WHAT is our common national South African identity? President Jacob Zuma reportedly wants us to debate this question and also to consider the essence of “the South African moral code”. He is worried that despite the constitution’s yearning for us to be united in diversity we are simply continuing to see things differently.
These questions are worth engaging because many of us ponder who and what we are as a nation around dinner tables but less so in the public space. This is a first bite at the president’s cherry.
The search for a common national South African identity is silly. It is conceptually dodgy. It is also practically dangerous. As for linking morality with national identity, that is a connection that is badly conceived. How, you might wonder, did I arrive at these pessimistic convictions?
The starting point is the very diversity that the president refers to. Diversity is a fact of our constitutional life. The constitution is a document that imagines a society in which there are many different life forms. It cherishes diversity, but not because diversity is pretty for its own sake like a bunch of different flowers quaintly arranged in a vase. More importantly, diversity is cherished on the basis that it is important to give individuals space to live as they see fit, short of them trampling on others’ right to the same entitlement.
This is where the conceptual headaches for nationalists come in. You cannot, on the one hand, cherish the freedom of individuals to decide their own identities and on the other hand tell them there is a list of things one must value or do in order to be more or less South African. Diversity’s value is in part derived from the premise that identities should be self-chosen.
A national identity presupposes there is an objective, singular identity that constitutes the South African identity. Promoting diversity then implies undermining the promotion of a national identity. This conceptual migraine cannot be escaped.
Practically, what does a common South African national identity refer to? Do I have to like rugby? Soccer? Cricket? Must I have a braai at least once a month? Koeksisters on Sunday? Obsess about race, perhaps? Cry while watching reruns of the 1995 Rugby World Cup and the following day threaten to leave for Sydney in a fit of seemingly typical South African mania?
The problem is obvious. If you throw too many goodies into your list of things that make us South African, then you will exclude many people. Or, rather bizarrely, it means that all of us will come out being part-time South Africans since only some stuff will apply to each of us and even then only some of the time. On the other hand, if you define the list of things rather broadly, perhaps claiming that South Africans are generous or friendly or sports-loving, the rest of the world will rightly tell us to go jump off the nearest cliff for having the audacity to claim that we have a monopoly on these feel-good values.
What is the implication of this?
When our constitution speaks of “unity in diversity” it is mercifully not to be understood as demanding that we fake unity. It should be interpreted to mean “unity” captures our willingness to respect the guy next door’s right to be who he wants to be. It is not an agreement to sing from the same hymn sheet so much as consensus that all should be allowed to decide whether and what they would like to sing.
Given our history, we should we be grateful that by and large we have gravitated towards that kind of consensus. I might not agree with your assessment of the bull’s entitlement not to be killed, but I recognise the importance of giving you the space to take part in a cultural event that might involve such killing in appropriate circumstances.
A common national South African identity is therefore clearly not possible. It is therefore also dangerous that we keep trying so awfully hard to find it. It is dangerous because as a society that loves moving between extremes of loving and hating itself, the search for something that does not exist is a good recipe for the next bout of national depression.
Indeed, many of us, especially media- ordained elders of the nation, self-flagellate for having abandoned Archbishop Emeritus Desmond Tutu’s rainbow nation identity. Yet, what we should be realising now is that the early democratic motif of rainbow nation unity was a bogus notion. It was a placebo we swallowed that helped to make the transition to democracy and settling into that democracy less painful than it might otherwise have been. Now it is time to grow up and realise that nationalism is overrated and at any rate not necessary.
What is the alternative?
Recognising that there is a much smaller set of overlapping values, which we all should respect. And they have nothing to do with a national identity as such. We need to respect the cultural rights that all are entitled to, for example. We need to respect everyone’s right to speak their mind on important issues as opposed to, say, kicking them out of Parliament. In short, we should interpret the constitution as envisioning a society that is progressive in the sense that it opens up maximum space for individuals and smaller communities within its borders to live authentically chosen lives. The idea of a grand national narrative and a grand national identity is a jingoistic ideal that is, by contrast, conceptually weak, practically dangerous and increasingly dated the world over.
As for the president’s attempt to build a bridge from morality to national identity, by asking us to define “the South African moral code”, that too is a mistaken journey to embark on. Views about morality are simply too numerous and often incompatible to find expression in a code of morality unless that code is so vague and so broad in its language as to be practically useless as a guide for what we should do in this or that situation.
