The madness of Floyd Shivambu

I just got off the phone with an Australian journalist who produces a weekly television news programme. She is doing background research about our country (unlike some British columnists) with a view to putting together a story about what lurks beneath the glitz and glamour of the Soccer World Cup. She put me in an awful predicament, one I never fail to escape when speaking to foreign correspondents about South Africa. Do I defeat prejudices about the state of our nation in a fit of sunshine commentary? Or do I ignore how the facts will be spun and simply put them out there? Integrity demands honesty and so I shared the illustrative madness of the African National Congress Youth League's Floyd Shivambu when we got stuck into a conversation about media freedom.

We need to stop gloating about being a reasonably robust democracy in terms of the formal or procedural benchmarks of democracy and democratisation. Of course formal democracy is a great achievement, not least when one considers the deep anti-democratic history we have inherited as well as the lack of democratic beacons in our geopolitical region. I don't want to be lackadaisical, therefore, about such things as substantively free and fair, regular elections or a multiparty electoral system or a reasonably independent judiciary. They all matter.

However, we must set the bar much higher. The question now is whether we are entrenching a deeper democratic culture that will ensure we graduate from formal democratic success to an indestructible democratic culture. This requires all of us to show a serious understanding of what it means to respect fundamental rights and values envisioned and enshrined in the constitution. On this score, we are not doing sufficiently well as a nation. We all pay lip service (on most days but not always) to constitutionalism (which is a good start, I guess) but not all of us appreciate what it means to take constitutionalism to heart.

This brings me to the thuggish behaviour of Floyd Shivambu, the ANCYL's spokesperson. Here is a classic example of someone not understanding the difference between merely paying lip service to a right (and even this he does badly) and actually respecting others' entitlement to substantive enjoyment of that right. I am, of course, talking about his thuggish disregard of what press freedom means. It is worth unpacking his madness because it is not isolated; it is sadly only one example from a pattern of anti-democratic actions that are emerging in our body politic. We need to root it out quickly.

In a series of incoherent public statements (both press releases and media appearances), Shivambu (and his fellow Youth League leadership) has been launching a blatant attack on political journalists, threatening to reveal unsavoury details about their lives, ranging from allegations of laws that had been broken (such as the money laundering charges against a City Press journalist) to salacious and possibly embarrassing facts about folks' sex lives, financial delinquency and other truths or falsehoods that have no apparent bearing on their professional lives.

One justification they give for these threats is the disingenuous claim that they are simply being virtuous citizens by exposing lawbreakers. Another, more honest reason, is the reported retort by Shivambu that if the media could investigate Malema, then the ANCYL can investigate the media. This is bolstered by a proud, reported claim that reliable but conveniently anonymous sources are feeding them information that forms the basis of these threats.

What is really going on here though? And, what does all this mean for press freedom in general?

Firstly, in terms of this particular set of childish threats, it is not rocket science to see what is really going on. The buggers simply want investigations into the wealth of Malema to go away. It is a simple and baldly violent tactic, "You ask too many questions, we destroy your life. You are warned!"

It is obvious that that is what they are aiming at. If this was not the motive, then why the heck is it taking so long for them to hand over these secret dossiers about dodgy, lawbreaking journalists to the police? Concerned citizens do not sit on such sensitive information that can help law enforcement officers beat crime. Concerned citizens simply go straight to the police as soon as these horrific files land in the post (without a return address, even). Of course, self-interested politicians with skeletons to protect do not hand over such data immediately. They use the data perniciously by strategising the question of timing, "Hmmm...if I simply keep threatening to hand over stuff, maybe I can cause enough panic to make these silly stories disappear?!" So, Mr Shivambu, do the honourable thing and share the content of the file(s) with the police. I suspect you won't since that will defeat the political game that this is all really about.

