The good, the bad and the ugly - Part 2

Execution of South African citizen – Janice Bronwyn Linden

Linden

At 04h30 hours the Chinese government predictably executed a South African citizen, despite high level pleas by our government and human rights groups. Janice Bronwyn Linden, 35, from KwaZulu-Natal was executed for being caught carrying three kilograms of crystal methamphetamine at an airport in that country in November 2008. Her crime was the attempted smuggling of this dangerous drug into China. Under Chinese law the penalty is death by lethal injection, unless the accused is prepared to admit and express contrition, then clemency is considered. Janice refused to accept responsibility or express remorse.

No reasonable person can resist being flooded with emotion about the cold blooded putting to death of another human being. It always grates one’s inner spirit. We feel deeply disturbed. This is because we are human. It is inherently offensive to our nature that another human be killed in cold blood. The other reason is that we are “hot wired” to simply forget the plight of the victim at the moment in time that the issue is raised. In our mind’s eye we do not see the victim lying in his/her grave, often in mutilated state. We don’t think of little children orphaned after their mother had been raped and decapitated.

Still, all this begs the fundamental issue of whether or not there are some who deserve to be deprived of their lives. The debate on this matter, usually referred to the “abolitionist debate” has raged on for decades. I have sentenced 5 murderers to death. I have had plenty of time to think about this issue, not as an academic imbued with esoteric/exotic theoretical notions of justice, righteous morality and pontifical intellectualism, but as a person with a highly developed Christian conscience, who has had to listen to, and live through, the evidence in which one person purposefully decides that another be gratuitously and cruelly killed, sometimes in circumstances of utmost depravity, as when a baby is raped and strangled … slowly!

In my book “The Other – without fear, favour or prejudice”, I examine the arguments propagated by the abolitionist camp. The reality is that they simply fall down badly when subjected to logical, philosophical and moral scrutiny. For instance I point out that there is no dispute that I am entitled to kill a person I find raping and strangling my wife or child. It then becomes quite impossible to draw a line in the sand and say that “well at this point/stage you are no longer entitled to kill him”. However, this still does not mean that capital punishment should be practiced. In my view, it should not! However this is not for the reasons conventionally advanced which, as said, do not stand up to scrutiny.

What I want to also draw attention to is how fickle and hypocritical most of us are on this issue, no doubt! See --- http://coginito.blogspot.com/2011/05/osama-bin-laden-some-are-good-even-bad.html where just about the whole world was exposed in this regard. The post unarguably proves that the ancients were indeed right in their adage of an “eye for and eye, a tooth for a tooth…” howsoever much we may imagine that we now too “civilized” for such conduct. We are not! We are as barbaric as ever.
I concluded this in my book published last year and have just be proved right once again quite spectacularly The media is reporting that Saudi Arabia has just beheaded a woman after convicting her of practicing sorcery and witchcraft!? It is mind-boggling that one of the richest nations on this planet can do something so depraved and barbaric.

Janice Bronwyn Linden did not kill anybody. We also do not know if she was guilty. The standards of procedural and substantive justice in China are highly questionable. So this post does not judge her. We are all in sympathy with her family whose grief must be quite unimaginable.

What can be observed is that drug dealers, distributors and suppliers are responsible for untold human suffering and the terrible deaths of millions of our young folk in particular. To me this is not theory. I have been personally confronted with these truly heinous consequences. They don’t care tuppence how many lives are ruined or lost, as long as they can make money. The toll that they exact on humanity is unquantifiable. The Chinese logic is that they will take a life to save lives.

What is also pertinent to point out is that the Chinese have stated that under their law all are equal. For that reason Janice stood to suffer the same punishment that ordinary Chinese folk are subjected to. To that extent the Chinese cannot be faulted, if she was guilty.

This raises an analogous issue that has been in the media, the case of Shrien Dewani. A British Court has decided that he be extradited to South Africa to face charges involving the murder of his bride. The presiding judge was moved by a guarantee proffered by the SA government that, if convicted, Dewani would not be subjected to the same prison conditions as other SA prisoners. ???????

Put jurisprudentially, the British judge was prepared to subscribe to, support, connive and collude at persons beings being “unequal under law”. This is obviously highly offensive to any reasonable mind.

Also highly problematical about the judge’s approach is a failure to recognize that a government, whose term is limited to some 5 years at a time, is in no position to guarantee what the next government will do, accepting that, if convicted Dewani faces life imprisonment. The next government may well understandably (and correctly in my view) take a stance that it cannot be bound by an agreement in which a foreigner, in particular, is to favoured over its own citizens! Our constitution and laws expressly forbids unequal treatment.

Dewani needs to take the matter right up to the House of Lords. I humbly reiterate my advice that our government liaise with Switzerland, the country of the victim’s domicile, and get Shrien Dewani tried there!

The judiciary as a mistress.

In recent times the judiciary has been lectured, lambasted and repeatedly warned to maintain its place and to refrain from overruling the will of the people, as manifest in our ANC government’s decisions and laws. The President, the ANC Chief Whip and ANC Secretary General have all taken turns at this. This has happened even though the reality is that, if any judge does not understand that a judge must be apolitical, he/she is incompetent and should not be on the Bench. As an Acting Judge in the Eastern Cape I met many judges. I can give the categorical assurance that not one of them needs such lectures or advice. In fact it is grossly insulting. See “South Africa – a Constitutional Democracy under attack..”

