Constitutional

Justice Edwin Cameron.

Many commentators nowadays in America seem to use the US Constitution – in the words of the old joke about statistics – the way a drunk uses a lamppost: more for support than illumination.  Yet even the UK – trying to maintain their 300 year union with Scotland – mutters that perhaps a constitution would be a good starting point for a new dispensation. So it might be interesting to consider what the constitution in South Africa has, or has not, achieved for our twenty year old democracy.  I’m not qualified to do that, but Justice Edwin Cameron has written an insightful book on exactly that subject titled: JUSTICE: A PERSONAL ACCOUNT.

  It’s written clearly without any legal jargon and, despite his role as a judge of the court, he tries to make an unbiased assessment.  More than that, he sets the book against his personal life as a gay man living with HIV.  His struggle with “coming out” – not out of the closet but making his HIV status public - is moving.  Today it is hard to believe how difficult that was, yet Cameron points out that even today he is one of only a handful of public figures in Africa who have done so.  Yet the incidence of HIV among Africans probably runs as high as 10%.

With what it has enshrined, it’s hard to believe that in some quarters the South African constitution is unpopular.  On the left, the complaint is that the constitution was a white sponsored conspiracy to maintain white privilege under a black government, while white reactionaries mutter that the constitution is a legal facade to deprive them of rights and property.  Usually if there’s criticism from both extremes, you're doing something right.

The Constitutional Court in Johannesburg

Before the change of government, South Africa used “common” law (and Roman Dutch law at that).  There was no constitution.  Basically the government of the day could get away with almost anything (maybe hold the “almost”) just by passing a new law or changing an existing one.  These could be – and were – challenged and struck down in the courts, but it was mainly an issue of the government phrasing the law correctly and following due process.  There was no ultimate framework to which one could appeal.  Cameron, an anti-apartheid activist who used the legal processes open to him to try to support the victims of the apartheid government, and whose commitment is beyond question, clearly remains ambivalent about whether that was the right thing to do or whether he'd just allowed himself to be co-opted to lend the regime respectability through its lip service to the law.

Nelson Mandela suffered one of the first major reverses from the new Constitutional Court when it threw out one of his initiatives.  Looking back on this, he said: “It was, to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and my office and judged against.”  But that was Nelson Mandela. 

President "No"

His successor, Thabo Mbeki, was a different man.  For reasons which still remain a matter of speculation, Mbeki, highly educated and intellectual, was (and maybe still is) an AIDS denialist.  That is, he denied the connection between HIV and AIDS, seeing the latter as the result of bad environment and nutrition among poor people.  Cameron tears this to shreds, and it’s hardly worth commenting on.  But the impact was huge.  Not only was the president of the country wiping aside the impact of, for example, unprotected sex, but public hospitals denied ARVs to HIV positive people.  Pregnant mothers could only receive Nevirapine, the drug that could prevent HIV transmission to their babies, at a few designated “pilot site” hospitals, while Mbeki’s minister of health trumpeted the efficacy of African potatoes and beetroot.

Zackie Achmat Founder of the TAC

It was in this atmosphere that the Treatment Action Campaign took to the courts.  The arguments were carefully phrased.  The cost of the drug was not the issue.  The German company that developed and manufactured Nevirapine had offered to supply it – in any quantity required – to the South African public health authorities FOR FREE for five years.  Incredibly their offer was rejected out of hand.  Against this background the Treatment Action Campaign took their case for relief to the High Court in 2002.  When they won there, the government appealed to the Constitutional Court.  The TAC won there too.  Two years later, the government abandoned its approach and wholeheartedly faced the HIV epidemic.  Mbeki’s disastrous blind spot had only one saving grace: his government made it clear that they would abide by the decision of the Court.  By doing so, he ensured that the rule of law and the lofty founding principles of the New South Africa would not be tarnished. It was too late to do the same for his reputation and legacy. He was dumped by his party after a single term as president.

Michael – Thursday.

Phoenix Malema

A few weeks ago I wrote about the Goldman Sachs report on South Africa twenty years on from the election of the new government.  Much has changed for the better, but the young and the poor – and especially the young poor – remain marginalized in the new society.   Much of the school system remains in disarray, and the graduates of these schools, and in some areas, those of colleges and universities as well, essentially don’t have the skills to be employable in the twenty-first century.  South Africa needs the growth rate of a China to make headway with jobs for these people; currently it looks as though 2% is the best we can expect.  That’s enough to create some jobs, but far less than the number of new job seekers entering the market every year.  It’s clear something needs to be done; the problem is deciding what to do and then getting it done.  Recently the government approved a youth wage plan (which is basically a subsidy for first time youth hires) in the teeth of the trade union movement’s vehement objections.

Julius Malema at the launch of the EFF

Enter Julius Malema from stage left – far left.  He worked himself up to the powerful position of chairman of the ANC Youth League and set about enriching himself.  He once famously said that the people don’t mind if their leaders are rich.  And he seemed to be right.  Trusts and companies appeared from nowhere and he started building mansions and buying fancy clothes and cars.  All would probably have been well if he’d settled back and enjoyed that while wowing his followers with rhetoric.  But he had ambitions way beyond that.  His eyes were on the presidency.  All he had to do was to persuade the party that he was the popular leader and the heir apparent to the tarnished President Zuma.  And he was following a pretty good example.  Zuma pulled that off against the previous president - Thabo Mbeki.  Characterising Mbeki as out of touch with the people – which he was – Zuma paraded in traditional dress, dancing and singing his anthem “Bring me my machine gun” to the delight of his followers and the horror of white South Africans.  Once Mbeki was off the scene and Zuma was president, the machine gun was retired along with the song, and everyone got on with the important business of making money.

President Zuma doesn't seem too concerned...

What Julius didn’t understand was that there was much behind the scenes manipulation which went into the unseating of Mbeki.  Zuma is much too wily to fall for the same trap.  So when Julius tried the same sort of tactics, he was firmly slapped down.  One of the charges against Malema was that his “Shoot the Boer” song was hate speech.  (Do we detect a theme here?)  When he ignored the slap, he was expelled from the party and hit with corruption charges.  Now he claims to be penniless and living in the tiny house where he grew up. He claims his expulsion from the party showed that the ANC “has become a pig and is eating its own children.” He went on to say that Zuma “removed me because people said to him, ‘Remove Malema and white people will be happy.’ ”

Having failed in his takeover from within, Malema’s strategy has moved to a takeover from without.  Launching his new party –Economic Freedom Fighters - at Marikana – site of the miners’ strike where more than 30 people died – he appeared in Hugo Chávez red beret and called on his followers to complete the revolution which, he claims, stalled in 1994.  “We must restore the dignity of the black majority,” he declared to a crowd of thousands. “Now is the time to deliver on the promises of 1994.” His policies include such tried and tested economic recipes as seizing white owned land and nationalizing the mines and banks.  These have worked out so well in Zimbabwe that it makes absolute sense to do the same thing here.  Well, sarcasm will get me nowhere, but promising to do something – anything - tangible for the poor may get Malema a lot of votes in next year's general election. 

People tend to treat him as a joke, and the EFF as a paper tiger with no purpose but to restore Malema’s fortunes.  That’s as may be. History is littered with people who were laughed at and went on to overturn the world.

The EFF expressed "disappointment" at somesupporters displaying racist posters at its launch

 Michael – Thursday.