We are a diverse secular state that allows Christians, Jews, Muslims, atheists, agnostics and others to be who they want to be. Whatever morals underpin the constitution derive from those few principles that all rational beings must accept as necessary for society to be a stable entity. Any morals or principles that are more comprehensive, like a Christian view on marriage or a Buddhist view on prayer, will smack of unreasonably promoting one substantive moral outlook over another. We should rather stick to promoting and respecting the rights in the constitution that allow for different moralities to be possible within the private spheres of individual and community lives.
So, to answer the president bluntly, we must recognise that a common national identity is neither possible nor desirable. Many countries wrongly imagine otherwise, including diverse societies such as England and the US. We can set a global example by fearlessly defining a common national identity, if we really must, as the rejection of oneness and the embrace of diversity.
Saturday, February 27, 2010
Friday, February 26, 2010
Ruling has implications for Shaik and De Kock
THE Constitutional Court decided to be agnostic on two legal and political hot potatoes — and these two hot potatoes are called Schabir Shaik and Eugene de Kock.
Instead of pre-emptively discussing its findings in a possible future case about whether or not the president should ask De Kock’s victims what they think about the possibility of his release, the court restricted itself to the very specific group of prisoners that was the object of the case before it. Yet, if we rehearse the decision and rationale behind it, important legal and ethical implications for how the president handles other pardons seem to follow.
The case before it is, of course, of critical legal and sociopolitical significance in its own right. In terms of “unfinished business” related to the Truth and Reconciliation Commission’s (TRC’s) attempt to engender reconciliation across the nation, the president had decided to consider pardoning certain prisoners whose deeds fell within the political scope of TRC work.
The basic thinking is that doing so would help to take care of “unfinished” business by presumably strengthening reconciliation. The problem, however, is that this is being done by fiat. The input of the victims and their families was not deemed necessary. The Constitutional Court disagreed.
In essence, the court decided that there must be a rational connection between the aim of granting these special pardons and the process by which it is decided who among the applicants should be pardoned.
In relation to the victims and their families, the legal question then becomes whether this principle of legality would still be respected in the absence of consulting the victims. But it is obvious that if the aim of the pardons is to promote reconciliation, then the demand of the victims to be heard is one that bears a rational connection with the aim of reconciliation.
After all, reconciliation by definition involves two parties and can only be achieved if they are on the same psychological wavelength about their previously broken relationship now having been restored. So we have yet another spot-on confirmation by the Constitutional Court.
Now the real fun starts, however. The wider question is whether this reasoning applies to other applicants for pardoning. And, of course, the big elephants in the room are Shaik and De Kock.
Since the application was for a special category of prisoners in relation to a unique politico-historical process, the Constitutional Court strategically bypassed the need to opine on the constitutional question beyond its focus. But let us reject the court’s agnosticism and speculate.
First, it seems that at the very least this decision develops the one asserted less bluntly in the Hugo case — that the principle of legality demands that the president makes rational decisions when he exercises prerogative powers. This matters.
Actually, it helps both the president and the rest of us. We get at least a formal guarantee that undue influence is minimised by the requirement of rationality. The president, in turn, gets to have an excuse not to behave unethically by being able to say to an old friend, “Mate, I’d love to pardon you for taking care of the car-wash ticket, but I don’t have a fake set of reasons to give my peeps. Can I give your brother a job instead?”
This sort of guideline does not override the freedom of the president to offer pardons, but it does rightly constrain that power by the light of fundamental principles such as that of legality.
Second, however legally accurate, the court is being convenient in pointing to the unique historical nature of the case before it. How can it not see the obvious similarity with a case like that of De Kock?
De Kock has a whole bunch of victims and their families who have experienced identical grief and loss to that suffered by the victims of the prisoners whose case is before the court. Indeed, the grief is not just of the same kind and the same intensity, it also stems from the same historical context, at least in De Kock’s case. For this reason, I would predict that a reasonable argument can be made in future for why the decision of this week’s case, and much of the rationale for it, should apply identically to a case about the right of victims to be heard on the possible De Kock pardon.
Last, even if a legal argument cannot be sustained for excavating the analysis from this week’s judgment and throwing it at the De Kock matter, the ethical and political pressure to listen to the public’s input has been strengthened.
