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’If you want good laws, burn those you have and make new ones’ - this is what Sisulu implied

Tourism Minister Ms Lindiwe Sisulu. Photo: DIRCO News Service/Katlholo Maifadi.

Tourism Minister Ms Lindiwe Sisulu. Photo: DIRCO News Service/Katlholo Maifadi.

Published Jan 17, 2022

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The 28 years of the so-called freedom under the rainbow of the ANC government has left black people still oppressed, marginalized, exploited, landless and poor.

Tourism Minister Ms Lindiwe Sisulu. Photo: DIRCO News Service/Katlholo Maifadi.

The fractious factional ructions within the ANC in a year during which the party is set to hold its 55th elective conference in December were predicted to spur the trouble that is to befall us. All the ingredients that triggered the unrest of July last year persist.

It’s all about the capture of the “glorious” movement and delivering it to whichever interest group. It’s a season of folly and blatant absurdity. But, all these serve to distract us from the fundamental issue: the quest for true liberation as the landless and marginalised indigenous people of this country.

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We seem so intoxicated by the rhetoric of democracy and freedom signified by our “best constitution”, that we conveniently use it as the sand for us to hide our ostrich heads in denial. When we get awoken from our stupor, we tend to respond exactly as any naked emperor would.

Here are the realities: The 28 years of the so-called freedom under the rainbow of the ANC government has left black people still oppressed, marginalized, exploited, landless and poor. This is a matter of economic liberation, which in my view is meaningful freedom.

Secondly, Blacks remain culturally oppressed, which makes us a cultural minority. It is quite logical that the economically powerful will impose their cultures, laws, heritage, languages and epistemologies on the economically weakened class, despite their numerical majority. It all counts for nothing.

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Well, thirdly and sadly, we only have a political dominance derived from the routinely determined casting of the ballot. It is these realities that we are shy to confront and uproot that see us obsessed with peripheral activities that serve to merely oil the machinery of the anti-black democratic system.

So, when the much-talked-about opinion piece of Minister Lindiwe Sisulu titled “Hi Mzansi, have we seen justice?” surfaced, I could never have imagined it causing such a stir that it would land us, as a nation, in a bizarre situation of a press briefing by the Acting Chief Justice, Raymond Zondo, specifically held to respond to a piece written by a citizen in her personal capacity.

I must confess I had wished that she would have replaced “Mzansi” with “Azania” in the title.

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I am saying this because I thought she was not really raising anything new or fresh. Yes, we live under the “best” Constitution and the “rule of law”. It is also true that there has been a sea of poverty in the black section of our troubled society under the ANC for 28 years now.

I am one of those who has challenged the unfounded notion that the constitution of South Africa is the “best” in the world, mainly because, for me, it has been an effective tool to protect the interests and privileges of those that benefited from colonialism and apartheid. It is also a fact that it is a Eurocentric and neo-liberal document that was granted supremacy over Afrikan laws, practices and systems.

It is under this constitution that our society has become the most unequal society, with the natives swimming in an acidic sea of poverty while a few black elites have been accommodated at the master’s table.

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The reference to Carter G. Woodson’s “The Miseducation of the Negro” by the Minister, in my view, does speak to this context. It is relevant in our various spheres of life including in government, corporate and employment spaces, public service, academia and, indeed, the judiciary. The problem of post-independence Afrika (and post-apartheid South Africa) is the persistent pestilential coloniality.

The notion of “house negroism” or “non-whitism” is an issue that has retarded attempts at a radical reversal of the effects of colonisation and apartheid on the Afrikan continent.

However, those of us who have been affirmed and assimilated into the system will put up a fierce fight to defend and protect the neo-colonial system, that sustains the anti-black status quo characterized by racial inequality and marginalization of the natives in their own land. This should explain why any act, move or utterance to change or amend the constitution is met with restlessness, vilification and ridicule especially by those who benefit from it.

It’s easy for proponents of constitutional change to be branded “reckless” and “anarchic”. There are, for instance, people who still argue that the amendment of Section 25 to enable expropriation of land without compensation is unnecessary as, in their view, the constitution does not preclude government from doing so.

One only has to look at the class background of such commentators to understand why they hold this view. Yet, we must tolerate their right to air their opinions in the spirit of Evelyn Hall, “I disapprove of what you say, but I will still defend to the death your right to say it”.

