IRRATIONALITY and intolerance are vices that do not discriminate. They are both colour-blind and apolitical. Over the past three days, for example, they befriended both a member of the African National Congress (ANC) , Gwede Mantashe, and a member of the Afrikaner Weerstandsbeweging (AWB), Andre Visagie.
These men, who quickly became drunk on their friendship with irrationality and intolerance, displayed embarrassing resistance to reasoned debate and tolerance of an interlocutor. After all, reasoned debate and tolerance are enemies of irrationality and intolerance. Both Mantashe and Visagie were on the vicious side. Even good old patriarchy made a cameo appearance, as we will see. Intellectual virtue, it would appear then, is not for our politicians. They prefer personal attack over demonstrating weaknesses in another’s evidence or their reasoning.
The first incident happened at an ANC press conference on Wednesday. Gwede Mantashe, the secretary-general who interacts with the media almost nonstop, and so should know better, dismissed a question from a black journalist by hurling the insult that she was a coconut. The journalist from AFP asked, “Why, after 16 years, is Julius still singing the song ‘kill the boer’?” Mantashe fired back, “I don’t know why Julius should be explaining that song ... I call that a coconut approach where you have a black face, but your interest is white.”
This response is irrational. Being a coconut — whatever that might mean — is no bar to asking a valid question or putting a persuasive argument on the debate table.
Mantashe was also being intolerant. The subtext of his rude dismissal was, “How dare you imply we may be wrong? How dare you, particularly as a fellow black?! And a fellow black woman at that??” This does not count as a rational or tolerant response to the question or its embedded argument. This would be no different to saying that someone who argues that the Equality Act is possibly unconstitutional must be on a Malema payroll. Only a response dismantling someone’s logic or their evidence is good enough.
Of course it is human nature to see the vested interest that someone might have in the conclusion they are arguing for. If I, as a black man, argue for black economic empowerment (BEE), and I am a businessman to boot, it is tempting to focus on the likelihood that I am motivated, at least in part, by the material benefit I stand to enjoy if BEE continues to be implemented. But so what? Vested interest and sound logic are not inherently opposed to one another. We need to stop obsessing about people’s backgrounds, their material or ideological interests in a debate or their personal motivations for arguing this or that. Instead, we should engage the content of their arguments.
The second incident involved Visagie who stormed out of an eNews studio during a recording of this week’s Africa 360 hosted by Chris Maroleng on Wednesday. When an exchange between Visagie and another guest, Lebohang Pheko, got too heated for his liking, he threw the microphone on the floor, and stormed out. But the drama did not end there. He turned back and menacingly and threateningly walked back towards the other guest, threatening her to not dare interrupt him again. It was unclear how she would be punished. Suitably, no doubt.
Some argue that the host did not play a good facilitating role. Maroleng himself may have been patriarchal in protecting “this poor woman”. That may or may not be true. Set that issue aside for now. Visagie, ironically enough, is also displaying intolerance of a similar kind to that of Mantashe. They are united in their patriarchal rejection of a woman’s right to engage men.
In both cases the confluence of race and gender is clear. Whereas Mantashe displayed the worst kind of black male dominance over black women, on Visagie’s part we saw a baasskap mentality that resisted the illegitimate demand of a black female interlocutor to disagree with the baas’s logic. Who could have thought that an ANC member and an AWB member could be united so tragicomically? The patriarchal history of our society, which finds expression in the political arena, can unite even men who otherwise occupy diametrically opposed positions.
What are the lessons to be learnt? The most important one is that we all have a right to speak. A right to speak should not be earned by undergoing a sex change from female to male or bleaching your skin to become white or burning your opposition party membership card to join the ANC. Senior leaders, such as Mantashe, must set an acceptable example. Else organisations like the ANC Youth League will feel justified in following this resistance to reasoned debate, as they did yesterday when they expelled a BBC journalist from a press conference.
Before we can even talk about the technicalities of the rules of logic and practice them on the airwaves and at press conferences, let’s first accept and respect each other’s unqualified right to be part of the national conversation. Deliberative democracy requires us to see and accept each other as equal partners in the debate arena.
Friday, April 9, 2010
Tuesday, April 6, 2010
If 'boer' song did inspire killers, would Malema be culpable?