There is now also a credible perception that, in addition, ANC leadership is implementing an agenda to “pack” the judiciary with “onside” judges, starting with the controversial appointment of Mogoeng Mogoeng, who was undoubtedly carefully handpicked for the post of Chief Justice, even though he was not the best candidate by a very long way. It is supposed that by having onside judges dodgy legislation, like the now internationally infamous Protection of State Information Bill, will be upheld by the courts.

If this is indeed the agenda, might I humbly, but passionately, advise and counsel ANC leadership to abandon it. It won’t work. It will not work! It will fail! I base my advice on my experiences as a judge and having attended international judicial conferences.

You see, once a human being is appointed as a judge, the psychological climate that he/she is then operating in is incredibly unique and different from that of the rest of us. It is a truism that judges lead lonely lives. Indeed they do, even though it is an incredibly fulfilling life. However it is not fulfilled by anything that any politician is able to offer. Once you appoint a person as a judge there is nothing more that you are able to offer, give or favour him/her with. Judges exist outside the circles in which assets, power and influence are traded in and dispensed.

Like any human being a judge needs personal affirmation on a continuous basis. That affirmation can only come from within judicial circles, not from outside. The judge becomes immersed in a world in which he/she is divorced from the hum drum of ordinary life and becomes preoccupied with developing a love for that which is good, that which is right, that which can be held up as truth for all to see. Truth becomes both the objective and the journey travelled, not polemics.

In addition, the way the system works, ensures that diversion from this path is quickly exposed. It is very difficult for a judge to give a bad judgment without soon knowing that he/she has stepped off the path and is losing the affirmation that we all crave. Your decisions and judgments are necessarily seen, considered and studied by your local and international community of judges, the legal sector, including legal scholars. It is members of this community that will react. You will then know, beyond doubt, whether or not you are in step or starting on a maverick path. Probably the worst maverick path a judge can chose to take is one in which he/she is then seen by his/her peers as beholden to a politician. It is about as reprehensible as incest. The psychological pressure is both overarching and subconsciously enormously insistent.

It was therefore not at all surprising to me when, despite the highly visible and loud warnings, admonitions and counsel, the Supreme Court of Appeal handed down a very keenly worded judgment that the appointment of Menzi Simelane as the Director of the National Prosecuting Authority was unconstitutional for being irrational.

Put simply, once a person is appointed as a judge he/she will feel compelled to start acting like a judge --- not a politician. Ask the previous Nationalist Party that burnt its finger very badly when it tried to “take over the Bench” by appointed “onside” people as judges. In my book “The Other – without fear, favour or prejudice” I explain how I always felt a “dual personality”.  There was Chris Greenland, an ordinary man, pretty terrified of the very Court he was presiding over, and there was Judge Greenland, who carried out a sacred office with due decorum. There were decisions that I handed down, which I did not “personally” support. However, as a judge, I was satisfied that they were right.

Lady Justice

So my appeal to ANC leadership is that, if that is your plan, don’t do it. Appointing people other than on merit will only result in South Africa having a mediocre Bench. As a result all citizens will eventually suffer.

It is not possible to have the judiciary as a mistress. The mistress will find love, comfort and satisfaction elsewhere. There is nothing you will be able to offer to keep her loyal.

Jackie Selebi

Further to what has been posted in Part 1, please read the outstanding article by Sunday Times editor Mondli Makhanya titled “Shame on those who sold our integrity to save their skins”.

The good, the bad and the ugly --- Part 1

Jackie Selebi

As reported by the Sowetan, here we have a man who went from hero to zero. It is said that he is now on a dialysis machine on account of chronic kidney failure. It would appear that Selebi started succumbing to health problems the instant he heard that the court had decided that he deserved to be incarcerated for some 15 years for corruption.
Ordinary human beings cannot but feel mixed emotions about the whole Selebi saga. Here is a man that made a very valuable contribution to our liberation. Now we are throwing him into prison for 15 years. Given that he is in his mid 60s, the sentence more or less means the end of his life as a free man.

I must be abnormal. I have no mixed emotions. I feel only a solemn exaltation that he is reaping what he has sowed. I have this picture of an arrogant politico, strutting about with complete disdain for our concerns. These included his relationship with a self confessed drug lord, Glen Agliotti. He gave us the proverbial finger saying “he is my friend, finished and klaar”. As our Chief of Police he should have been first in the fight against our pandemic levels of crime. Instead he was first as a corruption don. A more disgraceful course of conduct is hard to imagine, especially given the fact that he had somehow managed to wheedle his way to being head of Interpol as well. Wow! Selebi personifies the ultimate betrayal.

To him, our concerns were irrelevant. They were irrelevant in terms of a prevailing mindset, spawned in a well established climate of patronage. As a member of a new elite he was unaccountable to us ordinary folk. Being “more equal than others”, on our version of animal farm, he was entitled to do as he liked, when he liked and how he liked, whether we liked it or not.

Treating us as the ignorant foolish masses, he disdainfully claimed “these hands are clean”, fully expecting us, as sheep on the farm, to simply accept the word of one of our new breed of leaders. He saw himself as one of the “untouchables”. The arrogance was nauseating. The man was assured, comfortable and supremely confident that he was indeed untouchable.

