Is an open constitutional democracy a threat to security, or rather political expedience?

The current furore over the Protection of Information Bill and the Media Appeals Tribunal has fundamental and seemingly overlapping human rights issues at heart: the right to privacy and dignity coupled with the State’s interest in supposed national security and the right to freedom of expression and freedom of the press.

The apparatchiks and cadres at the ANC are quite indignant at what they claim the unscrupulous, paparazzi-esque harassment and stalking of esteemed members of parliament, ministers, and other office bearers and tenderpreneurs. They contend that their rights to dignity and privacy are being desecrated.

Let us not forget that the media played a pivotal role in exposing government incompetence, mismanagement, irregularities and fraud, all of which made the apparatchiks look bad. And apparatchiks with a predilection for totalitarianism do not take humiliation and accountability very well.

A knee-jerk reaction followed in the guise of the Protection of Information Bill and the mooted Media Appeals Tribunal. One can almost smell the self-righteous bitterness all the way from Cape Town.

But the Constitution of the Republic of South Africa’s Bill of Rights also guarantees the right to freedom of speech and a free press. At the intersection of these seemingly conflicting and overlapping rights the vicious debate commenced.

So much has been written about the draconian Protection of Information Bill and Media Appeals Tribunal that for me to weigh in on that subject would be superfluous. Instead I will focus on some layman’s constitutional juris prudence.

The US Ambassador to South Africa, Donald Gips, also weighed in on the contentious issues facing South Africa at the moment. Gips is quoted in PoliticsWeb:

In the early days of America, our third president Thomas Jefferson said, "Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it." In the darkest days of South Africa, the press was a leading light that helped expose the acts of the apartheid regime.

The US ambassador to South Africa also said that he heard the word "tenderpreneur" for the first time in South Africa. Methinks our penchant for making up words for creative opportunism caught his attention.

Where else would such a neologism be conjured up, I thought? Very few supposedly open, constitutional democracies display the unrestrained duplicity, corruption and nepotism we almost take for granted here. If government gets its way this will most probably be the last time I am allowed to write about government malfeasance or even produce postulations and create “unpatriotic” hypotheses.

As with all things political there is a history pertaining to the current ruckus. 1994 hailed in the miracle that was the new rainbow nation (a term ascribed to the most venerable Archbishop Emeritus Desmond Tutu). After Nelson Mandela, arguably the world’s most liked statesman, stepped down things slowly went pear shaped.

The media grew critical of government shortly after the rainbow nation miracle-honeymoon, circa 1999 – and many a times it exposed very embarrassing actions of office bearers. Sometimes the media highlighted pure, unadulterated hypocrisy and sometimes the wanton abuse of power, wasteful expenditure and the gross mismanagement and theft of the taxpayer's money. This was obviously not a pleasant experience for those who hold sway over the laws of the land.

Granted, government, essentially, tried to better the lives of ordinary citizens and with every exposé some degree of resentment set in. Mama Winnie famously said at the OR Tambo International Airport during the Caster Semenya saga: "We know your responsibility is to inform us, but do so patriotically without insulting one of our own. Use the freedom of press we gave you properly, because we can take it from you."

Some commentators saw in that statement the foreboding of what is emerging while others just shrugged it off – in retrospect it seems to be rather safer to err on the side of caution.

I have personally been subject to invasion of privacy, albeit my subjective evaluation, and mockery at the hands of one of the newspaper groups and I admittedly felt violated – I would be lying if I said I was completely unscathed. I realised though that just as unfair I saw the petty article, the point was that it was petty and an attempt to defend the indefensible. I could have thrown my weight behind the ANC to gag the press and fine and jail journalists but then again I am a journalist myself and the right to freedom of speech and a free press trumps any insignificant dents made to my non-existent public image and seemingly fragile sense of pride.

I am though not sanctioning impunity because malice exists in every industry and like everyone in society journalists should be held accountable like any private person. Then again – if you decide to venture into public life you are relinquishing your complete right to privacy because the consequences of your actions might affect citizens and your comings and goings might be in the public interest.

