EXCLUSIVE: I wrote as part of my contribution to a conversing South Africa as guaranteed in the spirit and letter of the Constitution

By: Lindiwe Sisulu

Less than a week ago, I published an opinion piece that captures the importance of where ordinary South Africans find themselves. This opinion piece is my contribution to a conversing South Africa where discourse, as guaranteed in the spirit and letter of the Constitution, is underscored as a crucial tenet of our democracy. I remain humbled and heartened to have seen the responses of a cross-section of our South African society taking the time to read, engage and comment on it.

I, unfortunately, will not attempt to arrest the debate in seeking to respond to all written or spoken inputs that would not be anyone’s interest nor valuable. The by-line for the article remains unambiguous and crystal-clear that I penned such in my capacity as a member of the ANC privileged to serve in its structures, among others the NEC, NWC, and as Chairperson of Social Transformation Sub-committee. That, however, did not assist those who, for expediency, narrowly read it as a cabinet minister writing. I thought it necessary to contextualize my opinion since several commentators either misread or willfully ignored what capacity I penned the op-ed. Unfortunately, some have read into my views the subject of ill-discipline for which there is no substance.

The task and role of the Social Transformation Sub-Committee of the ANC necessitate upon us the responsibility to engage to ascertain real progress on transformation. This includes the often conflated, and for some thorny matters of economic transformation, the land questions all other issues that have a material bearing. It is a given that long before we can get to conversations on a 55th elective conference in a normal setting, the ANC programme within the context of a five-year conference interval includes a National General Council, which delineates the mid-term assessment of its progress on what the organisation and its leadership committed. This is usually followed by a Policy Conference where the ANC engages its policy infrastructure frameworks, implementation evaluation, and progress. This is all done to ascertain which policies need reworking, re-emphasizing, and new proposals immanent in policy dimensions. Unfortunately, we are not in a normal setting given the pandemic’s presence and the state of the organisation at the most fundamental levels. We also know that since we have hitherto had not been able to sit for the National General Council (NGC), the organisational programme is interrupted.

Therefore, my opinion piece was in the spirit of the obligation of assessing our progress less from an elitist setting but in the attempt of the ordinary South African for whom freedom remains a mirage and justice often an impossibility. Following the publication of my opinion piece, several individuals responded, so I thought it essential to respond.

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Ordinarily, I would not even bother to respond to the unfortunate uninformed, rhetoric-laden, and incoherent article by Mavuso Msimang entitled “Lindiwe Sisulu’s extraordinary attack on South Africa’s Constitution.” Perhaps the title betrays the author’s ludicrous views that criticism of the Constitution is an “attack” regardless of the merits. But I have chosen to write to dispel the false narrative that Msimang and other reactionaries seek to suppress robust and honest debate within the ANC and exercise. At the same time, they enforce censorship over the members who freely express their opinions about the state of our democracy and other matters of vital interest to the ANC.

For starters, Cadre Msimang displays his unfortunate confusion and perhaps wilful constitutional ignorance by claiming that “Sisulu questions the import of the rule of law since the “rule of law also underpinned apartheid and Nazism.” Msimang unwittingly vindicates my view that the rule of law without social justice and without bringing about substantive changes or improvement in the lives of ordinary people can be no better than apartheid or Nazism “law and order.” Undeniably, the authoritarian rules of Nazi Germany were obsessed with social order, and Nazi law and order policies were based on the belief that individuals should be law-abiding and obedient. Individual human rights were viewed as subordinate to the state and national priorities in this milieu. In due course, the Nazi regime created or adapted a network of police agencies and courts to enforce its strict law and order policies. Under the rubric of maintaining the “rule of law,” the overly quiescent German judges, lawyers, and legal experts caved into Nazi demands and expectations – they changed the judicial system for the benefit of the Nazis. With rare exceptions, judges were enthusiastic enforcers for the Nazis, upholding and enforcing Nazi legislation, including their odious racial and eugenics policies. Apparently, Msimang seeks to emulate the Nazis by characterizing any criticism of the Constitution and existing social order as “an attack.” With the stroke of a pen, he would rather close down all avenues for citizens to exercise their democratic rights of free speech. He even dares to call for sanctions against me.

