygamy that critics of the practise – who often think of themselves as subscribing to liberal or progressive moral values – are not aware of. The dichotomy between ‘tradition’ and ‘liberalism’ is hasty and lazy. There are important non-conservative reasons why polygamy should be allowed. Liberals, if they were to think more clearly about what liberalism means and commits them to, would realise that they have to be more accommodating of conservatives if they are to remain true to their own values and principles. Likewise, conservatives who often thoughtlessly regard liberalism as a threat to traditional forms of life, have to face the uncomfortable truth that a proper understanding of liberalism reveals a compassionate (even if qualified) permissiveness on the part of liberalism.
In order to understand this connection between liberalism and tradition, and polygamy in particular, it is of course important to get a clear conceptual grip on liberalism. Terms like ‘progressive’ and ‘liberal’ are bandied about in political discourse, often without clear meaning.
The users of these terms simply hope to evoke positive feelings in readers or listeners rather than making substantive and clear points. It does not really matter how one interprets these inherently tricky concepts – the important thing is to be honest and clear about your own definitions in order to both avoid being misunderstood and to allow for substantive differences and agreements between interlocutors to be clear.
Liberalism regards individual freedom and autonomy as critically important goods that the state should promote and protect. The core justification for this view is that individuals are best placed to know what values and principles they want to endorse and live their lives by. The state should not interfere in the exercise of that autonomy other than, as was argued by John Stuart Mill, to ensure that others’ right to freedom are not infringed. This gives us a framework to explore the ethics of polygamy. Is polygamy consistent with a liberal ethics?
Polygamy certainly is consistent with liberalism. One of the more subtle justifications for liberalism, in addition to and connected with, the premise about respecting individual autonomy, is valuing pluralism. The very point of allowing individuals to be free is to enable them to live the experimental life and settle for life forms that they endorse as worth living. It follows that if some communities wish to endorse polygamy, then this is perfectly permissible.
A liberal society’s liberalism is measured by its tolerance for diversity. There is no reason why polygamy is illiberal in a context where the persons entering into those relationships do so of their own free accord. To take away the moral entitlement to choose such a lifestyle would amount to a violation of liberalism’s commitment to protecting individual autonomy and pluralism.
There is thus no tension between liberalism and polygamy. There is, in fact, a positive relationship: a liberal society must allow for such a practise to be possible.
There is a mixture of principled and practical objections that have been trotted out on this issue. The principled arguments range from the downright silly (such as Kenneth Moeshe’s worry that it is an unchristian practise, as if we live in a Christian state) to more serious worries that values like substantive equality and dignity cannot be squared with polygamy. The serious worry merits attention.
Kenneth Moeshe’s worry deserves a mere parenthetical retort. South Africa is a secular state – for many good reasons - in which church and state is separated and so it would be unacceptable for any denomination’s moral code to be domesticated as national law.
Concerns about substantive equality are much more serious. If only men are allowed to enter into concurrent relationships with many female partners, then the practise is a violation of women’s right to equality. This means that anyone who wants to hang onto a liberal justification for polygamy must accept that both men and women should be allowed to enter into such relationships. Many supporters of polygamy will resist this move. They cannot have their liberal cake and eat it. They would have to find some other basis for their sexist views.
The strongest type of objections to polygamy, however, is practical rather than principled. One worry is the very real fear that concurrent relationships should not be encouraged in the context of the HIV/AIDS pandemic. When the political head of the country leads such negative messaging by engaging in concurrent sexual relationships with his wives – presumably – then it is not unreasonable to regard such leadership as irresponsible. It also becomes reasonable to consider discouraging polygamy in society more generally as part of the fight against the pandemic.
This is a tricky objection to negotiate. It is obviously desirable that all reasonable measures be taken to deal the pandemic a death blow. Messaging about responsible sexual practises are central to this strategy. However, if the value that is placed on polygamy by some individuals and some communities are as deep and serious as appear to be the case, then a ‘second best’ strategy is to encourage safe sexual practises within polygamous relationships. Concurrent relationships are not ideal. But such relationships are not inherently inimical to halting the spread of HIV.
Messaging about HIV/AIDS must be evidence-based in the context of the social realities of ordinary people rather than pretending that an ideal reality can be created. So if polygamy is valued and ethically permissible and happens, then focusing on encouraging safe sex within these relationships must be a core part of our fight against the pandemic. Discouraging tradition is not essential.