He was; thanks to our then president Thabo Mbeki. Despite mounting information, propagated by our then free media sector, President Thabo Mbeki, made it clear that Selebi was his man and, as such, was untouchable, just as 'Manto' Edmie Tshabalala-Msimang (then Minister of Health) had been, despite proof that she was a convicted thief who had stolen from her own patients as a ward sister.

What the Mbeki camp, including Selebi, did not foresee was Polokwane. The 52nd National Conference of the African National Congress (ANC) was held in Polokwane, Limpopo from December 16 to December 20, 2007. By vote of “ordinary branch members” of the ANC Thabo Mbeki was removed as leader of the ANC and that guaranteed his subsequent removal as president.

Jackie Selebi lost his patron. He lost protection. He lost his status of being “more equal than others”. He reverted to being one of us, unprotected, vulnerable and accountable. The law jumped on him, took its course and visited him with what he fully deserved. A very big crook is where he deserves to be - in jail.

Lets us be thankful that, in this case, justice has been done, and seen to be done. For that we are thankful, firstly to the ANC’s marvelous process in which ordinary human beings have a voice to effect change that is needed. Secondly, we are blessed with the right to information that a free media deals in, for our benefit. This is now under severe threat on account of the now infamous Protection of State Information Bill. Thirdly we have independent courts manned by conscientious judicial officers acting without fear, favour or prejudice. This may also now be under threat, as there appears to be an agenda to “pack” the courts with “onside” judges starting with a carefully handpicked Chief Justice. 

A question that is arising is - will this big time crook actually serve his sentence? He has become "very sick" with exquisite timing. It is now being claimed that the prison hospitals do not have the capacity to treat him. Shabir Shaik was relieved of the obligation to serve his sentence on the basis of illness. There can be no doubt that Selebi is seeking the same indulgence.

Will he get it? He is a club member. He is part of the new elite. He is entitled to be treated as "more equal than others". Are we not on our own version of "animal farm"?

I would not take any bets on this. Really!

Dr Conrad Murray

As I predicted, the “bad” doctor has been rightly convicted by a jury of ordinary human beings, and sentenced by a judge to the maximum permissible under United States law.

Many have said that they see Michael Jackson (MJ) as the problem and Murray as a victim. Nothing could be more misguided. Like millions of other human beings on this planet, MJ was in serious trouble. He was a drug addict. His latest drug of choice was propofol. He did what he needed to do. He employed a doctor, at very generous remuneration, to help him manage his problem.

What Murray did was to firstly feed his patient with gallons of the drug. MJ was suffering from severe sleep disorder. Understand that propofol is not sleep disorder medication. It is an anesthetic. It does not induce sleep. It induces unconsciousness, so that surgeons can operate. Unless very carefully monitored, the patient can die. On TV this morning I watched a program where a vet was performing a small operation on the hoof of a zebra. His assistant kept his hand on the chest of the zebra throughout the operation so as to monitor the animal’s state of unconsciousness. Murray did not carefully monitor MJ. He did not have the equipment to do this. In addition he was busy phoning around, including phoning a girlfriend. That is when MJ died. Murray was not equipped to resuscitate his patient, and his “claimed” attempts were pathetic in the extreme.

In short Dr Conrad Murray played Russian roulette with his patient, and it cost MJ his life. Under our law I would have had no hesitation to convict of murder on the basis of “constructive intent”. Constructive intent is present when you can foresee death as a reasonable possibility and are reckless as to whether or not it occurs. That was exactly Murray’s conduct, sustained recklessness as to whether or not JM died.
The High Court in Cape Town has just convicted a Taxi driver, Jacob Humphreys, of 10 counts of murder for "recklessly' driving his vehicle across a level crossing, resulting in it being hit by a train. Note that the judge also said that Humphreys played "Russian roulette" with the lives of his passengers.
Murray ceased to be a doctor and became a drug dealer. Because of his criminal conduct the world lost the greatest entertainer of all time. Elvis Presley had the looks, the voice and the physique. Michael Jackson had the magic.

Justice has been done, and seen to be done.

COP 17             

It is the last day of this terribly important talk shop. The World descended on Durban. Many South Africans were led by our ministers in “feeling proud”. And yes, we do feel proud that we can host such an event, just as we all felt rather great to have hosted the Soccer World Cup.

Congratulations must be extended to our International Relations and Cooperation Minister, Maite Nkoana-Mashabaneour, who was the official host of the whole thing. She was always beautiful to look at, personable and marvelously upbeat, even when the going seemed to be bad, with the big powers like the United States, China and Canada, in particular, playing up.

Personally I don’t buy the argument that we are causing climate change. I am a 100% climate change sceptic. The science is quite dodgy, and is credibly disputed by reputable scientists. This planet has being undergoing cyclical periods of climate change from day one. That is a simple fact. In addition volcanoes and animals (burping and farting), in years past, pushed more greenhouse gases into the atmosphere than we have done in decades. That is another fact. The last and critically important fact is that whatever else scientist may disagree on, they all agree that they really have little understanding of how the planet used to have massive climate changes in the past. It is known that that the sun can play havoc with our climate. That is a fact. Sunspots have their own cyclical activity, and in days gone by there was no one to record and monitor this, as is the case now. 