The Nazis departed from the rule of law whenever it suited their purposes to do so – the Nazi regime worked much of its evil through formally lawful means. Like the apartheid state, they represented a textbook case of regimes that have systematically combined a faithful adherence to the rule of law with brutal indifference to justice and human welfare. Apartheid and even slavery have coexisted with the rule of law. Msimang is perhaps unnecessarily held carceral by his factionalist agenda and thus cannot rationally engage with these observations underpinning the article I authored. Proceeding from his factionalist position, he views every analysis of “the rule of law” and criticism that does not accord with his myopic and jaundiced perspective as “an attack” on the Constitution. That is the hallmark of intellectual laziness!

In 2010, one of the United Kingdom’s most distinguished jurists in the last hundred years, Lord ‘Tom’ Bingham, published the seminal work ‘The Rule of Law .’Lord Bingham looked at what exactly is meant by the rule of law and identified the core principle of the rule of law as being: that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. He outlined eight principles that he saw as the key ingredients necessary to support that aim. In brief, these were:

• The law must be accessible, intelligible, clear, and predictable.

• Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.

• Laws should apply equally to all.

• Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers.

• The law must afford adequate protection of fundamental Human Rights.

• The state must provide a way of resolving disputes which the parties cannot themselves resolve.

• The adjudicative procedures provided by the state should be fair.

• The rule of law requires compliance by the state with its obligations in international as well as national laws.

By observing these eight principles, and in particular, affording adequate protection of fundamental human rights, our society can ensure that we avoid the dilemma posed by those using the “rule of law” rhetoric to cover up oppression and injustice.

That is the point made by Professor Joseph Raz in his 1979 work ‘The Authority of Law .’Professor Raz argued that, seemingly, within the framework of the rule of law, societies can exist that oppress minorities, condone slavery, and support sexual inequalities – all of which would be abhorrent to genuine democracies. And yet, by adhering to strict legal structures and procedures, such societies could still legitimately claim to excel in their conformity to the rule of law. Such a legal system will allow discrimination and prejudice but all the time within the legal construct of decrees and legislation. Absent protection for human rights, courts and the legal system may deprive fellow citizens of their freedom, property, and ultimately their very existence. In such circumstances, the claim that the rule of law is observed is a mockery of the truth. The point I made about the 1913 Land Act is precisely an attempt to legitimise blatant land theft as an “Act of Parliament,” legal, and perfectly in line with the colonialist understanding of “the rule of law.” I also raised the question Msimang cannot seem to grasp: An act by the government might be legal, but is it just? Justice, not order, is the foundation of the law.

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Again it appears a stretch too far to expect Msimang, known for his zealot-driven tendencies inspired by his factional agenda, to delve into such fundamental legal issues of constitutionalism, the rule of law, and protection of fundamental human rights. Msimang is oblivious to the reality that a country may publicly proclaim adherence to the Rule of Law and Human Rights while at the same time eroding those very same standards behind the cover of legislative processes – providing a thin veneer of respectability and apparent conformity with legal norms. Having the “most beautiful constitution in the world” does not guarantee that gender-based violence, discrimination against LGBTQ persons, and abject poverty will not occur.

Msimang thus further reveals his limited understanding of the rule of law when he asserts: “Regardless of whether one is functioning in a democratic, autocratic or fascist state, the remit of the rule of law is all-encompassing. It transcends concerns for the poor.” This is, unfortunately, bordering on intellectual bankruptcy of the worst kind. It is all too easy for countries to develop a system of oppression and tyranny camouflaged by what purports to be a legal framework. Lord Bingham’s principles and the call for respect for fundamental human rights expose the sophism of such systems and their flawed claim to act in compliance with the rule of law. Maybe Msimang speaks for the wealthy elite when he claims that the rule of law transcends concerns for the poor. What Msimang is saying, but does not understand the consequences of his argument, is that the “rule of law” which “transcends” the rights of the poor is the law that actively and purposely negates the right of the poor. It is a preposterous argument.

Continuing from his fallacious premise, Msimang responds to my statement that “Many years down the line, Africans manage poverty while others manage wealth” with unbridled sarcasm and befuddling nonsense. He claims that “it is the government, of which Sisulu has been an integral part for more than two decades, that has caused not only continuing but escalating poverty during the democratic era.” This clear as mud is perhaps the gibberish that informs Msimang’s epistemology. No sane and intellectually honest person can ever claim that the ANC-led government has “caused not only continuing but escalating poverty.”