The second worry is that, in practise, women are forced into polygamous relationships all too often. It is myth to imagine that full consent is routinely obtained and autonomy exercised by women as prescribed by some long-dead Western philosopher. In the real world, in the rural hinterlands where columnists, academics and even political leaders often do not tread, many young girls and women are forced or pressurised into such relationships. Many who are not physically forced, are constrained by their economic disempowerment. Not all women have university degrees and the capacity to live independently - like the President’s latest spouse.
Are these practical worries decisive? It is always difficult to assess the impact of practical considerations on ethical debates. How many practical concerns need to be stacked up before a practise should be banned or discouraged regardless of principled justifications?
Take a parallel example – how many boys will have to die in the Eastern Cape during initiation ceremonies before the death toll justify stopping the practise even if in principle there are important justifications for allowing cultural practises that are integral to a community’s identity?
In the case of polygamy, I cannot proclaim to know the practical facts intimately enough to offer a view. A qualified view is that, certainly, should well-researched and peer-reviewed social science studies – or even compelling cumulative anecdotal evidence – reveal that in practise too many women are abused in polygamous relationships and, furthermore, that practical interventions to stop such gender abuse are not possible or continue to fail, then we will have good reason to discourage the practise.
If there are only a handful of abuses, and these can be dealt with without throwing the cultural practise out of the window, then the life form should remain as one that can legitimately be chosen by people who deem it valuable. The polygamy debate would benefit from robust empirical evidence on this point.
What has seemed like deep disagreement between traditionalists and liberals turns out to be superficial disagreement. Liberalism and pluralism are core values that our liberal constitutional model is based on. These liberal values form the basis of a liberal justification for allowing polygamy. Traditionalists, in their turn, may curiously come to learn that the protection of their non-liberal, communitarian life forms are often best protected in a moral and political system based on liberalism and not conservatism.
In the end, however, this interesting principled consensus between liberals and traditionalists need to be informed by empirical facts. If polygamy is shown to systemically enslave women and such ills cannot be practically arrested, then the principled defences of polygamy collapse under the weight of practical burden.
[ This article was published in Sunday Independent on 10 January 2010 ]
Others, with equal intensity, loathe what they view as the cultural chauvinism of liberals, defending cultural practises as an integral part of the socio-historical reality of too many people. For these supporters of polygamy, such practises must be defended from the liberal tyranny of a constitutional model that is out of touch with the ethical intuitions of the conservative majority.
In such a polarised debate space, with seemingly irreconcilable moral frameworks brought to the discussion table, is moral consensus possible? Or are we stuck with assertion and counter-assertion which can best be described as intractable differences in moral taste? How, if at all, can common ground be reached?
There is, in fact, an important liberal justification for polygamy that critics of the practise – who often think of themselves as subscribing to liberal or progressive moral values – are not aware of. The dichotomy between ‘tradition’ and ‘liberalism’ is hasty and lazy. There are important non-conservative reasons why polygamy should be allowed. Liberals, if they were to think more clearly about what liberalism means and commits them to, would realise that they have to be more accommodating of conservatives if they are to remain true to their own values and principles. Likewise, conservatives who often thoughtlessly regard liberalism as a threat to traditional forms of life, have to face the uncomfortable truth that a proper understanding of liberalism reveals a compassionate (even if qualified) permissiveness on the part of liberalism.
In order to understand this connection between liberalism and tradition, and polygamy in particular, it is of course important to get a clear conceptual grip on liberalism. Terms like ‘progressive’ and ‘liberal’ are bandied about in political discourse, often without clear meaning.
The users of these terms simply hope to evoke positive feelings in readers or listeners rather than making substantive and clear points. It does not really matter how one interprets these inherently tricky concepts – the important thing is to be honest and clear about your own definitions in order to both avoid being misunderstood and to allow for substantive differences and agreements between interlocutors to be clear.
Liberalism regards individual freedom and autonomy as critically important goods that the state should promote and protect. The core justification for this view is that individuals are best placed to know what values and principles they want to endorse and live their lives by. The state should not interfere in the exercise of that autonomy other than, as was argued by John Stuart Mill, to ensure that others’ right to freedom are not infringed. This gives us a framework to explore the ethics of polygamy. Is polygamy consistent with a liberal ethics?
Polygamy certainly is consistent with liberalism. One of the more subtle justifications for liberalism, in addition to and connected with, the premise about respecting individual autonomy, is valuing pluralism. The very point of allowing individuals to be free is to enable them to live the experimental life and settle for life forms that they endorse as worth living. It follows that if some communities wish to endorse polygamy, then this is perfectly permissible.