If we take the constitutional principles at the heart of our democracy seriously, then we need constant dialogue between the state and citizens about decisions that will affect the health of intergroup relations.
The conclusion is therefore irresistible. Even if Jacob Zuma should survive a legal challenge to also hear the victims of De Kock about that potential pardon, he cannot survive the moral and political entitlement that victims have to express their view. If he is astute, furthermore, he would ask them voluntarily to express a view and take the responses genuinely seriously rather than treating it as just an exercise in procedural democracy. I will not hold my breath.
Instead of pre-emptively discussing its findings in a possible future case about whether or not the president should ask De Kock’s victims what they think about the possibility of his release, the court restricted itself to the very specific group of prisoners that was the object of the case before it. Yet, if we rehearse the decision and rationale behind it, important legal and ethical implications for how the president handles other pardons seem to follow.
The case before it is, of course, of critical legal and sociopolitical significance in its own right. In terms of “unfinished business” related to the Truth and Reconciliation Commission’s (TRC’s) attempt to engender reconciliation across the nation, the president had decided to consider pardoning certain prisoners whose deeds fell within the political scope of TRC work.
The basic thinking is that doing so would help to take care of “unfinished” business by presumably strengthening reconciliation. The problem, however, is that this is being done by fiat. The input of the victims and their families was not deemed necessary. The Constitutional Court disagreed.
In essence, the court decided that there must be a rational connection between the aim of granting these special pardons and the process by which it is decided who among the applicants should be pardoned.
In relation to the victims and their families, the legal question then becomes whether this principle of legality would still be respected in the absence of consulting the victims. But it is obvious that if the aim of the pardons is to promote reconciliation, then the demand of the victims to be heard is one that bears a rational connection with the aim of reconciliation.
After all, reconciliation by definition involves two parties and can only be achieved if they are on the same psychological wavelength about their previously broken relationship now having been restored. So we have yet another spot-on confirmation by the Constitutional Court.
Now the real fun starts, however. The wider question is whether this reasoning applies to other applicants for pardoning. And, of course, the big elephants in the room are Shaik and De Kock.
Since the application was for a special category of prisoners in relation to a unique politico-historical process, the Constitutional Court strategically bypassed the need to opine on the constitutional question beyond its focus. But let us reject the court’s agnosticism and speculate.
First, it seems that at the very least this decision develops the one asserted less bluntly in the Hugo case — that the principle of legality demands that the president makes rational decisions when he exercises prerogative powers. This matters.
Actually, it helps both the president and the rest of us. We get at least a formal guarantee that undue influence is minimised by the requirement of rationality. The president, in turn, gets to have an excuse not to behave unethically by being able to say to an old friend, “Mate, I’d love to pardon you for taking care of the car-wash ticket, but I don’t have a fake set of reasons to give my peeps. Can I give your brother a job instead?”
This sort of guideline does not override the freedom of the president to offer pardons, but it does rightly constrain that power by the light of fundamental principles such as that of legality.
Second, however legally accurate, the court is being convenient in pointing to the unique historical nature of the case before it. How can it not see the obvious similarity with a case like that of De Kock?
De Kock has a whole bunch of victims and their families who have experienced identical grief and loss to that suffered by the victims of the prisoners whose case is before the court. Indeed, the grief is not just of the same kind and the same intensity, it also stems from the same historical context, at least in De Kock’s case. For this reason, I would predict that a reasonable argument can be made in future for why the decision of this week’s case, and much of the rationale for it, should apply identically to a case about the right of victims to be heard on the possible De Kock pardon.
Last, even if a legal argument cannot be sustained for excavating the analysis from this week’s judgment and throwing it at the De Kock matter, the ethical and political pressure to listen to the public’s input has been strengthened.
If we take the constitutional principles at the heart of our democracy seriously, then we need constant dialogue between the state and citizens about decisions that will affect the health of intergroup relations.
The conclusion is therefore irresistible. Even if Jacob Zuma should survive a legal challenge to also hear the victims of De Kock about that potential pardon, he cannot survive the moral and political entitlement that victims have to express their view. If he is astute, furthermore, he would ask them voluntarily to express a view and take the responses genuinely seriously rather than treating it as just an exercise in procedural democracy. I will not hold my breath.
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