Furthermore, why not report these journalists to their editors and the Press Ombudsman first? One case, of course, is already before the Ombudsman but the battery of charges from the last days have not all been brought to the attention of the industry gatekeepers. Why not? Methinks that Shivambu is not keen on an impartial assessment of these claims. It is better to hope for a victory in the unpredictable court of public opinion instead. Of course journalists are human beings and so capable of both poor judgment and even unethical behaviour. But there are structures and norms and processes in place that responsible public figures who feel aggrieved can access thereby ensuring justice - if their claims stick - while not eroding substantive press freedom. The question is why an informed politico like Shivambu would rather launch a public attack off the proverbial bat? I wonder?

Equally disturbing (for folks claiming to be motivated only by a moral duty to expose lawbreakers) is the hypocritical disregard of laws that probably had to be violated for such personal details to be put together and made public. If, by his own admission, his sources are reliable then, logically speaking, Shivambu is implying that he knows the identity of those feeding him the information. This not only undermines initial claims of anonymous sources but also raises the question of why he is doing what any concerned citizen ought to do which is to (also) report those folks to their bosses or even to the police. Unless, of course, it is in your interest to ignore such unethical and probably illegal activity, and maybe even - who knows - if you, uhm, have something incriminating to hide from venturing into that territory....

It all boils down to one simple reality: local investigative journalism, as Anton Harber rightly praised this week, is doing pretty decently these days. And the politicians resent this journalistic excellence. That is what is motivating this madness, so let's not be fooled by a fake sense of citizenship duty.

Finally, in order to understand the wider implications for press freedom we need to return to the distinction between formal democracy and substantive democracy. Press freedom does not only mean that you don't arrest or kill journalists. And it does not only mean that you make yourself available for a radio interview. That is formal press freedom. Substantive press freedom means that you contribute to honest and robust debate by respecting the media's right to operate within a space in which they can, without fear or favour, investigate and produce work to the highest levels of professional excellence.

Bullying, for example, can take all sorts of forms that are not illegal (such as threatening to share a fact about someone's sex life) which undermines a culture of press freedom. That is exactly what Shivambu's actions and threats achieve. I shudder to think how many journalists are already censoring themselves for fear of having facts and allegations about their personal lives exposed. This, in turn, decreases the likelihood of sensitive political stories being selected for investigation. The net impact on our democracy is negative. One role - among many - that the media should be performing is acting as an accountability mechanism. It cannot do that in a climate of fear and intimidation.

If Shivambu understands that respect for press freedom requires him to allow for, and cherish, space for robust investigative journalism, then he will simply leave journalists alone so that they can get on with it. If he doesn't, then maybe our feisty investigative journalists should deliver him a gentle warning written in sexy, curvaceous but anonymous (yet reliable) handwriting on the inside of a brown envelope saying, "You next!"

Shoddy law means Malema may get off the 'hate' hook

JULIUS Malema has finally succeeded in violating legally acceptable speech. The Equality Court has deemed that his callous claim that women who spend the night, wait for breakfast and ask for taxi money had a nice time constitutes hate speech.

The backdrop to this comment was the Jacob Zuma rape trial, and the woman being referred to by the African National Congress Youth League president was the one who had laid charges of rape against Zuma. Predictably, instead of getting on with paying the fine that has been meted out and unreservedly apologising for his inappropriate comments, Malema is doing what he knows best, continuing with unabated verbal arrogance by vowing to appeal against the judgment.

This raises two critically important questions. What are the prospects of an appeal succeeding? And what are the wider implications of this case, whatever the outcome of an appeal?

There might well be some prospects of a successful appeal. Not because it is patently clear that the magistrate has made incorrect factual findings and so misapplied the test for hate speech, but rather because the Equality Act itself is a shoddily drafted piece of legislation with clauses that can reasonably be interpreted in differing ways.

A shrewd lawyer could mount an appeal on the basis that the magistrate’s interpretation of the act is wrong. Alternatively, the constitutionality of the offending clause itself could be challenged.

A hermeneutical bone of contention can be found in the wording of the act, in section 10(1) in particular. This section forbids speech that “could reasonably be construed to demonstrate a clear intention” to promote or propagate hatred. This wording is unforgivably imprecise in a number of ways.

On the face of it, it seems to mix an objective test with a subjective one.

