Colour theme tricky for an opposition wedding

LAST Sunday, Congress of the People (COPE) leader Mosiuoa Lekota said in an interview on my talk show on Talk Radio 702 that if and when the opposition formed an alliance, it would have to be led by an African. He argued that since the majority of the electorate is African, it stands to reason that an African face would have the best chance of leading such a party to electoral success. Courtesy of the ungodly hour when my show broadcasts, other party leaders may have missed this. It is, however, worth debating Lekota’s viewpoint.

In some ways this is a premature discussion. COPE has yet to have its inaugural elective and policy conferences. By Lekota’s own admission, they are not yet in a position to decide whether to form coalitions, alliances or mergers and, if so, under what conditions. They need to reach conclusions about their own leadership and policy debates.

Similarly, the Independent Democrats (ID) party is in no rush either. The ID has given itself another six months to decide on the details of the matter. The United Democratic Movement has been even quieter about its position.

The Democratic Alliance (DA) is also buying time. In an analogy designed to avoid committing to specifics, DA leader Helen Zille regards her party as engaged to the other lot but has made it clear that she has yet to decide on marriage itself — notwithstanding the fact that engagement usually is a commitment to marry at some point.

Or so one would have thought.

Nevertheless, it is obvious that the reason all these parties are only cautiously optimistic about working together is that any future alliance will require two critical negotiation points to be dealt with successfully.

One is the question of what the ideological and policy content of an alliance should be. Unless the parties are on the same page about the central policy questions, or at least the principles that should inform policy choices, Lekota may find himself serving divorce papers yet again. At some point the parties would have to decide, for example, whether ID leader Patricia de Lille’s “social democratic” philosophy is compatible with Zille’s “open, opportunity society”.

The second negotiation issue centres on leadership. Lekota has now made an opening move. The implication of his opinion is that both Zille and the DA’s parliamentary leader, Athol Trollip, should be happy with roles other than being the main face of an alliance. Is this sensible?

There certainly appears to be disagreement within the DA itself on this matter. At least one very well-placed source within the leadership structure of the DA has told me there is no consensus. Some, like Trollip, and notwithstanding the liberal media’s unreflective excitement about his Xhosa-speaking credentials, are adamant that an alliance must be colour-blind when it comes to debate about who should lead it. Others, such as Zille, are more pragmatic in their recognition that an alliance leader would have to be black for strategic reasons.

In fact, Zille had already previously sought a deal with De Lille in terms of which, had they co-operated in fighting to defeat the African National Congress in the Western Cape, Zille would have been happy for De Lille to be provincial premier. I must confess this surprised me. The very muscular public image, tone and style of Zille suggests a megalomania one might not naturally square with selfless calculations about what is best for the party and for democracy.

Looks, even with the help of Botox, really can deceive.

In the end, it seems the alpha male instinct of white male politicians within the DA, such as Trollip and Western Cape leader Theuns Botha, who behaves as if SA came into race- neutral existence in 1994, may sustain internal disagreement about whether to accept Lekota’s viewpoint. One senses personal career political manoeuvres driving some of this resistance, rather than purely sober calculations about how best to forge an effective opposition alliance. Let’s hope Zille’s men will eventually see the light for the sake of dislodging, or at least threatening, the political monopoly of the ruling ANC alliance.

It is understandable that many of us may be deeply irritated by the claim that an alliance leader must be black. Yes, it is not desirable in an ideal world. But it is regrettably necessary in the world we actually live in. Our electoral results continue to be partly determined by racial identities. Just because we may wish for people to vote purely for a party they think will deliver them bread, or teach them how to bake the stuff, does not mean they will reason accordingly. Many folk who desire a colour-blind society, such as Botha, fail to distinguish idealism from pragmatism. Lekota, on the other hand, is simply being pragmatic.

The headaches are not yet all gone, though. The next question is which black leader should do the leading. Lekota himself is not ideal. His anger alienates. Mbhazima Shilowa is solid but lacks oratorical presence. It should really be De Lille but, like Trevor Manuel in the ANC, she just might not be black enough. Such is political life some 60 years after the birth of the Population Registration Act .

