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Economic freedom first, and all shall be added on to it
Yesterday President Jacob Zuma again expressed concern about the manner in which the judiciary allegedly “interferes” with the work of the executive and with the judicialisation of essentially political disputes, stating that there was a need “to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation”.
President Zuma – quite correctly, in my view — stated that “the executive, as elected officials, has the sole discretion to decide policies for Government”. Stating that he respected the powers and role conferred by our constitution on the legislature and the judiciary, he nevertheless insisted that the “executive must be allowed to conduct its administration and policy making work as freely as it possibly can”.
The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We also reiterate that in order to provide support to the judiciary and free our courts to do their work, it would help if political disputes were resolved politically. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections. This interferes with the independence of the judiciary.
These remarks are similar to remarks, made a month or two ago, which created some anxiety amongst some constitutionalists who have become anxious about the government’s continued commitment to constitutionalism. Unfortunately, the President’s remarks reflect, at best, a rather simplistic view of the principle of separation of powers. It also lacks the requisite detail and nuance that would allow us to analyse the remarks in a sensible and responsible manner.
When President Zuma states that the executive must be allowed to make policy “as freely as it possibly can”, it is not clear what is meant by this. It could mean — quite correctly — that the executive has the sole power to formulate and implement policies that are compliant with the Constitution. It could also mean — quite alarmingly — that even when the executive formulates and implements policies that are in conflict with the Constitution, courts should not interfere because (unlike the government of the day) judges have not been elected in a popular vote.
And what does he mean when he warns that people should not try to co-govern the country through the courts? Does he mean that purely political issues should not be brought to the courts, or does he mean that those who disagree with the policies implemented by the government should not approach the courts to have such policies declared invalid — even when the policies are clearly in conflict with the provisions of the Constitution? If it means the former, what exactly does the President understand to be “purely political” issues?
The problem is that it is not possible to draw a clear line between “purely political” matters and questions about whether the Constitution and the law had been complied with. Yesterday, in a radio interview with John Maytham on Cape Talk, Steven Friedman inadvertently illustrated this point quite well. He pointed out that it was problematic when courts became involved in purely political issues and then mentioned the case of the DA challenging the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) as a case in point.
Friedman is wrong when he asserts this is not a matter that should be taken to court. In fact, in a constitutional democracy where the rule of law is respected, this kind of appointment might very well require intervention by the courts.
The National Prosecuting Authority Act states that the President can appoint any fit and proper person with the requisite legal qualification as NDPP. But what happens if the President appoints somebody as NDPP who is not fit and proper or does not have the requisite legal qualification? For example, if the President were to appoint Schabir Shaik as NDPP, he would not be acting in accordance with the law and any court would have a duty — if so requested — to declare that appointment unlawful and invalid. If it failed to do so, it would in effect sanction lawlessness and would signal that it believed that the President was above the law.
It would be of no use for the President to asserted that he had the power to appoint an NDPP and that he believed Shaik indeed possessed the requisite qualifications for the job: in a constitutional democracy an action does not comply with the law merely because the President claims that it does.
Parliament can of course amend the NPA Act to change the provision requiring that the NDPP possess a legal qualification and had to be fit and proper and as long as these changes complied with the Constitution – including the requirement, affirmed by the Constitutional Court in the First Certification case, that the NPA had to be independent — the President could then appoint somebody as NDPP who complied with the newly introduced requirements. What the President cannot do is flout the existing law merely because he is the President and has decided that the requirements of the law are not to his liking.
Similarly, if the President in effect delegated the power to appoint the NDPP to his Minister of Justice, this would be unconstitutional and any such appointment would be null and void. Until the Constitution is amended to allow the MInister of Justice to appoint the NDPP, only the President can do so. If the President delegated the power to somebody else, he would be acting unlawfully and the Constitutional Court would have no choice but to declare this purported delegation unconstitutional and hence null and void.
Section 1 of the Constitution also confirms that the exercise of power by the President has to conform to the principle of the Rule of Law. This means, at the very least, that the President must act in a rational manner. There must be a rational connection between the legitimate purpose being pursued by the Presidents and the action taken to pursue that purpose. If the President appointed Evita Bezuidenhout or Nic Rabinowitz as NDPP because he thought it would be lots of fun to have a comedian as NDPP, this would not be a legitimate purpose sanctioned by the law and hence would not be constitutionally valid.
I provide these examples to illustrate that a decision by the President that might appear to be purely “political” might nevertheless raise several legal and/or constitutional questions. When this happens anyone — including the DA – has a right to challenge the actions of the President in court. Surely we do not want to live in a country where the President routinely flouts the very laws adopted by the Parliament dominated by the party he is the leader of?