However we do need to understand that the World, led by the United Nations, needs a big issue to be concerned about. The UN needs to justify its existence. Climate change is now perhaps the biggest industry on the planet. HIV/AIDS is losing its allure. We now have HIV/AIDS fatigue; no question! And climate change, which started off as “global warming”, until the proponents were embarrassed by reality, has developed into a very huge industry indeed. And as was the case with HIV/AIDS, serious money is being made by any amount of entities and people who are connected to the thing. It is big business, very big business.

Let me give you an unarguable example of the inherent lack of good faith/(hypocrisy) that the UN is infused with. As early as 1994 the UN got just about every nation to solemnly commit to taking effective measures to relieve the plight of road crash victims. Please note that over 95% of road crash victims are entirely innocent, as only one or more of the drivers can ever be actually responsible for a road crash. Next, and this is very important, road crash victims are the second biggest pandemic on this planet, after HIV/AIDS. In supporting documentation the UN published statistics that showed that, for many countries, the cost exceeded their entire aid budget. So in 1994, the UN was rightly gearing itself up to adopt the road crash victim issue as a major issue that we should all be concerned with. For reasons, that probably have to do with the fact that the whole insurance and legal sectors stood to lose, rather than gain, if the UN intervened on behalf of road crash victims it, in effect, abandoned its enthusiasm for this issue. So to-day we only have New Zealand, the State of Victoria in Australia, Botswana, Namibia and those few countries that have full scale social welfare, that have an efficient and effective victim orientated model for road crash casualties. Everywhere else the victim, who might be a five year old child, or even a child in utero, is left to find the guilty driver and fight with his/her insurer for justice.

I have tried strenuously to proposition the UN on this issue and have received hardly an acknowledgement in return. There is simply no explanation for the UN to be concerned about HIV/AIDS victims, (mostly self inflicted) and simply ignore the plight of the victims of the next biggest pandemic on this planet, other than crass hypocrisy and pandering to vested interests of big business. I challenge anyone to refute this.

Understand that whatever the UN decides to promote will have many takers. It provides huge opportunity at both personal and organizational levels. 

The other problem, regrettably, is the venue and/or host. The reality is that South Africa is one of the worst offenders when it comes to polluting the atmosphere. And what is more is that it is fully committed to continuing in this mode, with the building of the World’s biggest coal fired electricity power station posted as non negotiable. In all seriousness, would you host an anti-crime conference in the house of one of Al Capone’s gang bosses? It is somewhat obscene to hold SA as a credible leader on the matter of climate change.

It does bring to mind the Soccer World Cup. This was also hailed as a great success for SA. It suited international politics and SA that it be hosted here. The reality is that it cost a fortune for a country of scarce resources and conferred no discernable benefits. That much is no longer even argued. See --- http://coginito.blogspot.com/2010/10/my-world-cup-moment.html

Still I support the climate change initiative. Anything that makes us better planetary citizens is a good thing. We really do need to stop abusing the planet and other creatures. We are wasteful, predatory, irresponsible and downright venal as planetary citizens. It needs to stop.

I would encourage everybody to join Friends of the Earth International, whatever you may believe in.

And, once again, we must congratulate our Minister of International Affairs for a job well done.

Dear Leader, President Zuma - Road carnage

On a breakfast program this morning our President gave a solemn undertaking that citizens who have had useful ideas spurned in the past should come forward and elaborate. He guaranteed that these ideas would be reviewed as the current National Plan is intended to be fully inclusive.

Road Carnage

On 23 December 2010, the networks carried yet another story about the carnage on our roads. Some 20 persons had perished in a taxi pile up. Since that date the carnage has continued unrelentingly. By 27 Dec 2001 the number of persons killed was over 900.

The point to be made is that we are world leaders in the business of killing and maiming human beings on our roads, and have been for many years.

And for all these years we have indulged ourselves in crying, moaning, groaning … etc about the problem whilst perpetuating stratagems that have always been doomed to failure.

In late 2003 a certain female educator was accorded an audience with the functionary, charged with responsibility for Road Safety stratagems, at Department of Transport.

The then ailing Minister, Dullah Omar, had expressed great interest in what she had to offer, to the extent of extending her an invitation to attend a Road Safety symposium that he sponsored.

She had an educational product, devised over a long period, titled “RoadSafe”. It was multifaceted, and Outcome Based Education aligned. It rested on certain fundamental realities including –

a) current stratagems, prosecuted under Arrive Alive, were guaranteed to be ineffective (that much was already just about agreed by all except Arrive Alive itself);

b) concomitantly “more police”, “harsher penalties” and other “let’s be more draconian” measures were also doomed to failure;

c) the reason being, the simple but fundamental one, that the whole problem was steeped in a deviant road use culture;

d) which culture needed to be addressed on all fronts, starting in the schools where being “RoadSafe” should be embedded as a subject like any other.

As a starting point she had devised a board game for children as “tactile” experience is so important in a child’s learning experience.

The product however encompassed an approach that would involve all sectors of society as a “national’ commitment to “change road use culture” to one that was “RoadSafe” so that the concept, name and attitude became as natural as breathing over time; ingrained, embedded in the psyche of upcoming drivers in particular.

The paradigm proposition was that to continue as we were was equivalent to treating acne or other skin disorder with soap and creams when the underlining cause is a blood disorder.

Insanity: doing the same thing over and over again and expecting different results.