We inherited legislated poverty from Apartheid, and we are struggling very hard to tackle the legacy of racial oppression and dispossession of our people. As ANC members, we are allowed to engage in robust and frank intellectual debates and arguments, we have the freedom to engage in criticism and self-criticism and to make meaningful contributions to discussions around policy issues which may lead to the improvement of the lives of our people and the alleviation of poverty. I take notice of Msimang’s puerile attempt to blackmail me into silence by asserting that I have been an integral part of the government for many years. What he misses in the whole discussion is that I have gained vast experience and developed valuable insight into the successes and failures of the ANC government over the two decades of ANC rule. May I remind Msimang that any jackass can kick down a barn, but it takes a good carpenter to build one!

Msimang embarks on a despicable attempt to inject a racist and myopic view into my article. My family and I have consistently and as a matter of principle rejected the racial classification of the Apartheid state. When I speak of Africans, I speak of all black South Africans, and I am at the same time rejecting the apartheid notion that the Khoisan, the indigenous first people in our land, must be labelled “Coloureds” and other names when the white colonizers reserve for themselves the title of “Afrikaners .”Msimang makes the absurd claim that “Sisulu would thus not have been wrong if, in her classification, she cited the black group as a whole, rather than only Africans, among those said to be still “managing poverty.” Msimang accepts the racist notion that the word Africans must exclude other blacks. He extrapolates from that to conclude that ” she may very well be serving notice in terms of batting exclusively for the African poor.” I do not need lectures from this ignoramus on race classification. Under Apartheid I could have been classified as “coloured,” and it is a perverse slander and insult to suggest that I endorse any an exclusive “African poor” agenda.

True to his material interests, Msimang takes umbrage at my observation about “the co-option and invitation of political power brokers to the dinner table, whose job is to keep the masses quiet in their sufferance while they dine [on] caviar with colonized capital .”Msimang fulminates that this constitutes a “breach of protocol and expose such malfeasance to the public.”  He further claims the breach is “inexcusable and deserving of a sanction.” Incredible staff! The galling arrogance of those folks consorting with white monopoly capital is such that they seek to invoke “sanctions” to close down debates within the ANC on any and all subjects where money influences the elites and affects our body politic is discussed.

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Msimang exposes his intellectual bankruptcy and dishonesty when he discusses the judiciary and the matter of President Zuma’s incarceration. The Constitutional Court judges Jafta and Theron, not Lindiwe Sisulu, reminded the whole country that President Zuma was imprisoned without the minimal due process guaranteed under our Constitution and violated international law. Not surprisingly, Msimang does not engage with that. Instead, he invokes a scarecrow and claims that I stated, “what an ANC faction that calls itself the RET, whatever that means, has also been saying since former president Jacob Zuma got hopelessly entangled with the law.” Being the indefatigable factionalist, Msimang seeks to delegitimize even rulings and observations by constitutional court judges simply because these are echoed by his nemesis he contemptuously refers to as an “ANC faction .”What value is there in debating with such a dishonest man who speaks with a forked tongue?

Msimang appears to be mortally affronted by the fact that I feel there is a need to overhaul a justice system that does not work for Africa and Africans. He is perturbed by my question:  “…where is the African value system of this Constitution and the rule of law? If the law does not work for Africans in Africa, then what is the use of the rule of law?” Again, Msimang is blinded by his static and conservative view that the rule of law without social justice and without bringing about substantive changes or improvement in the lives of ordinary people is all right. I do not subscribe to such perverse views.

As the Constitutional Court stated, in adopting our Constitution, we signalled a decisive break with our past – a ringing rejection of a history of denial of human rights to our people. We started an ambitious and laudable project to develop, nurture and infuse a culture of respect for human rights in all aspects of our lives. We all committed ourselves to a new and egalitarian society founded on values of human dignity, equality, and freedom for all.

We must together acknowledge that much has been achieved since the advent of our democracy in 1994, but a lot more remains to be done. Despite promises by the state to improve the lived realities of our people through advancing a transformative constitution, this egalitarian society founded on values of human dignity, equality, and freedom for all, remains elusive. As the ConCourt explained, “Ubuntu” is a constitutional value that must be observed in interpreting our laws – it is necessary to consider the values underpinning the Constitution, including ubuntu. Msimang and those who share is the prism of thinking are offended by anything that seeks to acknowledge and respect African values in our jurisprudence.

Let ANC members and South Africans continue conversing less in a muzzled and forced-fed sense by those who arrogate a right of self-appointed custodianship of the protection of the Constitution and the judiciary when we all are entitled to our opinions. Let a thousand flowers bloom.