IF WE assume, purely for the sake of argument, that Eugene TerreBlanche’s alleged killers were inspired by the lyrics “kill the boer”, would that imply that Julius Malema has political blood on his hands? It is not so obvious that this question must be answered in the affirmative. Yet, many who debate the connection between the song and the murder (both those arguing for the connection and those arguing against it) implicitly assume that if a connection came to light, Malema would be politically responsible or blameworthy (at least in part) for the death of TerreBlanche. This assumption is hasty and, in my view, wrong.
First, it seems odd to impute moral or political guilt to someone based on how his or her rhetoric was recklessly misused by some other party. If we applied this principle consistently, we would place undue pressure on each other to take responsibility for other moral agents’ actions which were based on their own moral reasoning about what is right or wrong.
In fact, we would be asking Malema to assume that all black people are simpletons or automatons who should not be trusted as capable of distinguishing right from wrong. This assumption is deeply offensive (because it robs “ordinary” people of moral agency) and also patently false (no one needs a degree or money or power to be responsible for their actions, disaffected farmworkers included).
Consider this analogy. To hold Malema responsible, if it turns out the lyrics inspired the murder, would be about as fair as holding a film maker or artist responsible for the actions of a psychotic teenager who gets inspired by a film or heavy metal song and who then takes a sword to school and kills or assaults anyone crossing his mad path. Imputing direct moral blame to the film maker is misplaced. It is the teen whose agency should be indicted.
Further , the complex psychology he or she possesses is based on the accumulation of a set of life experiences, which cannot be reduced to the trigger of the murder, which may have been the watching of a film. After all, many things can trigger a madman’s madness. Can we really expect each other to know the sensibilities of all our fellow citizens that intimately? That is an unreasonable moral and political burden, surely.
And so, similarly, if it is true that the alleged killers had experienced a history of verbal and physical abuse by TerreBlanche, as they reportedly claim, and that this song triggered their gratuitous response to their own unhappiness, it is unfair to shoot a moral arrow Malema’s way. The farmworkers ought to have known better. They are the sole authors of their own immoral actions.
Perhaps, however, one might think that Malema is at least indirectly blameworthy. He ought to have foreseen the reasonable likelihood of such comments and lyrics leading to murder. Is this assumption correct? And, in such a case, would it follow that he does carry indirect political and moral blame for what happened? Maybe. Again, however, the moral calculus is more complex than seems to be the case at first glance. It depends fundamentally on one’s analysis of just how predictable the effect of a particular song on others may be.
But surely no one could reasonably predict that singing a dated liberation song could lead to death? If it was obvious that such a tragedy will likely result, why did the same proverbially unwashed and uneducated masses (or two of them) not grab an actual machine-gun and attack perceived enemies of President Jacob Zuma when Malema declared a willingness to kill for Zuma way back? This counterfactual speaks volumes. If equally inflammatory songs lead to different outcomes, one of nonviolence and one of murder, then the key moral difference must be in the reasoning and choices of the audience. It is they who should then be the object of moral scorn and not the karaoke singer.
This does not mean that singing the song is morally or politically acceptable. Malema would do us all a huge favour if he stopped the singing. It is creating needless angst. But to jump from these conclusions to the claim that Malema is morally and politically responsible for TerreBlanche’s murder is unjustified.
It is becoming a national hobby in SA to look for every opportunity to have our prejudices confirmed. As a caller to my talk show demanded, quite tellingly, two weeks ago, “Can’t we find Malema guilty of something?” Folks, we need to prepare for the possibility that Malema is not omnipotent.
http://www.businessday.co.za/articles/Content.aspx?id=105377
First, it seems odd to impute moral or political guilt to someone based on how his or her rhetoric was recklessly misused by some other party. If we applied this principle consistently, we would place undue pressure on each other to take responsibility for other moral agents’ actions which were based on their own moral reasoning about what is right or wrong.
In fact, we would be asking Malema to assume that all black people are simpletons or automatons who should not be trusted as capable of distinguishing right from wrong. This assumption is deeply offensive (because it robs “ordinary” people of moral agency) and also patently false (no one needs a degree or money or power to be responsible for their actions, disaffected farmworkers included).
Consider this analogy. To hold Malema responsible, if it turns out the lyrics inspired the murder, would be about as fair as holding a film maker or artist responsible for the actions of a psychotic teenager who gets inspired by a film or heavy metal song and who then takes a sword to school and kills or assaults anyone crossing his mad path. Imputing direct moral blame to the film maker is misplaced. It is the teen whose agency should be indicted.