The first part of the clause — “could reasonably be construed” — implies that a “reasonable person test” is all that matters. In other words, we need only ask what a reasonable person listening to Malema would have heard when the words he uttered entered their innocent ears. But such a test would imply that the subjective intention of the speaker is irrelevant.

Yet reference in the latter part of the clause to what was intended —“demonstrate a clear intention” — conveys the confusing impression that the mindset of the speaker is, after all, also relevant in assessing whether the speech constitutes hate speech.

If the latter interpretation of the clause is correct, then Malema’s lawyer could argue that the magistrate faulted by not making and materially considering any findings as to his subjective intentions, and therefore the court wrongly bypassed a necessary part of the test for hate speech.

There is a fundamental lack of clarity about what exactly the legislators had intended the test for hate speech to be. This opens up some space for a successful appeal.

In addition to the conflation of an objective and subjective test, there is also a question of whether the ambit of the act is consistent with section 16 of the constitution, which guarantees general freedom of expression but for specific exceptions made in section 16(2).

There are two respects in which the act has a much wider scope than the exceptions laid out in section 16(2).

First, section 16(2) prohibits the advocacy of hatred that is based on a list of specified traits that a group might possess (any one of which counts as illegal speech) including "race, ethnicity, gender or religion”.

Yet, section 10 of the Equality Act does not delineate groups. This is why the group “women who are rape survivors” suddenly counts as a group for purposes of the application of the Equality Act.

But one might argue that this wide construal of vulnerable groups (imagine, for example, a case of left-handed folk feeling aggrieved by hurtful speech about their “unnatural” endowment?) is so wide as to undermine the general provision in favour of freedom of expression in section 16(1).

This is not to endorse Malema’s callous disregard of women’s rights and the plight of abused people in general, but it is to point to the legal sloppiness of the wording in the Equality Act.

Second, section 16(2)(c) makes it clear that speech constitutes hate speech if, and only if, it both advocates hatred and “constitutes incitement to cause harm”. Yet, this latter requirement is absent in the Equality Act.

This means that on an ordinary reading, the Equality Act merely requires a group to reasonably feel hurt by some remark in order for that group to successfully argue that it is at the receiving end of hate speech.

Yet, surely I have a right to hurt tenderpreneurs, for example, with snide remarks about their distasteful habits?

The Equality Act might unintentionally censor me.

In theory, of course, the Constitutional Court may yet come to declare this lower set of criteria for what counts as hate speech to be consistent with section 36 of the constitution, which sets out a test for determining the reasonableness of a right’s limitation.

The mere fact that the Equality Act is much wider than section 16(2) of the constitution is not in itself a decisive basis for establishing its unconstitutionality.

The implication is that Malema may yet successfully appeal against the judgment if his lawyer is skilled enough to articulate these hermeneutical and constitutional considerations with a view to convincing an appeal bench that the lower court had either misinterpreted the Equality Act or relied on an unconstitutional part thereof.

However, the initial reactions from the Malema camp suggest that they may miss these subtleties.

They claim that the facts about what had happened and the context within which the remarks were expressed were misunderstood by the court.

This is a silly strategy. Referring to one person does not mean you are not implying generalities about the group of which that person is a member. I need only be disparaging about “my” black gardener in order to denigrate the entire black population.

Furthermore, the findings in the Zuma rape case are irrelevant. Nothing in that judgment vindicates the veracity of the claims Malema made in reference to alleged rape survivors. An appeal based on contesting the magistrate’s factual findings will falter.

If the Malema camp had more brains, it would have a go at exploiting the cracks in the Equality Act itself.

However, whether or not Malema succeeds in the appeal, the judgment might still be of general significance if it proves to have a chilling effect on politicians.

In other words, even if the appeal succeeds, the initial guilty verdict serves as an incentive to politicians to think twice before uttering bile. Of course, you would have to be grossly naive to imagine that this means the end of Malemaisms, but it is equally difficult to know how many worse forms of hate speech will now be scratched from his impending speeches. It is obviously tragic that the courts are needed to regulate the quality of public debate in this way. But if that is what is needed to normalise political debate in our democracy, then so be it.