Albert Einstein

Her product had received the enthusiastic endorsement of the CSIR. That’s right. This important scientific government agency gave the “RoadSafe” its full endorsement.

The good lady was shown the door, after a short sharp lecture by the relevant female functionary at DOT, that she should understand that “we have our own programs …”

Eight (8) years have now been lost. During that time the road use culture has not changed one jot and thousands of people have been killed, injured, mothers widowed, children orphaned.

CSIR filed its recommendation. Minister Omar has sadly passed on. The “RoadSafe” concept/brand

sits on a computer in a suburban home in Pretoria, whilst mayhem rules on our roads.

What has also happened since the date she was shown the door is that an entity titled the Road Traffic Management Corporation (RTMC) has come into existence. Road carnage has continued. Interviewed by Jeremy Maggs on eTV on the 28th Dec 2011, the Acting CEO of the RTMC promised "viciousness" as a strategy to the problem. God help us Mr President! Maggs was constrained to point out to him that it was road use culture that was/is the problem!

So Mr President, might we take you up on your word, and draw your attention to this instance where being "unconnected politically" guaranteed that your useful voice as a citizen remained unheard.

 Current stratagems are proving hopelessly ineffective. The cost to the country needs no elaboration. It is horrendous on every count. This was predicted at the time the good lady was shown the door by the functionary at the Department of Transport.

Mr President, also please note that when we submit ideas to ANC branches, we do not receive so much as an acknowledgment, ever!

______________________________________________________

PostScript --- this was submitted to the President's Office, ANC Head Office, Gauteng Branch and SABC 2 on 21-22 Nov 2011. Not so much as an acknowledgement was received as at 27 Dec 2011. The SABC 2 breakfast show was thus no more than yet another pantomine, We are voiceless on this new animal farm.

In the meantime the death toll for the Xmas period was over 900 killed and thousands injured as at 27 Dec 2011.

South Africa -- Constitutional Democracy under attack by ANC leaders

In a previous blog post "Dubula ibhunu --- (Kill the Boer song) A Nation in Trouble" I had taken the stance that South Africa was in serious trouble, as it was apparent that leadership had little understanding of the imperatives of a constitutional democracy and that the President continues to be very badly advised. 

That I was not wrong is now beyond question in terms of the following (per Pretoria News 28 Sep 2011).

ANC CHIEF Whip Mathole Motshekga fired a shot across the Constitutional Court’s bow warning the highest court in the land to stay out of the fight over the controversial Protection of Information Bill.

Speaking to Jeremy Maggs on the E.News channel Motshekga went on to say that the ANC would not countenance the court striking down the Bill once passed by the ANC in Parliament.

“If people are defeated in a political arena, they want to substitute the will of the people with the will of the judges. Then we must redefine our democracy and how we want to manage our country” he responded. "It is not for judges to decide for Parliament, because that would be a gross violation" he said.

It should be remembered that the President had previously said at a conference of judges that - “the powers of the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections”.

"Zuma is criticising the Constitutional Court, saying (as the old National Party did in 1953) that it should not be above the sovereignty of Parliament; members of the South African Communist Party seemingly agree, contending that the constitution itself is outdated and should be changed, while Deputy President Kgalema Motlanthe declares it is sacred and the very bedrock of our democracy.

These are not mere disagreements on policy, and there are plenty of those. They are fundamental differences over the very nature of the state — as fundamental as it is possible to get in politics. What Zuma and the South African Communist Party are saying amounts to a repudiation of the covenant entered into by all parties at the Convention for a Democratic SA and consecrated by Nelson Mandela in his historic inaugural address in 1994.

A covenant to declare the new S A a constitutional democracy, in which the constitution is the supreme law to which all citizens, including MPs, Cabinet ministers and the president himself, are subject". [per Alastair Sparkd @ http://www.businessday.co.za/articles/Content.aspx?id=161501]

To date, the media has taken the stance that this constitutional democracy "may" be under threat. No one should be confused any longer; it is not under threat; it is under attack; robust, aggressive attack; and the ANC Chief Whip has served notice that the Constitution will be scrapped to remove the doctrine of separation of powers.

As a former judge, I am able to say with considerable confidence that the Protection Of information Bill, in its current state, has very little chance of surviving a court challenge. The Constitution requires the very opposite of what the Bill is attempting. It insists that information be made available, not restricted.

So we are being given due notice that when the courts do their job and strike down the bill, wholly or in part, the ANC will not accept this and will scrap the constitution to rid it of the separation of powers.

In a nutshell, what the Chief Whip is saying is that the courts are not there to countermand the will of the majority party - - even if the majority is wrong. A good example is the issue of the death penalty. 84% of South Africans support the death penalty, but the courts ruled against this. The decision of the courts has been accepted even though it is completely against the will of most people, let alone the ANC!

So, at a stroke, we can see that the ANC wants to have a situation where IT has a prerogative to "pick and choose" which court decisions it will accept -- AND also an unfettered right to decide what is the law, what is the rule of law, what are human rights .. NOT the courts!

We should all understand that the very essence of a constitutional democracy, and the doctrine of separation powers, is to ensure that all human beings, even the very lowliest, are protected  -- protected even against the will of the majority if necessary. It is often necessary. History has shown that the majority is often wrong. Just ask Socrates and Aristotle, persecuted for their brilliant minds of disagreement with the majority.