Further , the complex psychology he or she possesses is based on the accumulation of a set of life experiences, which cannot be reduced to the trigger of the murder, which may have been the watching of a film. After all, many things can trigger a madman’s madness. Can we really expect each other to know the sensibilities of all our fellow citizens that intimately? That is an unreasonable moral and political burden, surely.
And so, similarly, if it is true that the alleged killers had experienced a history of verbal and physical abuse by TerreBlanche, as they reportedly claim, and that this song triggered their gratuitous response to their own unhappiness, it is unfair to shoot a moral arrow Malema’s way. The farmworkers ought to have known better. They are the sole authors of their own immoral actions.
Perhaps, however, one might think that Malema is at least indirectly blameworthy. He ought to have foreseen the reasonable likelihood of such comments and lyrics leading to murder. Is this assumption correct? And, in such a case, would it follow that he does carry indirect political and moral blame for what happened? Maybe. Again, however, the moral calculus is more complex than seems to be the case at first glance. It depends fundamentally on one’s analysis of just how predictable the effect of a particular song on others may be.
But surely no one could reasonably predict that singing a dated liberation song could lead to death? If it was obvious that such a tragedy will likely result, why did the same proverbially unwashed and uneducated masses (or two of them) not grab an actual machine-gun and attack perceived enemies of President Jacob Zuma when Malema declared a willingness to kill for Zuma way back? This counterfactual speaks volumes. If equally inflammatory songs lead to different outcomes, one of nonviolence and one of murder, then the key moral difference must be in the reasoning and choices of the audience. It is they who should then be the object of moral scorn and not the karaoke singer.
This does not mean that singing the song is morally or politically acceptable. Malema would do us all a huge favour if he stopped the singing. It is creating needless angst. But to jump from these conclusions to the claim that Malema is morally and politically responsible for TerreBlanche’s murder is unjustified.
It is becoming a national hobby in SA to look for every opportunity to have our prejudices confirmed. As a caller to my talk show demanded, quite tellingly, two weeks ago, “Can’t we find Malema guilty of something?” Folks, we need to prepare for the possibility that Malema is not omnipotent.
http://www.businessday.co.za/articles/Content.aspx?id=105377
Monday, March 29, 2010
On Hate Speech: Another Lekota-Dexter strategic misstep...
Cope continues to refuse to make the right calls on the right issues at the right time. The latest strategic error is its reaction to last Friday's silly order handed down by Acting Judge Leon Hagryn in the South Gauteng High Court in which the court declared the phrase "kill the boer" unconstitutional and - ipso facto (?) - unlawful. Lekota, no doubt with the help of his foot soldier Dexter, hurried to put out a statement welcoming the court's order. (Well, the Independent Democrats beat them to it; but that's besides the present point.) But the crucial questions now are this: a) is this court order (legally) sound? b) More importantly, does it make political sense for Lekota to be welcoming the court's order with such zeal?
First, the facts. So, a couple of folks who are part of the same anticrime organisation wanted to know what words they could put on a banner. And, disagreeing on the matter, one filed an application to have the court express a view on the legality of the phrase "shoot the boer." The court, without giving reasons, declared the speech as unconsitutional.
The court reportedly ordered:
1. That the utterances and/ or publication of the words "Dubula ibhunu" are unconstitutional/unlawful". "Dubula ibunu" translated means shoot the boer or white man.
2. That the publication and chanting of the words "Dubula ibhunu" prima facie satisfies the crime of incitement.
Hence two questions arise: is this order legally correct? Is Lekota/Cope being politically smart in welcoming it?
On the order: in my opinion this is a poor legal decision. To be fair on the Acting Judge, for now, he did not furnish reasons for his order and, until he does so, full and final disagreement with his decision must wait. But, we can offer some good initial reasons for why it is probably a terrible legal order. Here are just a few:
a) Halgryn does not cite which Act it is in terms of which the speech is illegal; instead, there is simply a direct appeal to the constitution itself. Now, it is possible that he was simply being amazingly concise - lazy? - and meant to imply that the Equality Act (which, in its turn, is an expression of the constitution) had been violated, and that that is all he is picking out in declaring the speech unconstitutional.