A liberal society’s liberalism is measured by its tolerance for diversity. There is no reason why polygamy is illiberal in a context where the persons entering into those relationships do so of their own free accord. To take away the moral entitlement to choose such a lifestyle would amount to a violation of liberalism’s commitment to protecting individual autonomy and pluralism.
There is thus no tension between liberalism and polygamy. There is, in fact, a positive relationship: a liberal society must allow for such a practise to be possible.
There is a mixture of principled and practical objections that have been trotted out on this issue. The principled arguments range from the downright silly (such as Kenneth Moeshe’s worry that it is an unchristian practise, as if we live in a Christian state) to more serious worries that values like substantive equality and dignity cannot be squared with polygamy. The serious worry merits attention.
Kenneth Moeshe’s worry deserves a mere parenthetical retort. South Africa is a secular state – for many good reasons - in which church and state is separated and so it would be unacceptable for any denomination’s moral code to be domesticated as national law.
Concerns about substantive equality are much more serious. If only men are allowed to enter into concurrent relationships with many female partners, then the practise is a violation of women’s right to equality. This means that anyone who wants to hang onto a liberal justification for polygamy must accept that both men and women should be allowed to enter into such relationships. Many supporters of polygamy will resist this move. They cannot have their liberal cake and eat it. They would have to find some other basis for their sexist views.
The strongest type of objections to polygamy, however, is practical rather than principled. One worry is the very real fear that concurrent relationships should not be encouraged in the context of the HIV/AIDS pandemic. When the political head of the country leads such negative messaging by engaging in concurrent sexual relationships with his wives – presumably – then it is not unreasonable to regard such leadership as irresponsible. It also becomes reasonable to consider discouraging polygamy in society more generally as part of the fight against the pandemic.
This is a tricky objection to negotiate. It is obviously desirable that all reasonable measures be taken to deal the pandemic a death blow. Messaging about responsible sexual practises are central to this strategy. However, if the value that is placed on polygamy by some individuals and some communities are as deep and serious as appear to be the case, then a ‘second best’ strategy is to encourage safe sexual practises within polygamous relationships. Concurrent relationships are not ideal. But such relationships are not inherently inimical to halting the spread of HIV.
Messaging about HIV/AIDS must be evidence-based in the context of the social realities of ordinary people rather than pretending that an ideal reality can be created. So if polygamy is valued and ethically permissible and happens, then focusing on encouraging safe sex within these relationships must be a core part of our fight against the pandemic. Discouraging tradition is not essential.
The second worry is that, in practise, women are forced into polygamous relationships all too often. It is myth to imagine that full consent is routinely obtained and autonomy exercised by women as prescribed by some long-dead Western philosopher. In the real world, in the rural hinterlands where columnists, academics and even political leaders often do not tread, many young girls and women are forced or pressurised into such relationships. Many who are not physically forced, are constrained by their economic disempowerment. Not all women have university degrees and the capacity to live independently - like the President’s latest spouse.
Are these practical worries decisive? It is always difficult to assess the impact of practical considerations on ethical debates. How many practical concerns need to be stacked up before a practise should be banned or discouraged regardless of principled justifications?
Take a parallel example – how many boys will have to die in the Eastern Cape during initiation ceremonies before the death toll justify stopping the practise even if in principle there are important justifications for allowing cultural practises that are integral to a community’s identity?
In the case of polygamy, I cannot proclaim to know the practical facts intimately enough to offer a view. A qualified view is that, certainly, should well-researched and peer-reviewed social science studies – or even compelling cumulative anecdotal evidence – reveal that in practise too many women are abused in polygamous relationships and, furthermore, that practical interventions to stop such gender abuse are not possible or continue to fail, then we will have good reason to discourage the practise.
If there are only a handful of abuses, and these can be dealt with without throwing the cultural practise out of the window, then the life form should remain as one that can legitimately be chosen by people who deem it valuable. The polygamy debate would benefit from robust empirical evidence on this point.
What has seemed like deep disagreement between traditionalists and liberals turns out to be superficial disagreement. Liberalism and pluralism are core values that our liberal constitutional model is based on. These liberal values form the basis of a liberal justification for allowing polygamy. Traditionalists, in their turn, may curiously come to learn that the protection of their non-liberal, communitarian life forms are often best protected in a moral and political system based on liberalism and not conservatism.
In the end, however, this interesting principled consensus between liberals and traditionalists need to be informed by empirical facts. If polygamy is shown to systemically enslave women and such ills cannot be practically arrested, then the principled defences of polygamy collapse under the weight of practical burden.
[ This article was published in Sunday Independent on 10 January 2010 ]
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