IN AN admittedly hard-hitting piece, former anti-apartheid activist Jay Naidoo tackles issues of good governance, which he says is our right, not a privilege.
“Our demands for fundamental liberties, encompassing human, labour, gender, sexual orientation, community and land rights” he says “are met by political elites’ concerted push to strangle citizen action through laws, policies, financial restrictions, intimidation and outright violence.”
Typically, Naidoo, like so many activists drawn into the fold of the African National Congress — a party formation which has failed miserably to transform South Africa into an exemplar of good governance — resorts to homilies on the simplistic return to the “rule of law”. The self-same mantra deployed by the security establishment and party insiders targeting students, unleashing violence which he notably criticises, as does commentator Eusebius McKaiser, who warns of the abuse of state security against overzealous students.
Coming twenty years in the aftermath and the anniversary year of the signing into law of the foundation document of the nation — our Bill of Rights — the ‘rule of law’ is anything but. Rather law, and by that I don’t mean all law, has turned into the ‘law of rules’, and thus constitutionalism, has produced nothing more valuable than legal contortionism — a byzantine, professional and well-heeled legal bureaucracy dependent on a superabundance of legal fees, has acted to deny us ordinary citizens our rights — impinging on access to the law, whilst also curbing fundamental freedoms, such as the right to assembly.
As I write this, and speaking as an active participant in the 1987 student revolt against apartheid, I have yet to receive any recognition from Minister Michael Masutha of my right to an attorney at state expense in a TRC-related case (EC19/2015). I therefore have no hesitation in endorsing the campus unrest, reminiscent as it is of the spirit of 1987.
Martin Luther King’s “Letter from a Birmingham Jail” explains why civil disobedience is sometimes necessary to bring light to an unjust law. Similarly, our founder, Nelson Mandela advocated civil disobedience against the unjust laws of the apartheid state. He would probably look on in horror at the growing militarisation of our nation’s campuses, and unlike Naidoo, exhort students to continue their protest action.
So no Mr Naidoo, your easy prescriptions and reliance on NGO statistics are better left to former apartheid functionaries. After twenty years of abuse, we really don’t want your ‘rule of law’, any more than an alcoholic desires a hangover, and surely not each and every law out there.
What we do want, rather and better formulated here, is a citizen’s law. A common legal dispensation which distances itself from the apartheid codex and racist decrees of the past. A common law which recognises that the Bill of Rights is not some ‘carrot on a stick’, nor a two decade long entitlement programme for legal professionals.
And certainly not a mere document serving the sole purpose of cappuccino drinking, robed solicitors earning inflated fees at the Cape bar, nor a get rich quick scheme for portly barristers paying off their third mortgages on holiday homes at Plettenberg Bay, while dining fatuously on sushi and kobe beef, reading De Rebus in the Mall. No Mr Naidoo, the Bill of Rights should rather be considered the very beginning of our law.
Until students return to classes, until citizens themselves are returned to the legal system, as equal partners, fully emancipated and possessed of equal rights, and until the role of lay assessors is expanded, there will be calls to either reform the judiciary, or remove its stifling and overbearing colonial influence from society altogether. One has merely to examine South Africa’s corrupt proxy judge system in which any sizeable law firm is able to dish up an attorney to act on the bench in favour of his or her client, to realise that something is rotten in the state of Denmark, to use a bardic phrase.
In its special hearings into the role of the legal community the TRC found: “part of the reason for the longevity of apartheid was the superficial adherence to ‘rule by law’ by the National Party (NP), whose leaders craved the aura of legitimacy that ‘the law’ bestowed on their harsh injustice.”
The crisis of legitimacy in which South Africa’s legal institutions find themselves today, where ordinary citizens are for the most part excluded, disempowered, often ignored, is both a tragedy and a farce, with the result that law libraries burn on a regular basis, while persons such as Naidoo resort to the self-same platitudes and pseudo-scientific aphorisms associated with the apartheid regime.
Now is the time to revisit our nation’s foundation stone, the Bill of Rights and its democratic values. To reboot the TRC process, to put an end to impunity and to examine the struggle record, and to free students from the scourge of fees once and for all. It is not the time for ideological dissertations that lead nowhere except back to PW Botha, BJ Vorster and HF Verwoerd.