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.

Why there are no South Africans and it's ok

On Wednesday evening I felt like such a bastard. At a great roundtable debate which focused on the possibility of a South African identity, hosted by the Helen Suzman Foundation, I threw an existential bone at the audience by arguing that there are no South Africans. And, furthermore, that that’s ok. The idea of a South African essence strikes me as both incoherent and dangerous. We soon judge others as more or less South African depending on how close to our stipulated prototype of a true South African we deem them to be. However, I was fascinated by a less sceptical possibility that was sketched by fellow analyst William Gumede. It is worth exploring.


He argued that the construction of a national identity is a necessarily political project. While he conceded that the search for a robust notion of South Africanness is a fruitless pursuit, he nonetheless put a second-best option on the table. Political institutions, such as our constitution, should be the basis of a pragmatic answer to the question, ‘Are there South Africans?’ That pragmatic answer rests on two pillars.

First, the achievement of social justice should be a common goal. This is based on the indisputable fact that a majority of South Africans do not yet enjoy social justice in any meaningful, material sense.

Second, if we are to finally achieve social justice some twenty years after Mandela’s release then we need solidarity, and black solidarity in particular, to get us there. But it would seem that any solidarity aimed at achieving social justice requires a sense of national identity or at least some overlapping set of values. Is this view right?


Certainly, there are critically important nuggets of truth in Gumede’s position. The pursuit of social justice has to be understood as a pragmatic project aimed at improving the material lot of the disenfranchised majority. We cannot be happy with brilliant constitutional jurisprudence if it makes no difference to people at the coalface of poverty. Social justice in all its practical glory, rather than a perfectly articulated liberal constitutional vision, must the ultimate yardstick of our democracy’s success.


It is also true that there are important instrumental benefits to be derived from group solidarity. It seems strategically sensible to imagine a South African identity into existence even if group identity is an ontological dream. Take, as an example, the gains made by feminists as a result of strategically imagining themselves to be a cohesive group for purposes of political mobilisation. This analogy lends weight to the Gumede thesis. Solidarity, and black solidarity in particular, should be imagined into political existence as one means of organising people to keep their collective eye focused on the goal of social justice.


Yet, even so, the identity conundrum remains. If we rightly agree that social justice matters, and recognise that it has not yet been achieved, have we thereby stumbled upon a South African identity? It seems to me that identity has nothing to do with social justice. Social justice, though important, is merely a reference to the material conditions that all human beings should enjoy in order to live autonomous and flourishing lives. In a very real sense, the fight for social justice is a fight to enable individuals and communities to live under conditions in which they can choose their own identity. Social justice is not identity. Social justice is a catalyst for authentically chosen identities to emerge.

We should therefore see social justice claims as demands for enablers that can, in their turn, allow for self-chosen identities. We do not want to be philosophical delinquents by conflating the conditions for authentic living with the wholly independent question of what a South African is, if indeed such a creature could ever exist or even be imagined. A common national SA identity therefore cannot be defined as “our collective wish for social justice for all”. That is not an identity claim but rather a description of a virtuous goal.


The same holds for Gumede’s tantalising view on solidarity. The critical question is whether or not solidarity presupposes group identity? It need not. Tommie Shelby, a brilliant black American philosopher, argues in his critically acclaimed book, We who are dark, that black solidarity is possible without relying on substantive conceptions of black identity.

Put simply, Gumede and I do not have to agree on what it means to be “a black man” in the sense of a black man with very particular characteristics in terms of his beliefs, values, music taste, dress sense, accent and the like. All that is needed is the reality that black people share a collective history of being at the receiving end of racist ideology and policies. From this shared history, we can unite to fight the remaining structural obstacles that stop the black majority from being full participants in politically free South Africa.

We can therefore achieve the instrumental benefit of social justice by organising ourselves as a group with a political agenda. But the achievement of this practical goal does not require belief in a non-existing black essence. This insight, extrapolated to the national identity debate, yields a similar conclusion. There are no South Africans. And that’s ok.

