TAKING OUR CONSTITUTION SERIOUSLY
By Paul Ngobeni
No doubt the Bokone Bophirima Province is being subjected to well-orchestrated propaganda onslaught accompanied by calamitous riots and acts of hooliganism which threaten to erode the gains our country has steadily made.
In the name of anti-Mahumapelo agenda some journalists and alleged ANC dissidents have even attempted to provide political legitimacy to rolling mass action or chaos that has generated looting, arson, and mass deployment of police and the deaths of our fellow citizens. In this atmosphere it is baffling that, respectable members of society, including some leaders in the ANC and other parties represented in Parliament have opted to maintain deafening silence and failed to condemn xenophobic attacks unleashed against our compatriots and foreign nationals we are obligated to protect under international law.
For a long time, our government appeared unwilling or unable to intervene in the calamitous protracted strike by NEHAWU which has caused untold misery and left most of the provincial hospitals in the province totally dysfunctional. Distressing reports out of areas such as Klerksdorp were that critically ill patients lay unattended as “tsotsis” denied staff access to Tshepong hospital and asked doctors to pay R20 to enter their workplace.
Desperate doctors and nurses were eventually flown in by helicopter. But strikers then entered the hospital and forced the nurses to go outside, while overturning rubbish bins. Patients ended up serving patients. Clear evidence shows that the so-called “service delivery protests” which crippled entire hospitals were never about improving services to our people – they were instigated by “tsotsis” in collaboration with corrupt politicians hell-bent on removing Premier Mahumapelo from office by hook or crook.
Following the ANC Nasrec conference and resolutions, it was expected that some leaders would be subjected to unrelenting vituperative propaganda from enemies of the ANC. In the heat of the total propaganda onslaught, some ANC leaders disliked by regime change agents became victims. Very important duties of journalism, such as applying even-handed standards on human rights abuses and financial corruption, have all been corrupted and jettisoned by the demands of regime change propagandists. In this atmosphere vilifying or delegitimizing those who supported the losing ANC presidential candidate at Nasrec is the preferred weapon.
I agree that legitimate questions about alleged “corruption” by the Premier– or that of any other political leader – should be vigorously pursued. However, the standards of evidence should not be lowered just because he or anyone else is targeted to be demonized by the regime change agents. All committed patriots forthrightly regard corruption as an insidious cancer destructive of the well-being of a nation – it poses an existential threat to democracy itself. Indeed our courts have recognized that corruption “… offends against the rule of law and the principles of good governance. It lowers the moral tone of a nation and negatively affects development and the promotion of human rights..” S v Shaik & Others. Available evidence suggest that the Northwest provincial government is alive to these issues and has ordered many forensic investigations to ferret out corruption and the relevant findings and recommendations are being implemented.
Civilized members of our community and disciplined members of the ANC have unequivocally rejected the violence of the past few weeks. We are reminded that former President Mandela at his 1964 treason trial eloquently stated the basis for the African National Congress’s (ANC) decision to use violence to fight the violence of apartheid by stating that the decision was taken “when … all channels of peaceful protest had been barred to us, that the decision was made to embark on violent forms of struggle.”
But things have now changed as we have a democratic constitution that guarantees to us all the right to assemble and to protest in a non-violent manner. Section 17 of the Bill of Rights states that “everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”.
Further, section 12(1) of the Constitution guarantees for everyone freedom and security of the person, which includes the right “to be free from all forms of violence from either public or private sources”. Unlike Mandela, no participant in the recent violent protest can justifiably claim that all channels of peaceful protest had been barred to him. Mandela would certainly never agree that violent protesters should violate the security of persons in the name of service delivery or in order to effect the removal of a Premier.
Regardless of any perceived short-term political gains, disciplined ANC members and its leadership cannot be seen to be cow-towing to the demands of the violent few. Nor should they be lured into striking a bargain with them by agreeing to discuss the issue of ANC succession battles. If the ANC leadership allows the unruly rampaging mobs to sow the seeds of violence under the guise of service delivery protests, unborn generations will reap the whirlwind of social disintegration for many years to come.
Certainly, we must all be very scared about the moral compass of our country when right-thinking members of the ANC, human rights campaigners, the churches, NGOs and other self-proclaimed paragons of virtue remain indifferent to and fail to condemn the horrific xenophobic attacks perpetrated against foreigners in the past few days.
Our state, under international law, is obliged to respect the basic human rights of any foreigner who has entered its territory, and any such person is under the South African Constitution, entitled to all the fundamental rights entrenched in the Bill of Rights, save those expressly restricted to South African citizens. Xenophobia is not expressly outlawed as a crime per se so it hides behind other crimes such as murder, robbery, theft, assault, and defamation etcetera. It is unconscionable that journalists and leading figures from the tripartite alliance could ignore both our international law obligations and the fundamental human rights of foreign nationals and shamelessly hawk fictitious stories that the vicious attacks and looting were part of an anti-Mahumapelo protest movement.
The ruling ANC has an unavoidable duty to focus on instilling discipline within its supporters and the tone needs to be set both on the streets and in parliament or legislatures. As a ruling party the ANC must be very wary of appearing as if it only takes cognisance of certain communities when those communities resort to violent protest. By rewarding or romanticising the so-called a “rebellion of the poor” we are unwittingly encouraging persons to view violence as a means to be taken seriously by government.
In this way, a violent minority is enabled to exert a disproportionate amount of political power in a way inimical to any constitutional democracy. If the protesting violent minorities acquire disproportionate political power through their methods, what incentive is there for them to vote and seek changes through normal democratic means as required by section 19 of the constitution?
This section confers political rights on our citizens and guarantees their right to free, fair and regular elections for any legislative body established in terms of the Constitution and “to stand for public office and, if elected, to hold office.” The Constitution itself obliges every citizen to exercise the franchise through a political party. ANC members enjoy a constitutional guarantee to participate in its activities and their rights are protected not only against external interference but also against interference arising from within the party. Certainly rampaging violent mobs of alleged community members not subject to party discipline cannot be allowed to effect leadership changes within the ANC.
The remedial actions of a responsible government cannot be informed by unproven and untested allegations of corruption such as those levelled against the North West Premier. The ANC constitution appropriately strikes a balance between society’s interests in bringing wrongdoers to justice and an individual’s interest in preserving his constitutional rights – it stands firmly against lynch-mob tactics and public naming and shaming for the sole purpose of effecting regime change. The ANC Constitution Appendix 3 1.1 states that in all disciplinary proceedings there shall be a formal just and fair procedure. A member is presumed innocent until proven guilty and any accused member has a chance to defend herself or himself and has the right to appeal.
We must congratulate Cabinet for invoking of Section 100(1)(b) of the Constitution of the Republic of South Africa of 1996 to address the apparent crisis, particularly in the health sector. Section 100(1)(b) states that: “[w]hen a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation. Clearly the North West province was prevented by the protracted Nehawu strike, orchestrated protests action and widespread hooliganism from providing health care and other essential services. Further, the widespread violent criminal acts including attacks on foreigners were all calculated to threaten our national security.
Cabinet’s timely intervention will expose those in the ANC and Alliance leadership who were unwittingly colluding with the hotheads that continue with the rampage that is undermining our social and political stability.