Of course, no President likes to be told that he had acted unlawfully and that a decision he has taken was null and void. To prevent this from happening a wise President will not attack the judiciary for doing its job, but would rather ensure that his legal advisors provide him with honest, reliable, precise and accurate advice so that he would avoid the embarrassment of having his decisions overturned by a court of law doing its constitutional duty.
Given the less than reliable legal advice provided to our President on several occasions since his appointment, I would contend that President Zuma might have misdiagnosed the problem. The problem is not primarily that our courts do not respect the separation of powers — by and large they do. The problem is that on several occasions the President has acted unconstitutionally or unlawfully because he received really terrible legal advice.
Only time will tell whether the appointment yesterday of Mr Roger Hulley as a part-time legal advisor to the President will solve this problem. Hopefully Mr Hulley is a better legal advisor than a businessman. If he is not, President Zuma will continue to be thwarted by our courts doing what they are constitutionally mandated to do – interpreting and applying the law without fear, favour or prejudice.
Disclaimer: I fully support the views that follow below. After twisting her arm, Nomalanga* emailed me her piece on how our media loses itself in translation and lacks the shared social imagination of the majority. It goes as follows:
South Africans are, to all intents and purposes, lost in translation. But it is not all, it is only some, particularly, white (not all, but the majority), and other middle-class suburbanites whose daily chatterings are informed by what they read in mainstream English language media. In a discussion about how to move towards a non-racist society, I said to a friend, ‘the answer is ubuntu but not the way white people say it’.
This is the challenge of being multilingual within the monolingual insularity of middle-class South Africa. One has to constantly qualify and translate, for those who only speak English from a particular social lens, what words, idioms and terms mean in specific contexts and moments so as to not be misconstrued or misunderstood. Thus one has to say things like ‘I mean Black with a capital B’, or ‘I don’t mean white ‘phenotypically’, I mean the social positioning of racial privilege.’ It is exhausting.
In my experience, these translations are often necessary when talking to white South Africans who have little experience of being politically integrated as whites used to be in the United Democratic Front (UDF) and other formations of the 1980s where people of different social backgrounds learned to become politically intelligible to each because they lived in dangerous times.
Fast forward then into the present; the Jimmy Manyi controversy, the Zuma ‘heaven’ statement; the McBride ‘murderer’ label and the ‘Kill the Boer’ saga currently in the courts. Within media discussion, these moments are illustrative of a kind of linguistic malfunctioning as various viewpoints clamour for equal recognition in an unequal society; where former oppressors and those they oppressed want to be heard in this ‘post-conflict’ society. It makes for fascinating socio-linguistic analysis, but frustrating for political engagement.
Anyone who has sung militant struggle songs, in their original languages, knows that they are not rousing calls to kill. In the 1990s, when Peter Mokaba led toyi-toyi by chanting, ‘Kill the Boer, the farmer’, in English, the African National Congress recognised the danger, and banned it (it has not been used since) because it had a volatile political meaning when chanted in English.
However, when we sing ‘Hamba kahle Mkhonto, thina bafana boMkhonto sizimisele ukuwabulala wona lamabhunu’ as a homage to comrades at funerals, it does not translate, or signify malicious militancy, but is in remembrance of a righteous cause against white supremacy.
Journalists who directly translated Dubul’ibhunu to ‘Kill the boer’ were just plain wrong, and I mean bawrong man, as Black people say it. Surely they hear these songs sung in African languages at countless political gatherings, with white comrades. If they do not know this, where do they live, whose reality were they representing in their shrill headlines about the song? Just a few weeks ago Grahamstown service delivery protestors sang the popular struggle song ‘Senzeni na? Amabhunu ayizinja’ against the local municipality.
Displacing struggle songs from their contexts and translating them into English headlines feeds a social imagination of anxiety prevalent amongst white South Africans who have struggled to adjust politically since 1994. Swaart gevaar is an indelible part of the conservative white South African psyche; it has become pretty obvious that sensational media reporting feeds into these self-constructed delusions.
Murders of white farmers are undoubtedly horrific; however, the claim of special victimhood cannot hold up against the generalised violence that is dispensed against thousands of South Africans who are also viciously tortured and maimed during the course of crime. This is not to deny that there may be retaliatory attacks against some farmers which are fuelled by unresolved tensions over power and land. However, until media reported that Julius Malema sang ‘Dubula’ (translated) as ‘Shoot the Boer’, there was no connection drawn between struggle songs and the shocking murder statistics; only right-wingers did that.