The passion with which the ANC wants to be able to conceal information is extremely worrisome considering that nothing has happened to date that indicates a need for concealment.

What we need to understand very clearly is that, although the Bill has been reported as "anti media", it is actually about shutting up and gagging ordinary citizens. The media are making a fuss simply because they deal in selling information. But this is about dumping our right to free speech in very large measure. So you stand to be imprisoned for that sms, tweet, FB post or any statement made in whatever form - if some faceless bureaucrat has classified the info as secret, whether you know of such classification or not.

So, South Africans. Take Note!. This is called the tyranny of might is right!

Judicial Independence

On 2 November 2011, this what President Jacob Zuma included in his speech at the farewell dinner for the outgoing Chief Justice:

 “Our view is that the Executive, as elected officials, has the sole discretion to decide policies for government. I know that the last time we raised this point, we generated a heated debate within the legal fraternity, some of whom did not see that it was actually an affirmation of the doctrine of the separation of powers.

This challenge is perhaps articulated clearly by Justice VR Krishna Lyer of India who observed that: "Legality is within the courts' province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule."

In our view, the principle of separation of powers means that we should discourage the encroachment of one arm of the State on the terrain of another, and there must be no bias in this regard.

We respect the powers and role conferred by our Constitution on the legislature and the judiciary. At the same time, we expect the same from these very important institutions of our democratic dispensation.

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.”

This now perhaps the 4th time that the President has felt compelled to lecture the judiciary on the matter of what is known as the "doctrine of separation of powers".

This is highly problematical, for the simple but very good reason that any judge who does not understand this doctrine should not be on the Bench of the Superior Courts. A judge who does not understand this is incompetent. A medical analogy would be that a doctor who does not understand what "intravenous" means would be incompetent. It is that basic. We can accept, beyond doubt, that the President does not believe that the judges are incompetent. So why these repeated admonitions?

Regrettably all the indications are that the Executive does not understand the doctrine as it applies in a constitutional democracy and/or is resolved in rejection. This is the only reasonable inference that one is compelled to draw on the evidence to date. It explains the repeated "warnings" to the judiciary.

These "warnings" will now have the following regrettable knock on effects: -

a)  Judges will undoubtedly interpret the situation correctly, and know that they are under scrutiny on the issue of being either "on side" or "off side" in relation to the Executive.

b)  As judges are human beings, they will experience conscious and/or subconscious pressure to comply with the wishes of the Executive.

c)  This, in turn, will induce conscious or subconscious bias in judicial approach, either "for" or "against" the Executive. 

d)  The recent controversial appointment of new Chief Justice will inevitably be seen as having been driven by a political imperative to have an "onside" judiciary.

e)  For the incumbent, it regrettably impacts negatively on his credibility and the issue of bias will have a subverting effect on his functionality both subjectively and objectively, regardless of how functionally independent he actually is.

f)   Should there be another split decision, like the one in which the Executive’s disbanding of the Scorpions was reversed, perception of a judiciary being split along "pro/against" the Executive lines will receive a huge boost.

g)  If the majority in such split decision turns out to be led by the new Chief Justice, the perception will be that the judiciary is now beholden to the Executive and no longer independent, regardless of whether or not the decision is jurisprudentially sound.

h)  In this way the credibility and stature of the judiciary will be comprehensively subverted and/or destroyed, locally and internationally. 

i)   For judges this will mean loss of stature and prestige. For the country this will also mean loss of stature, credibility and prestige. This will have a serious eroding effect on investor confidence.   

j)   The organically induced disrespect for the courts will have an insidiously aggravating on the climate of anomie that has undoubtedly had this country in its grip for decades now.

Observations:

There can be little doubt that the President continues to be very ill advised. It must be hoped that to-day’s appointment of Michael Hulley, as his legal advisor, will redress this situation. There are three (3) cardinal issues that Michael Hulley needs to make the Executive understand.

 (1) In a constitutional democracy the sacred duty of the judiciary is to jealously guard the letter and spirit of the constitution against all comers, including the Executive.

 (2) The inevitable consequence of this is that the Courts can, and must, overturn the will of the majority, even when passed by Act of Parliament. In any event, history has repeatedly shown that the majority is often wrong, badly wrong. It was the majority who screamed “"crucify Him, crucify Him". Two of the greatest minds in history Socrates and Aristotle were persecuted by the majority for saying that planet Erath was flat and revolved around the Sun. Socrates was put to death Aristotle had to flee.

"A word like ‘tyranny’ is interesting for its inevitable conjuring up of concerns about the tyranny of the majority, a misstep of democracy that judges – in their independence from the political process – are able to correct."       Writer Chris Geidner .   Commentary on the court decision overturning California’s Prop 8  In the Gay & Lesbian News Magazine.

 (3) As much as government may wish to have issues “"politically" resolved, every citizen, even the lowliest, has an absolute right to take a matter to court if he/she thinks, believes, even just imagines that the court’s protection/intervention is needed. The Courts have a very well established procedure for dealing with matters that are improperly brought, including summary rejection on the basis of being frivolous and/or vexatious, and punishing the applicant. That right therefore, does not stand t be questioned.

Lindiwe Mazibuko --- colour blind disciple of social justice

This beautiful, personable lady was interviewed by Leanne Manas on eTV this morning, 31 Oct 2011, on her success in securing leadership of the Democratic Alliance in Parliament.