However, given how unusual such a direct reference to constitutional provisions are in the ratio of a judgment about a horizontal matter between two citizens, it really would have helped to spell all of this out more clearly, more fully. In the absence of detail, the unqualified declaration of the speech as unconstitutional represents legal magic.
b) It is also unclear whether "intention" and "context" were taken into account. In other words, surely one cannot declare text in ALL contexts to be constitutive of illegal speech? If I use the phrase "kill the boer" in a lecture on the ethics of political speech, for example, does the use of potentially inflammatory language, in THAT context, where I am reporting the speech rather than performing it as an act designed to motivate my audience, constitute an illegal speech act?
I think the intuitive answer is "No...and if it is does amount to hate speech, under current law, then such a law needs to be suitably modified."
The central point is this: the acting judge needed to circumscribe the circumstances under which such speech is not allowed; as it stands, rather oddly, the order implies - on an ordinary reading of the pithy sentences we were given- that the words are banned in any and all contexts. That cannot be right.
These are some of the reasons why the order is shoddy. There may be others too, but the point it made. [ And, incidentally, the African National Congress' gripe is legally odd too: it was not a party to the case, and the court had no legal duty to invite them to court -- how does the ANC think court processes work?! Come on folks; next the judge will be 'invited to explain himself' at Luthuli House...let's keep this clean. ]
Now, given all this .... is Lekota's rush to embrace the judgment politically sensible?
Not all. For two reasons.
Firstly, REGARDLESS of whether a court order may be bad news for one's political opponents, it is useful to first evaluate whether the court order, and the reasoning behind it, is more or less sound. This is not to suggest that the courts should be challenged left, right and centre. But it does mean, that in a case like this one, a few quick calls to the constitutional law pundits in your party ranks or friendship circle are a good start when an order looks intuitively weak.
After all, nothing stops you from BOTH criticising a court order and, nevertheless, finding non-legal grounds for criticising your political opponent's speech also. Indeed, that is what Lekota and Cope should have done: remain agnostic, for now, on the legal soundness of the judgment and criticise Malema on grounds of political and ethical (in)decency.
Secondly, the near desperation to reach out to white South Africans with this incessant non-racialism motif on Lekota's part is going to cost him politically. It is not just a dislike of Malema and the ANC that motivate Lekota's approval of this court order. It is, more importantly, his well-worn, newfound colour-blindness in the aftermath of Polokwane that now infuses his politics in the most profound of ways. This is a mistake. Not because white voters, or white supporters within Cope, do not or should not matter. Nor because non-racialism sucks (though I do think it is overrated but that's another topic for another blog entry). But rather because Cope needs to reach out to SA's political equivalent of middle America in electoral terms --- the poor, marginalised black majority. You do NOT reach out to them by focusing the bulk of your political energy on a narrow nonracialism stemming from an ahistorical fear of alienating the white section within your party ranks. This is the confused strategising that underpins Lekota's political choices. It is very tomorrow, but not very now.
And because there are no established rules about how the party's position is to be reached on ad hoc issues that arise as the news cycle unfolds with lightning speed in this twitter age, Lekota, it would seem, can make declarations in the name of Cope without needing to consult widely --- and, critically, without having to consult a sober devil's advocate who might spar with him. I suspect that Phillip Dexter does not fulfil that kind of role.
The bottom-line is this: Cope will do well not to be led by Lekota after its May congress; furthermore, it would do well to emerge with a clear decision procedure for how to react to the fast-moving news cycle. They can start by recruiting an excellent political strategist or two (perhaps even folks not currently inside Cope) to help them step back from the detail and consider the big political picture when making important decisions.
It will be interesting to see how it all unfolds....
First, the facts. So, a couple of folks who are part of the same anticrime organisation wanted to know what words they could put on a banner. And, disagreeing on the matter, one filed an application to have the court express a view on the legality of the phrase "shoot the boer." The court, without giving reasons, declared the speech as unconsitutional.
The court reportedly ordered:
1. That the utterances and/ or publication of the words "Dubula ibhunu" are unconstitutional/unlawful". "Dubula ibunu" translated means shoot the boer or white man.
2. That the publication and chanting of the words "Dubula ibhunu" prima facie satisfies the crime of incitement.
Hence two questions arise: is this order legally correct? Is Lekota/Cope being politically smart in welcoming it?