SLATING the rainbow nation narrative has turned into a media cottage industry. If it is not the economics of equality which have put paid to the notion, then it is student revolt on campus, or lectures such as: The rainbow nation is a lie.
According to its critics, the rainbow nation is no more.
After the death of Nelson Mandela, the rainbow nation has lost hope, and the myth of a rainbow nation stands on precarious ground.
As South Africa stands on the brink of a recession, with a devaluation of the Rand, calls for a renewal of Rainbow Nation 2.0, signal that we need to seriously re-evalute the term, unpicking the meaning of the phrase, since clearly the Rainbow Nation, synonymous with the legacy of South Africa’s founder, Nelson Mandela, is a crucial ingredient to our future success.
Firstly, the many assumptions made by most persons about the Rainbow Nation, need to be understood for what they are, wishful thinking, a bucket list of demands, hopes and dreams. The birth of a nation comprised of many different ethnicities, was never meant to be plain sailing. There was never any guarantee that we would achieve all our goals in the short space of two decades.
If we thought we could escape by being some kind of exception, South Africa’s obsession with race during apartheid, merely turned into yet another obsession with race over the past decade. The tension between the haves and have-nots was bound to bubble over. The weakness of the Rand is evidence of our own weakness.
We would not be here if we were not a nation capable of reflection and self-evaluation.
Something important got lost along the way. What is it? Was the Rainbow Nation ever meant to be about race?
Is the Rainbow Nation about the colour of ones skin, or the colour of ones rights?
Consider the following. LGBT rights are encapsulated in South Africa’s Bill of Rights. We could as easily have adopted the rainbow flag associated with these rights instead of the brightly coloured cloth that looks uncannily like someone’s drawers, our national underpants or under-garment flying from a flag pole at rugby matches.
The Rainbow Nation thus also refers to a set of values, rights, and freedoms.
Freedoms such as press freedom, The right to Assembly, demonstrate, picket and petition; Freedom of expression, Freedom and security of the person, the right to privacy; Freedom of religion, belief and opinion; Freedom of association; Freedom of movement and residence; Freedom of trade, occupation and profession; Labour Rights; Environmental Rights; Children’s Rights; Housing Rights; Cultural and Linguistic Rights, and many other rights.
The Rainbow Nation is greater than the sum of its parts, a way of explaining these rights and freedoms to our youth and especially our children.
As we approach the 20th anniversary of the enactment of the Bill of Rights, we may just find that re-committing ourselves to constitutionalism and democracy, entails a rethinking of the Rainbow Nation, a nation built upon Rights and Freedoms, and not simply ethnicity and race.
When taken into consideration, the Rainbow Nation, along with its Bill of Rights, and Mandela legacy, is an extremely radical and revolutionary idea, one that we dump at our peril.
SOUTH AFRICA is only the second country in the world to adopt the preamble to the declaration of human rights, that goes “We the People…” thus setting as apart from other states that use God or Athiesm, to define their creation. Fundemental to this democratic tradition is the belief in secular humanism and the seperation of Church and State.
Unfortunately the so-called Anti-Terrorism Act aka the Protection of Constitutional Democracy against Terrorism and Related Activities Act (ProConDTRA), makes no allowence for the protection of our Bill of Rights against politicians, judges and lawyers — those who would dilute freedom to the status of a tampon-advert.
Then there’s RICA the Regulation of Interception of Communications Act, forcing mobile companies to install snoopware and allowing government spooks to tap into cellphone conversations at will. Our right to privacy is enshrined in article 14 — “Everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed.” No longer applicable?
Then there’s FICA — Financial Intelligence Centre Act that not only makes it harder for druglords to launder money, but also makes it easier for organised crime and big business cartels to locate and harass ordinary citizens, who may be blackmailed or forced into protection rackets etc. Section 14 of our Bill of Rights no longer applies.
Do you trust the people storing information that they are not going to snoop without the authorisation of a judge? Do you trust politicians to protect our rights? Do you trust anybodies word on freedom? Rights are not privileges that can get taken away. But if we are not vigilent, we will forget that we ever had rights to begin with.
Anyone interesting in joining an ONLINE VIGIL for our Bill of Rights, whose 10th anniversary hasn’t been noticed by a nation caught up in the Zuma Saga, post comments below. Maybe somebody will put up a web-page or two?