It does serve divisive right-wing groups to draw false connections even though similar songs are sung on a daily basis. Ironically, the alarmist reporting on the meaning of the song, and subsequent court action is concretising and legitimising combative and reactionary militancy; it is a self-fulfilling prophecy. Banning the song will not make vulnerable farmers (and generally under-policed rural populations) safer.
Mainstream reporting, for all its laudable commitment to uncovering corruption, serves a particular social imagination; it is not that of the majority, and it is a social imagination that only speaks in hegemonic conceptions English. It is a language that constructs images of unstable, chaotic and unintelligible Black politicos.
Amongst Black colleagues, we confess our frustrations at how much is lost in translation in political discussion, not to us, but to our counterparts who are deeply Anglicised either by schooling or upbringing. We are up against thick and high Anglo-Saxon normativity and the mythical notions of English being the supreme language of political rationalism.
Yet shifting ones linguistic universe beyond English, into other languages deepens ones grasp of political dynamics. When politician A says ‘eZulwini kungenwa ngoKhongolose’, we would share in the joke and put it on page five, instead of blazing it on front pages, drawing heated overreactions from Christians defending God’s name from being abused by these ANC bogeymen. The unwashed masses got the humour.
It is in this sense of shared imaginations that I said to a friend, that we can move beyond our narratives of ‘race’ without diminishing the brutality of its past and present, by using African language idiom. We need to talk more of ubuntu, not ooboontoo, for the Anglicisation of the term in public discourse has denuded the term of its layered idiomatic meaning.
To have ubuntu is amongst other things, to have a visceral and deeply ingrained understanding of the effect your presence has on others. It is not simply to be kind or warm in some ‘Jambo!’ happy-go-lucky African Native way. It is a deeply humanistic conception of acceptance and embracing others as your kin.
These universes of meaning are missing in mainstream media because of the dominance of white suburban English. Sometimes it is hilarious, but sometimes it is dangerous. The poor translation of words or social discourses amounts to a mistranslation of the truth; it has the effect of making what is not real, appear real, and then indeed, become real once taken up as a public fact.
I am behind Blade, it should be compulsory to learn an African language as a matter of course in this country; watch how walls will tumble and political debate sharpens as suburbia finally learns to share in the social imaginations of everyone else.
*Written by Nomalanga Mkhize (PhD Candidate at UCT) & first published in Grocott’s Mail 28 April 2011.
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” Every time a DA spokesperson opens their mouth I can hear that sense of entitlement - that arrogance - that tone which goes with how white people are going to fix black people’s problems because black people don’t know how to do it..” (axtract) -News24 http://bit.ly/it1Scu
During the 2008 campaign, questions about John McCain’s birth in the Panama Canal Zone on a U.S. military base prompted some to ask whether McCain was eligible to be president, since the Constitution stipulates that anyone not born in the United States is not eligible to be president.
Amid a flurry of news reports, McCain’s own campaign announced in February 2008 that it was conducting an investigation. When a bipartisan pair of lawyers announced the following month that McCain was indeed eligible, the issue virtually died—apart from a Senate resolution that pretty much laid the question to rest by attesting to the facts surrounding McCain’s birth and citizenship.
But the winner of the 2008 election, Barack Obama, has faced a relentless campaign questioning his U.S. citizenship—and thereby the legitimacy of his presidency—that has disregarded the facts.
Questions regarding Obama’s birth certificate have persisted for more than two years, as the president noted Wednesday at a press conference announcing the release of his long-form birth certificate. A vast array of evidence attests to Obama’s citizenship—including a certificate of live birth, signed affidavits from people who viewed Obama’s long-form birth certificate, confirmation by Hawaiian officials, and independent investigations by news outlets. Nevertheless, “this thing just keeps going” as Obama said this morning. Even after the White House released the long-form certificate of Obama’s birth, birther leader Orly Taitz—who has filed unsuccessful lawsuits seeking to obtain access to Obama’s birth certificate—sought to cast doubt on the document’s authenticity, suggesting that in 1961, Hawaiian officials would have classified Obama as “Negro” rather than using designation “African,” which suggests, in her view, a more contemporary concern for “political correctness.”
So what’s fueling the dogged questioning of Obama’s origins? Many critics of the birther movement say its core tenets—and its stubborn resistance to evidence disproving those beliefs—can be traced to racial hostilities. The fundamental birtherist conviction, these critics say, is that an African-American can’t have legitimately won the presidency—and that his elevation to power therefore has to be the result of an elaborate subterfuge.
“There is a real deep-seated and vicious racism at work here in terms of trying to de-legitimate the president,” Peniel Joseph, a professor of history at Tufts University, told The Ticket.