And here is where the adjudication of conflicting interests and rights come into play. Justice Albie Sachs in his capacity as former judge of the Constitutional Court explains the raison d’être of constitutional litigation in the Strange Alchemy of Life and Law:

I came to see most of the work on my Court as involving claims between right and right. We were concerned not so much with classificatory frontiers between the lawful and the unlawful, as with reconciling the diverse interests that inevitably exist in an open and democratic society. In this setting abstract legal reasoning of a dogmatic kind gave way to a form of adjudication in which purpose, context, impact and values took centre-stage. [Sachs, 2009: 202 – 203]

Sachs goes on to explain the balancing up of rights and the determination of fairness:

Proportionality, fairness, reasonableness: these were not questions that could be decided purely by grammatical textual analysis and logical inference. In just about every case that came before us, the Constitution obliged us to make value judgments on issues of major social and moral importance. The problem then was not whether to make value judgments, but how to do so in a principled way that was true to the letter and spirit of the Constitution. [Sachs, 2009: 211]

The essence of the above is that conflicting interests are adjudicated based on proportionality and reasonableness to determine the most fair and constitutional judgment.

Section 14 of the Bill of Rights grants the fundamental right to privacy and section 10 grants the fundamental right of dignity, while section 16 gave effect to freedom of expression including freedom of the press and other media, and section 32 gave rise to the right to access to information. These rights are subject to the limitations clause as elaborated on in section 36.

Clearly there is a conflict of interest and rights at play here. And in my humble opinion it is not up to politicians to play adjudicators with their inevitable conflicting interests. It is up to the honourable judges of the Constitutional Court, who are well-versed in the concepts of proportionality, reasonableness, fairness, equality and juris prudence to decide whether the Protection of Information Bill and the Media Appeals Tribunal violate the rights of the citizenry by virtue of their existence. Section 36 e) makes it clear that where limitations of rights may apply the less restrictive means to achieve the purpose ought to be used.

The draconian and fascist Protection of Information Bill and the threat that is the Media Appeals Tribunal do not properly balance the rights to freedom of expression including the freedom of the press and the right to access to information with the limitations the State is seeking. Furthermore the limitation of rights clause (section 36) concludes with the profound statement which will hopefully sink these fascist initiatives should it ever reach the Constitutional Court: no law may limit any right entrenched in the Bill of Rights.

Whose rights are the state protecting and what information lurks beneath the surface that we ought to be protected against it? Are we seeing simple exaggeratedness or rather patent expedience?

Bibliography:

Sachs, A. 2009. The Strange Alchemy of Life and Law. New York: Oxford University Press.

We’re ALL African

It is the theme of 2010 Joburg Pride (Africa’s oldest and largest Pride event) and the venerable Archbishop Emeritus Desmond Tutu proclaimed it during the kick-off concert of the FIFA 2010 Soccer World Cup. It is a statement encapsulating unity in diversity. And its scope is not limited to denizens of Africa as anthropologists and historians alike have postulated that humanity has its origins in Africa.

The preamble to the Constitution of the Republic of South Africa and the inscription on the South African coat of arms cemented the phrase “unity in diversity.” The old, clichéd adage still holds true: united we stand, divided we fall.

The Joburg Pride Board adopted the theme in light of prevailing threats of xenophobic violence which immediately conjures up memories of the deplorable events of May 2008 when about 100 000 people were displaced, homes and businesses of foreigners ransacked and set alight, the most indigent people in South Africa assaulted and murdered and chased away from their homes like subhuman beings. The victims’ only “crime” was being different – of a different nationality. It is identity based crime and victimisation personified and a close parallel to genocides through the ages from times immemorial to the Holocaust to 1994 Rwanda.

South Africa is one of only a handful of countries that grants asylum status due to persecution on the basis of sexual orientation inter alia. Many members of the Pink community from all over Africa fled to South Africa in search of a sense of normalcy and freedom from persecution/genocide and to experience some of the legal rights and protections South Africans so often take for granted.

If you think xenophobia only applies to foreign nationals, think again. Xenophobia literally means (from etymology) “having abnormal fear or hatred of the strange or foreign” [Wordweb, Princeton University]. I’d hate to break the news but many people view us in the Pink community strange or foreign or both. It doesn’t matter if we are lesbian, gay, bisexual, transgender, transsexual, intersex, questioning, queer, polyamorous, asexual or of the various shades of alphabet soup identities in between artificial semantics boundaries.