Understandably she was heartily congratulated on her success, which congratulations she graciously accepted.

She was also propositioned, in countless different ways, on the issues of race, ethnicity and skin colour. That is where South Africa is to-day, after some 17 years since apartheid was deposed as government culture. Its not about her vision as leader in Parliament of the Opposition, but about her ethnicity??

As repeatedly pointed out in blog posts the national psyche of South Africa is infused with race, ethnicity and skin colour. It is a preoccupation and obsession that is eating away at the national psyche like a cancer, destroying progress towards nation building.

Because the colour “black” was posted as the central criteria for a human being to qualify for redress from apartheid disadvantage, under our Affirmative Action and other transformational models, there is now an inarticulate proposition in the subconscious mind of the nation that “Black good, White bad, Coloured/Indian/Chinese not too good”. This is the exact converse of what was at the heart of apartheid culture. 17 years after apartheid it is assumed that every Black person is disadvantaged in relation to every White person, even if such Black person is a billionaire. This has ensured that a "connected" Black elite is amassing fabulous wealth whilst the majority remain stuck in apartheid style poverty. 

The obsession has been evidenced by continual incidents of a subsisting racist culture in the corridors of power. Notable examples are Mike Stofile bitterly complaining that there was no place for Blacks in SARU after being beaten in a democratic election for the presidency of the South Africa Rugby Union by Oregan Hoskins, a Coloured. "I've been saying for four years now there is no place for black people in SA rugby and this is the final nail for black people in this country” Stofile lamented. As a Coloured Organ Hoskins had no right to oppose a Black.

Later there was the Jimmy Manyi saga, in which our chief government spokesman was shown on tape holding to the considered view that “there were too many Coloureds in the Western Cape … and that they should migrate to other provinces”. Cabinet then had to backtrack on a Bill that it had signed off on, which was designed to force Coloured migration from the Western Cape as employers would be forced to dump them in the workplace.

Despite such back tracking, the Department of Correctional Services has just been exposed for implementing a policy to give effect to the Jimmy Manyi racist doctrine. Manyi had also insulted Indians by postulating that they were “over-represented” at management level on account of their “economic influence”.

Just last week, none other than Julius Malema, flag waving populist leader of the ANC youth League, condescended to apologize for referring to Indians as “coolies”, a derogatory term. His apology sufficed. No other sanction, let alone condemnation, accrued. However he has declined to apologize for referring the Whites as "criminals" and “thieves”. Not so as regards Darren Scott, ace media sports anchor who was fired for calling a Black colleague a “kaffir”, also a derogatory term. The difference in the Malema and Scott incidents is that Scott is White and Malema is Black. As a Black person, Malema is “more equal” than Scott on our new “animal farm”, and his racist comments therefore more tolerable and unremarkable.

Leanne Manas did her job as a media journo. She put it to Lindiwe that there was a veritable deluge of comment from various Black spokespersons that she was simply not perceived as Black or Black enough! She put it in a dozen different ways, including the allegation that Lindiwe was a “coconut”, i.e., black/brown on the outside but with a “white” mentality. A long indictment from the "thinking like a black" camp was put to her. 

To her immense credit our good lady, Lindiwe Mazibuko, disregarded the accusations and declined to dignify them with any kind of  response. With the ease and grace of a person of immense emotional intelligence she simply declined to be dragged down into the pernicious quagmire of this obscene discourse and stuck to what matters in present day South Africa, i.e., the now dire needs of our people. Not once did she mention the word “black”, despite the very pointed nature of the questions put. It never appeared, for a nano second, that she would be distracted by this nonsense. Instead she spoke to the needs of our people and how she imagined that she and her party would be able to address those needs. To her, it is all about failed delivery, human misery and what needs to be done. It is all about hope for the future.

All right thinking citizens of South Africa, in particular, must salute this young lady. Not only is she educated, personable and skilled, she also has that most precious commodity, understanding. She understands that in a constitutional democracy race, ethnicity, skin colour are irrelevant. What is relevant is social justice. She understands, in particular, that you do not take the blindfold off Lady Justice and ask her to see differences in the race and ethnicity of human beings. She knows that to do so guarantees deterioration to systemic discrimination, victimization and other forms of injustice, such as xenophobia, as we have experienced in South Africa at horrendous levels.

Lindiwe Mazibuko, we salute you. You are a new brand of leader. You are refusing to turn South Africa into an “animal farm” in which some are “more equal than others”. You have understanding; understanding of the realities, understanding of human rights; understanding of social justice. You share this understanding with your illustrious colleagues Helen Zille and Patrica de Lille. It in this brand of leadership that provides hope for the future of this incredible country.

It is the hope that Martin Luther King Jr adverted to in his “I Have a Dream” speech and Nelson Rolihlahla Mandela imagined in his “Never Again” speech.

Justice --- must inform thinking

Justice (or fairness) is a word that is bandied about at all levels and is often used with great passion. We all imagine that, when we use the word “justice”, we mean what we say and say what we mean. It is also behind what we believe is right and what we think is wrong. It is fundamental because everyone will agree that, without it, life is intolerable. We don’t have to think about it … instinctively we all know that it is something we all must have … as human beings.