“This is more than just a conspiracy,” Peniel added. “I think this is fundamentally connected to white supremacism in this country.”
Miami Herald columnist Leonard Pitts Jr. in early April called for the connection to be publicly drawn between birthers and racism: “So it is time to call this birther nonsense what it is—not just claptrap, but profoundly racist claptrap.”
And columnist Michael Tomasky wrote for The Guardian Wednesday that the birther conspiracy “had to be the only explanation for how this black man got to the White House.” He added: “And if you think race isn’t what this is about at its core, ask yourself if there would even be a birther conspiracy if Barack Obama were white and named Bart Oberstar. If you think there would be, you are delusional.”
In a similar vein, Rev. Jesse Jackson told Politico yesterday that Donald Trump’s campaign to get Obama to release his birth certificate is deeply rooted in race.
“Any discussion of [Obama’s] birthplace is a code word,” Jackson said. “It calls upon ancient racial fears.” Jackson later added that, in his view, Trump “is now tapping into code-word fears that go far beyond a rational discourse.”
Birthers emphatically deny such criticism. But it’s difficult to apprehend the ongoing resistance to proof of Obama’s citizenship without crediting racial fear as a significant factor. At first, after all, many adherents of birtherism argued that the administration fueled speculation by failing to release the long-form version of Obama’s birth certificate, but now that this version has been released to the public, the call continues to go out for other kinds of information about Obama’s past to be released—a level of scrutiny that neither McCain nor Obama’s 43 predecessors in the Oval Office were expected to face.
Trump, who has railed against Obama as he floats himself as a presidential contender, on Wednesday at a press conference in New Hampshire called for Obama to release his academic transcripts:
The word is, according to what I’ve read, that he was a terrible student when he went to Occidental. He then gets to Columbia. He then gets to Harvard. I heard at Columbia he wasn’t a very good student. He then gets to Harvard. How do you get into Harvard if you’re not a good student. Maybe that’s right or maybe that’s wrong. But I don’t know why he doesn’t release his records. Why doesn’t he release his Occidental records?
Trump and others have accused Obama of not authoring his memoir, while many Obama detractors continue to argue he is secretly Muslim. Both Jackson and Peniel noted that never before has a sitting president’s nationality been questioned.
Meanwhile, an eye-opening recent study from the University of Delaware appears to confirm that race-minded detractors of Obama view him as “less American”—as Dan Vergano writes for USA Today.
The study, which surveyed blacks and whites on their opinions of Obama compared to Vice President Joe Biden, found that whites classified as “higher prejudice-predicted Whites” viewed Obama as “less American”—a view that, in turn, resulted in lower evaluations of the president’s performance.
“Finally, many in the media have speculated that current criticisms of Obama are a result of his race, rather than his agenda. We believe that the current results are an empirical demonstration that this is sadly the case,” the study concluded in its analysis. “As the United States approaches important decisions regarding issues such as economic reform, health care, and overseas military interventions, the intrusion of racial attitudes in the evaluation of political leaders’ performance is ironically inconsistent with what many believe to be ‘American.’ “
Two separate national polls conducted this spring found that about half of Republicans don’t believe Obama was born in the United States.
But Democrats and Republicans alike say that “birther” talk will be a political liability for whoever propagates the discussion.
“I don’t think it’s an issue that moves voters,” Republican National Committee chairman Reince Priebus told reporters Tuesday. “It’s an issue in my opinion that I don’t personally get too excited about, because I think the more important question is what’s going on in this country in regards to jobs, to debt, and the deficit and spending. Those are the things that people are worried about. People aren’t worried about these other issues.”