Those who are not completely heterosexual and cisgender face possible identity based crimes along with foreign nationals. Yet some in our little convoluted community harbour the Orwellian notion that they are more equal than others in the same boat as they are, or simply lack the insight and cerebral capacity to grasp the interrelatedness of human rights. These bitter and self-destructive people draw endless us/them dichotomies to stymie the work done by many in the Pink community to foster a sense of unity in purpose, severalty and diversity.

Here’s the caveat – even if a community is defined as one that is not 100% heterosexual and cisgender one should display extreme caution to not alienate our allies who are both heterosexual and cisgender, otherwise we will be just as bigoted and disingenuous as our detractors. If we approach everyone with the premise of confrontation and contempt that is most likely exactly what we'll get. We'll not only exude gross antagonism but will exhume it from the darkest trenches of misdirected resentment too.

Despite our efforts to fight for the whole Pink community there are continuous assaults from industrious armchair critics, radical feminists (who act contrary to the original suffragette raison d’être), a variety of incessant, unreasonable and belligerent gay, lesbian, bisexual, and transgender malcontents. Their identities are not the causation of the squabbles but rather their attitudes and being strangers to the concept of reciprocity and being well versed in how arm's length-ing can maintain doubt. There’s no use pleasing the unappeasable.

Notwithstanding the fact that all known Pink community organisations in South Africa fight for the rights of everyone some disgruntled and acerbic minorities within an already minority community completely subvert their own cause by vexing those who do not exclude and discriminate. Instead of widening the rifts of self-fulfilling prophecy in the Pink community these armchair critics should roll up their sleeves and jump in to join the fight for fairness, equity, and social justice.

If certain letters of the alphabet soup par example deem the fight for their rights relegated and given inferior treatment and deficient attention they should get involved and make their voices heard in a constructive way. People tend to not react very positively to gratuitous abuse and wanton destructive criticism. I am using the minority within the minority here as one sees the livid and irrational lamentations of more traditionally “marginalised” community members. Certainly much more should be done for super-minority rights but then activists identifying as such should add their voices to established organisations and if all else fails form their own all-inclusive organisations.

If the marginalised forms a community exclusively for the marginalised whilst harbouring resentment for others in the Pink community for the rights they gained, the marginalisation would perpetuate due to continued isolation. The marginalised would also be no better than those they despise as they would inherently relegate the issues of all others besides their own due to the “other” being inherently excluded as a member of the clique by birth. Fairness and equality is a two-way street.

I could juxtapose the aforementioned situation and my own experiences a certain commonality comes to the fore. I am atypically gay in the sense that modern day gay identities seem to emanate from shop fronts. The great irony is that for decades our predecessors fought for the right to be different with the unfortunate emergence of rigid gay stereotypes and gay men fighting a battle of a different kind to try and reconcile themselves with these convenience store stereotypes. I refused to lose my personality to fit in some superficial mould and I did not attack already established Pink rights groups to blame these social constructs on them – I decided to add my voice, even if it might be seemingly insignificant. In the process I realised there are many others like me who are not content with conforming to some stereotype who also thought that they were the only mismatched socks.

I am thus flabbergasted that those who urgently need coherence and solidarity are wasting their time with infighting. I am quite dejected that people of sound mind lack the insight to see the interrelatedness of our rights, hence this equation:

Xenophobia = homophobia = transphobia = racism = anti-Semitism = any form of bias.

The socioeconomic realities of Africa lead to demagogues displaying obscene McCarthyism – they blame socio-economic circumstances on the “other” which leads to societal intolerance. The blame-game is used as political weapon to cover up the lack of service delivery, tenderpreneurship, fraud, corruption, and misappropriation of public funds and a plethora of callous activities by Public Representatives.

All nonconformists out there are just as vulnerable as refugees and foreign nationals – we need to see the wood for the trees. As long as there is great inequality and a lack of social justice out there we should not rest on our laurels.

It is a pity a lot of people are stuck in this phrase/frame of mind:

“There’s an obvious attraction to the path of least resistance in your life.

There’s an obvious aversion no amount of my insistence could make you try tonight”

Wake up – Alanis Morissette – Jagged Little Pill (Maverick, 1995)