On the order: in my opinion this is a poor legal decision. To be fair on the Acting Judge, for now, he did not furnish reasons for his order and, until he does so, full and final disagreement with his decision must wait. But, we can offer some good initial reasons for why it is probably a terrible legal order. Here are just a few:
a) Halgryn does not cite which Act it is in terms of which the speech is illegal; instead, there is simply a direct appeal to the constitution itself. Now, it is possible that he was simply being amazingly concise - lazy? - and meant to imply that the Equality Act (which, in its turn, is an expression of the constitution) had been violated, and that that is all he is picking out in declaring the speech unconstitutional.
However, given how unusual such a direct reference to constitutional provisions are in the ratio of a judgment about a horizontal matter between two citizens, it really would have helped to spell all of this out more clearly, more fully. In the absence of detail, the unqualified declaration of the speech as unconstitutional represents legal magic.
b) It is also unclear whether "intention" and "context" were taken into account. In other words, surely one cannot declare text in ALL contexts to be constitutive of illegal speech? If I use the phrase "kill the boer" in a lecture on the ethics of political speech, for example, does the use of potentially inflammatory language, in THAT context, where I am reporting the speech rather than performing it as an act designed to motivate my audience, constitute an illegal speech act?
I think the intuitive answer is "No...and if it is does amount to hate speech, under current law, then such a law needs to be suitably modified."
The central point is this: the acting judge needed to circumscribe the circumstances under which such speech is not allowed; as it stands, rather oddly, the order implies - on an ordinary reading of the pithy sentences we were given- that the words are banned in any and all contexts. That cannot be right.
These are some of the reasons why the order is shoddy. There may be others too, but the point it made. [ And, incidentally, the African National Congress' gripe is legally odd too: it was not a party to the case, and the court had no legal duty to invite them to court -- how does the ANC think court processes work?! Come on folks; next the judge will be 'invited to explain himself' at Luthuli House...let's keep this clean. ]
Now, given all this .... is Lekota's rush to embrace the judgment politically sensible?
Not all. For two reasons.
Firstly, REGARDLESS of whether a court order may be bad news for one's political opponents, it is useful to first evaluate whether the court order, and the reasoning behind it, is more or less sound. This is not to suggest that the courts should be challenged left, right and centre. But it does mean, that in a case like this one, a few quick calls to the constitutional law pundits in your party ranks or friendship circle are a good start when an order looks intuitively weak.
After all, nothing stops you from BOTH criticising a court order and, nevertheless, finding non-legal grounds for criticising your political opponent's speech also. Indeed, that is what Lekota and Cope should have done: remain agnostic, for now, on the legal soundness of the judgment and criticise Malema on grounds of political and ethical (in)decency.
Secondly, the near desperation to reach out to white South Africans with this incessant non-racialism motif on Lekota's part is going to cost him politically. It is not just a dislike of Malema and the ANC that motivate Lekota's approval of this court order. It is, more importantly, his well-worn, newfound colour-blindness in the aftermath of Polokwane that now infuses his politics in the most profound of ways. This is a mistake. Not because white voters, or white supporters within Cope, do not or should not matter. Nor because non-racialism sucks (though I do think it is overrated but that's another topic for another blog entry). But rather because Cope needs to reach out to SA's political equivalent of middle America in electoral terms --- the poor, marginalised black majority. You do NOT reach out to them by focusing the bulk of your political energy on a narrow nonracialism stemming from an ahistorical fear of alienating the white section within your party ranks. This is the confused strategising that underpins Lekota's political choices. It is very tomorrow, but not very now.
And because there are no established rules about how the party's position is to be reached on ad hoc issues that arise as the news cycle unfolds with lightning speed in this twitter age, Lekota, it would seem, can make declarations in the name of Cope without needing to consult widely --- and, critically, without having to consult a sober devil's advocate who might spar with him. I suspect that Phillip Dexter does not fulfil that kind of role.
The bottom-line is this: Cope will do well not to be led by Lekota after its May congress; furthermore, it would do well to emerge with a clear decision procedure for how to react to the fast-moving news cycle. They can start by recruiting an excellent political strategist or two (perhaps even folks not currently inside Cope) to help them step back from the detail and consider the big political picture when making important decisions.
It will be interesting to see how it all unfolds....
Friday, March 26, 2010
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 .
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 .
Thursday, March 18, 2010
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!"
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!"
Wednesday, March 17, 2010
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.
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.
Friday, March 12, 2010
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.
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.
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