(Photo of Obama: J. Scott Applewhite/AP) -yahoo.com
Rhodes University conviction PYA Rhodes University leadership for inviting ANC Secretary General Comrade Gwede Mantashe.12 November 2010We, Progressive Youth Alliance (PYA) at Rhodes University we want to make it known to the world that our leaders are hounded before a disciplinary tribunal. Their sin was to invite the Secretary General of the African National Congress Comrade Gwede Mantashe whom the university has labelled as the ‘rubble rouser with radical views’. They are convicted under clause 15.18 that read as follows:“who is guilty of conduct which interferes with, or which may reasonably be likely to disrupt or interfere with teaching or study or research or lectures or meetings or other events at the University or of any constituent part of the University or of an associated research institute or the administration of the University or of any other of the normal processes and activities of the University”.It must be known to the world that none of the scenarios that are captured under this clause were violated during the lecture that was addressed by Comrade Gwede Mantashe. We are now dismayed that our leaders are being convicted under this clause. We view these charges as the way of intimidating our leaders in an institution that is led by counter-transformation forces, led by our so called ‘former revolutionaries’.We further analyse this as a concerted effort to annihilate PYA at Rhodes University towards 2011 municipal elections. Rhodes University has been demarcated as a ward for 2011 municipal elections; therefore it will be a highly contested ward because it is new. This conviction is meant to undermine democratic competition in those elections. We are therefore not surprised by this Apartheid tactic of hiding behind the law to advance political goals because Rhodes University is still run by the same ‘old boys club’ that subscribe to the racist philosophies of Cecil John Rhodes although there is so called ‘black façade’.This is the university that allow Democratic Alliance and Congress of People leaders to come as they please on campus without following protocol. This is clear indication that ANC is not welcomed at Rhodes University although they pretend as such when ANC leaders come to open libraries that are supported by the ANC led government. This is also based on the racist tendencies that black people are violent and therefore whenever black people meet there must be security measures. This racist discourse is clear because Democratic Alliance which is dominantly white is not forced to follow security protocol. This is further aggravated by the fact that some senior managers are members of Democratic Alliance and some undercover Congress of People members. The Progress Youth Alliance is very disgusted by the double standard of this university. This is the same university that will protest the idea of Media Appeals Tribunal and Protection of Information Bill on the basis that will censor ideas but finding it ideal to convict people for bringing Comrade Gwede Mantashe. Anyways we are not surprise by this action because this is the same university that boast of fighting Apartheid but finding ideal to give honorary doctorate to President C R Swart an Architect of Apartheid and not allow Africans even before that was legislated by Apartheid regime.We want to affirm our support behind our leadership that has come to be known as Rhodes Four. These are comrades Nonceba “Madam On Time” Mhlauli, Xhanti” Rhadebe” Njozela, Luzuko “Jazz” Buku and Egmont “Slovo” Bouwer. We want state categorically clear that they are victims of the political agenda of the masters of this university. Comrades don’t despair in the face of the evil and remember that you are children of the people that fought against Cecil John Rhodes and his racist philosophies. Remember the words of Solomon Mahlangu before he went to the gallows, he said “My blood will nourish the tree that will bear the fruits of freedom. Tell my people that I love them. They must continue the fight”. Your conviction comrades is providing strength in our fight to demolish this last bastion of British colonialism and where they only accept “good blacks” not rebellions ones.
Issued by Progressive Youth Alliance, Rhodes University.
Legal Representative of Rhodes Four.
078 728 9788
“Steve Biko was an inspiration because he fully understood that the foundation of any true liberation was self love.”
Delivering the 11th Steve Biko Memorial Lecture to a packed Jameson Hall on 9 September, Pulitzer Prize-winning author Professor Alice Walker drew on her poetry, personal history and the inspirational role of the South African liberation struggle to disenfranchised people around the world.
The title of Walker’s lecture, Coming to See You Since I was Five Years Old: An American poet’s connection to the South African soul, refers to her memory of learning the future South African national anthem from her eldest sister, a college student at the time.
“We were the only children who were taught this song in our highly segregated, deep Southern town in Georgia,” said Walker, “and Nkosi Sikelel’ iAfrika has stayed with me for the last 60 years.
“I have taken you, your spirit, the spirit of Steve Biko, of Winnie Mandela, of Nelson Mandela, of the children of Sharpeville, completely, into the very marrow of my bones. In our own struggles to end American apartheid, you have been with us.”
But Walker’s tone was angry and cheerless when she spoke about present-day South Africa, its corruption, crime, violence and specifically, its president.
“It is with so much sadness that one reads about South Africa in recent news. I am unable to comprehend how you now have a president who has three wives and 20-odd children. A president who has been accused of atrocious acts, and who seems to have little of the restraint in his personal life that would mean dignity and respect accorded to his people.
“Was Mandela’s decades of incarceration and Biko’s torture and death for this?”
People have forgotten their interconnectedness and worth, said Walker, and South Africa’s leaders have shown themselves to be obsolete.
Walker argued that we must therefore learn to lead ourselves, re-embrace conscience-raising poetry, and lose our attachments to gadgets that drown out our inner voice.
“About this, Biko was right,” said Walker. “Once your consciousness changes, so does your existence.”
Introducing Walker was vice-chancellor Dr Max Price, who apologised to those celebrating Eid ul-Fitr and Rosh Hashanah for the lecture’s timing.
“We try to hold the lecture very close to the anniversary of the death of Steve Biko (12 September). I ask your apology, but I also want to take the opportunity to wish our colleagues a healthy and successful year ahead,” said Price.