Regardless of who we are in society, we need to understand that democracy demands openness and tolerance among its participants.

Unfortunately, Sisulu has become the cynosure of our political discourse, especially after the “censure” by Zondo on Wednesday. He sees her political commentary as an “attack” on the constitution and an “insult” to the judiciary. But the constitution itself, in terms of Section 16 (1), grants everyone (including Sisulu) the right to freedom of expression.

Nothing in her opinion piece, in my view, is limited in terms of Section 16 (2) so as to be construed as “propagation for war, incitement of imminent violence, or advocacy of hatred… that constitutes incitement to cause harm”. That’s my view, and I hope it’s legal to hold it.

The fact that the constitution further leaves room for amendment opens the door for citizens to critique it. Besides, I believe that the law, or the Constitution, should serve the people, rather than the people serving the Constitution. I therefore agree with her view that talk about the rule of law or discourse of “rule of law” should be premised on the assumption that the law serves the people.

We can’t be embracing bad laws or simply anti-black laws. The 18th century French philosopher, Voltaire, did assert that, “if you want good laws, burn those you have and make new ones”. What Sisulu is doing is to, exactly, advocate for the “burning” of the bad laws in this rainbow country. And this is the crux or pithy aspect of transformation, decolonisation or Africanisation of our society. We should not apologize for this mission if we really wish to address what the liberation struggle was about. We need to realize true liberation and experience our Azania in our lifetime.

I thus wish to agree with bodies such as NADEL and Democracy in Action in their assessment that Minister Sisulu has the right to critique the Constitution, our laws and even our judiciary. As Justice Zondo correctly states, “the judges may be criticised”, and indeed they should be scrutinised. He wisely points out that their actions as judges or their “judgments will speak for us”. But Zondo goes further and asserts, “it‘s very important that we draw the line between what is acceptable and what is not acceptable”.

My submission is that this assertion is problematic, particularly in political contexts, as it borders on stifling free debate, intimidation and throttling of opinion in a “democratic and open society in which…every citizen (including Minister Sisulu) is equally protected by law”.

Who, and in terms of which criteria, determines the line between acceptability and unacceptability of opinions? It is not advisable to impose moral, ethical or value judgements in political debates. The law should be the yardstick. In this regard, we should ask ourselves whether the Minister’s comments are lawful or not. If not, the “rule of law” should apply, and she will be criminally charged.

Without discounting the possibility of the existence of colonised judges, I do, however, think that the Minister’s generalisation that those Afrikans, “in the high echelons of our judicial system are mentally colonised” could have been phrased differently. Further, I take issue with the approach that seeks to castigate her for airing her political views in her opinion piece without adopting a scientific or rigorous style of scholastic engagement.

At which stage can we say a comment becomes an insult? The Oxford Advanced Learner’s Dictionary defines an insult, as “a remark or action that is said or done in order to offend somebody”. It is clear that this is a relative or subjective terrain that rests on an individual’s intention, interpretation and/or feelings.

It would thus be extremely difficult, and a subject matter of continuous debate to adjudge her in terms of the acceptability or unacceptability of her comments. That’s why there are divergent views, reactions and inferences about her opinion piece. By the way, not everything unacceptable is an insult or illegal.

There are, already, people who personalize the debate as if to suggest that because she is a member of parliament, a member of cabinet, a senior member of the ruling party, served in the same ANC government in various administrations since 1994 and, worst of all, that she is a Sisulu that she is not supposed to be critical of the Constitution, the so-called rule of law and the judiciary. I think such averments defy logic, especially in argumentation. Besides depriving her of her rights as a citizen, they amount to the pathetic notion of argumentum ad hominem. We should engage her ideas or remarks rather than who she is. Otherwise our approach herein will be lame.

It is, however, important not to pretend that these issues may be analysed separately from the seismic political dynamics in the ANC precipitated by factionalism, other issues in the society such as state capture commission and the posture of the judiciary in the trajectory of various politically-inclined matters.

What if Minister Sisulu, like many other people, had said exactly the same words at a different time, in a year where no ANC national elective conference is to be held? What if she was to say the same words whilst she was a known member of the dominant faction in the ANC? What if she was not a potential candidate for ANC presidency? What if the appointment of Chief Justice was not imminent? I get the sense that we would be having a different discourse right now. (Read the longer version online).

David Letsoalo is a Sankarist, an activist and Law academic

Sunday Independent

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