Porn, like beauty, is in the eye of the beholder

Minister Lulu Xingwana has rather shamelessly decided to come out of the closet. Next thing we know artists will be allowed to show gay people expressing emotion. But it is all rather confusing. If the reported remarks attributed to her are right - that photographs displaying naked women embracing each other are “immoral, offensive and [goes] against nation-building” - then she is either an immoral homophobe or a philistine who misses the point and place of art and artists in society. Or, possibly, a lethal mixture of both. Either way, I’d rather she had kept these naked prejudices in a closet where they belong.

Not that I am intolerant or anything. Some of my best friends are homophobes who miss the point of art. Still, did the minister have to flaunt her homophobia in public just because she can?

This “anything goes” democracy of ours is getting out of hand. I can only hope there were no kids around when she flaunted. Do we really want children exposed to moving images of homophobia? That undermines nation building and social cohesion.

In fact, such homophobia is worse than bad 1980s German pornography. At least bad pornography does not harm anyone. Or so I think. Homophobia, unfortunately, leads to black lesbian women being killed. Your attitude is not only offensive, minister, it is also deadly. Quite literally.

Besides, just because your lowbrow artistic needs are satisfied by images of a bowl of fruit or flowers with clover leaves engraved on your dining plates, does not mean that my appetite for more engaging, evocative images of intimacy between two women should be disparaged. Your pornographic hell is my aesthetic heaven. It is all subjective. Do not assume that the rest of us saw sex when we looked at those innocuous photographs. It is you have the wandering mind, minister. We had no such naughty thoughts. Do not be a bad influence on us, please.

Real pornographic images are explicit sexual images that aim to arouse a consumer sexually. These images that offended you are not that, minister. If they did generate sexual thoughts in you, then I you must see sex everywhere.

I suspect that you are not actually a philistine. Rather, it is probably the picture of two intimate women that leaves you cold. So much for setting an example of tolerance and acceptance of everyone’s right to love and feel freely.

Even so, being the true liberal that I am, I will risk rebuke from progressive friends and colleagues by defending your right to harbour these irrational homophobic attitudes. But, could you really not have waited till the weekly meeting of your local branch of Intolerant Homophobes before expressing your disapproval for the existence of gay love? Or has your branch’s chairperson been sent to Uganda, perhaps, leaving you no choice but to be the next public spokesperson for bigotry?

Still, minister, presumably you conceive of yourself as a political leader who has an obligation to pay public lip service to our constitutional values, even if you secretly wish the liberal constitutional edifice was less demanding on bigots? For your career’s sake, here is some free advice: be more strategic in when and how you choose to express prejudice and ignorance. Honesty is not always prudent. That is a basic principle of political life you should know by now.

Besides your display of homophobia, it is also distasteful how you blatantly miss the point of art. Artists have to be true to themselves by producing works that reflect how they see the world and not how donors or Big Brother would like them to portray the world. The artist lives an introspective existence in which the work she produces reflects not only her social reality but also her unique take on that reality.

You, minister, would rather the artist become a liar. You do not want her to challenge your prejudices. You want her to confirm your prejudices. Ironically, your reaction has betrayed your prejudices more successfully than her attempt to mainstream same-sex intimacy.

You remind me of Soviet Russia, in fact. Remember how the communist government forced artists to only produce works that will whip up nationalistic fervour? Granted, we got some fantastically majestic, feel-good symphonies as a result. But the price for this was artistic integrity often being thrown into the socialist dustbin. You, too, would rather prescribe to artists what to do. Not explicitly, of course. But through the crafty mechanism of making biased decisions about who to fund depending on what your aesthetic sensibilities are that morning. That is a tragedy.

All works of art are inherently subjective creations. Judgments about the quality of those productions are also inherently subject. My writing, for example, may strike you as verbal pornography. Will you huff and puff about critical writing too? Kindly do not impose your moralising aesthetic preferences on the rest of us. It goes against nation-building. As for what lesbian pornography, I could happily direct you to the real stuff so you can see that the photographs you saw were but fool’s gold. Minister, you ain’t seen nothing yet.

http://www.businessday.co.za/articles/Content.aspx?id=95439

Morality and myths

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.

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.