But do we know what justice is? Most people, when asked “what is justice?” will have trouble defining it, even though it is absolutely fundamental to human relations. I base this on actual experience in addressing human groups.

Despite this, people will enthusiastically, aggressively and even violently take a stance on what is wrong, or right, fair or unfair. We see this daily in Face Book discussions for instance, whether its about the killing of Muammar Gaddafi, the so called “land reform” in Zimbabwe, the treatment of Gays and Lesbians, the Israel/Palestinian conflict and a plethora of  other local and international affairs.

It is very frustrating to read the discussions, because they usually end the way they start, with each side still locked into the self righteous position they started with, after sometimes bitter "point scoring", regardless of what the opponent advances. The reason why parties to a debate stay locked in their positions is usually because the paradigm thinking, driving their stance, is steeped in religion, culture and/or political persuasion. Politics, culture and religion are boxes in which people find and keep themselves --- often with pride and great passion.

So we really need something that takes all of us out of our respective boxes, if any progress is to be made. These boxes can’t all be right … all of the time. After all, which box you find yourself in is usually a matter of pure chance, over which we have no control. You do not choose to be born Black. You will become a Moslem only because of where and to whom you were born. So too as regards whether you are an American or a Tswana, or Ndebele or Shona. It is all dependent on pure chance. And yet, we lock ourselves into the box in which we find ourselves in, espouse its gospel and imagine that we are right! Wow! How very silly we are. Really!

The religious box is perhaps the most pernicious. Religion is handed down from generation to generation almost exclusively by parents to their children. These children embrace the religion on account of parental influence and the environment they find themselves in. None of this occurs on account of any substantive cognitive process. And yet, generation after generation accepts unconditionally that their religion is "right" to the extent regrettably of being prepared to victimize, even kill, others in its defense and/or propagation. It is the most obscene/grotesque reality that more human beings have been killed and maimed in the name of religion than for any other cause.  It is obscene and grotesque because all major religions preach peace and love of humanity. 

What we need is something that is divested of our own box; something that applies regardless of race, ethnicity, religion, colour or creed.

Lady Justice

 Might I introduce you to this lady. She is beautiful; as beautiful as we all imagine justice to be. So feel free to ascribe her the beauty that you ascribe justice. She is called Lady Justice. 

What you will notice is that she has a sword in one hand. This is because, at a certain point, justice demands that there be punishment, sometimes very severe punishment. No one disagrees on this.

You will also notice that, in her other hand, she holds a set of scales.  This is where she weighs up the dispute. When we argue with each other we are insisting on what should go into these scales. Lady Justice puts us, and our arguments, in  the scales --- and proceeds to resolve the dispute by making sure that they are in a balance – neither having more than the other. Whatever else we may disagree on, we all agree that justice only occurs if, in the end, neither has more than the other. So that is why she has the scales; to ensure this balance.

Most importantly however, we see that Lady Justice is blindfolded! She was not always blindfolded. In her original version, as the Greek Lady, Thermis, she was not blindfolded.

Originally, at the time of the Greek goddess Thermis, and her daughter Dike, there was no connection between the notion of justice and that of fairness. Justice was a matter of fate, providence or in terms of the will of the gods. So untimely death, illness (even wealth and poverty) or other misfortune was seen as God’s will, fate, providence, or just being cursed.

 However conflict and human misery, experienced over centuries, proved, beyond all doubt, that she needed to be blindfolded, otherwise there would be still no justice.  Over many centuries man came to the realization that, in order for Lady Justice to do her job properly, she needed to be blind to the racial, cultural, ethnic, tribal, religious, social, political and other differences of those appearing before her.

Unless she was blind to difference there would never be justice. This realization is encapsulated in the 1948 United Nations Universal Declaration Of Human Rights, which absolutely outlaws distinctions based on status. Such differences are irrelevant to the sacred business of weighing up the disputants and their claims in her scales. Lady Justice does not see the box that you are in. 

All are equal before her. All are equal before her. All are equal before her.

The fact that you are a senior politician, or even a President, does not make your defense to a claim by a humble peasant any stronger. The fact that you are a Ndebele does not make you right and your Shona adversary wrong. The fact that you are ZANU-PF does not mean that your policy is more fair or just than that of the MDC. These “boxes” are simply irrelevant to the issue of justice, or fairness, or right and wrong.

In the result we must all agree with Malcolm X that --“I'm for truth, no matter who tells it. I'm for justice, no matter who it's for or against”.             

 “Justice and power must be brought together, so that whatever is just may be powerful, and whatever is powerful may be just". Blaise Pascal (French Mathematician, Philosopher and Physicist, 1623 – 1662”

“Injustice anywhere is a threat to justice everywhere”. Martin Luther King (Baptist Minister)1929 - 1968

“In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same”         Albert Einstein (Physicist)1879–18 April 1955

All of these statements need to be studied very carefully, considered and embraced, unconditionally . When you do, you need to first take yourself out of the box that you are in. The fact that you are Conservative or a Democrat, ZANU-PF or MDC,  Christian or a Moslem, Jew or Palestinian, Ndebele or a Shona, Black or a White .. etc ... are simply irrelevant.

You need to see your opponent, through clear eyes, simply as your equal, because Lady Justice does not see any difference between you.

Then you need to ask yourself the question. Do you love him/her as you love yourself … and/or … are you treating him/her as you would want to be treated.

 It is that simple. Really!

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