The Weekly Whip

Party Elites in the UK and the US

2010-10-13T16:28:00.001+02:00

One usually associates elections with democracies in the modern world, not dictatorships. Competition in the political environment between varying parties is seen as a fundamental component of modern liberal democracies which, by their very nature, are an antithesis to dictatorships.[1] Dictatorships are characterized by a centralization and stranglehold on power by the ruling elite in that particular country.[2] The quote attributed to Lord Halisham[3] thus guides this essay in establishing the following about the political systems of the United Kingdom (UK) and the United States of America (USA): (1) that whilst both the UK and the USA are democracies, the real level of power which the people exercise is little allowing those elected into office to dictate the state’s agenda; (2) that the limits on such governments’ powers is very little which further entrenches the dictatorial-like qualities of those elected regimes; and (3) that greater activism on the part of citizens is required to ensure that this turned (of increasing governmental power) is turned around. This essay will contend that whilst there is an elective element to these forms of government, that the way in which they operate (as a ruling party and as a government) essentially allows them dictator-like control over the state and exercise of power.[4]

Before turning to the analysis which this essay postulates, a brief outline describing the main characteristics of the UK and US political systems is necessary.

The United Kingdom

The United Kingdom is a constitutional monarchy with a King or Queen acting as the repository of power within the state. The monarch is a titular head of state in that whilst the government acts in his/her name and he/she officially has the power to call upon any person to form a government after the election,[5] this power is heavily constrained by the customs and laws which have developed over time to limit the power of the monarch. Such a custom is that the monarch calls upon the leader of the largest party in the Commons to form a government.[6] The Prime Minister then selects his Ministers[7] that will help him steer through his agenda for his term of office. Given that there are two chambers on the British political system, the Prime Minister usually divides his appointments of Ministers between both Houses in such a way to ensure that each Department is at least represented by one person in both Houses at any time. This transfer of power has occurred as the result of a long process of struggle fro primacy between the Monarch, the Commons and the Lords. Ultimately it is the Commons that has triumphed and now has the monopoly on power as a result of its success.[8]

In the United Kingdom, parliament is sovereign meaning that the Executive[9] is answerable to it. Whilst the monarch has the right to call upon any person to form a government[10] it is the sole prerogative of the House of Commons to dismiss it through the passing of a motion of no confidence against the government. This happened in 1979 when James Callaghan’s government lost a motion of no confidence by one vote. The reason that the Commons wields such power is three-fold: (1) it would be near impossible and impractical to hold a referendum on the performance of the incumbent government especially when considering that this would effectively be an election with no (binding) result;[11] (2) it is the democratically representative chamber and is said to exercise the will of the people; therefore according to the representative model of government the people that are chosen as the representatives of the electorate (MPs) must and will best exercise their judgment in such a way that it will be in the best interest of the voters and not use their position to serve themselves;[12] and (3) it is not beyond reproach for the way in which it exercises its power, unlike the Lords and the Monarchy both of which are not elected and are thus unaccountable to the electorate who are directly affected by such decisions.

The United Kingdom uses a first-past-the-post electoral system. This is a system whereby the country is divided into various constituencies of similar voting size.[13] In order to get elected to Parliament and represent any constituency as its MP, any person need only win the largest number of votes within their constituency from amongst all candidates. This means that after all constituencies have chosen their MP, the party with the most number of MPs/seats – not necessarily the highest number of votes – can form the government.[14]

The United States of America

The United States of Americ is very different to the United Kingdom primarily for the reason that the modern USA was founded out of a rejection of the UK and its political customs and traditions.[15] Accordingly it must come as no surprise that the USA has radically altered its political system tailoring it to its own needs.[16]

The USA is a constitutional republic which strictly adheres to the policy of a separation of powers between the Executive, the Legislature (Congress consisting of both the House of Representatives as the Lower House and the Senate as the Upper House) and the Judiciary.[17] It is a political system that does not allow for an over concentration of power in any single institution of government and implicitly supports the principle of checks and balances, namely the position where one institution cannot exercise so much power so as to achieve primacy over the other two.[18] Usually, in order for a law to be passed or any other state action to be considered legitimate, it requires that at least two of the institutions (the majority) have to work together.

The Executive branch of government is independent of the Legislature and is under the leadership of the President.[19] Unlike in parliamentary systems, the Executive is very powerful and has the (constitutional) scope and ability to carryout widespread political objectives except in certain circumstances – such as the passing of the Federal Budget – for which it is essential that the Executive receive the support of the Legislature as per the principle(s) illustrated above. Unlike in the United Kingdom specifically, the United States of America has a sovereign constitution which means that it is the express and implicit provisions of the Constitution that take primacy over the state and its actions. Whilst this may lead people to argue that the judiciary in this instance defies the principles set out above,[20] this is not really the case given the intrinsic involvement that the other two instructions play in the appointment of judges[21] – thus ensuring that the country becomes a ‘judocracy.’[22]

The USA is a federal system of government which means that power is devolved between the various levels of government at federal, state and local level.[23] Whilst this division is not mutually exclusive to the USA, this type of devolution in that the different spheres of government are autonomous to varying degrees and have complete/cooperative jurisdiction over certain issues as the constitution (and subsequent jurisprudence) provides for. The aim of this form of federalism is to locate power as close to the people as possible so that they may (1) be direct recipients of the exercise of such power; and (2) hold that sphere of government to account with the greatest ease ensuring that at all times it speaks to their own localized needs. Interestingly, states were not defined in the US Constitution but were seen as pre-existing components of the states considering the confederate history of the US and the subsequent wars that were fought to unit it. There are several arguments both in favour and against federalism which will be discussed at greater length later with respect to how it contributes to the US being an elective dictatorship.

Why Party Elites Control State Power Beyond that Invested in them by the Electorate

This essay will at no times argue that party elites (i.e. the highest decision-making bodies of political parties)[24] should not exercise power when they come into office. It is a sine qua non of governments from across the political divide as it makes administration easier and less complicated than having to have large decision-making bodies make important decisions despite their being subject to internal fighting and lobbying and jockeying for position. Whilst this is not mutually exclusive to larger decision-making bodies and may be present in smaller decision making bodies, as it often is, it is obvious that larger decision-making bodies are more susceptible to such conditions as they allow for a greater access to power and more movement within the group itself. A smaller decision-making body by its very nature requires a cohesive and unified body.[25]

However, the following mechanisms used by the party elites (discussed individually below) allow them to exercise an almost dictatorial-like power over the party machinery and thus allow them to exercise a similar power over the state.[26]

1. Systemic Reasons

There are reasons which allow party elites to control their own parties even where (a) the Members of the Party itself disagree with the decision of the party elite; or (b) where that decision may be unpopular with the electorate but the part elite manage to get it endorsed anyways.[27]

There are 2 primary systemic reasons.

Firstly, the party structure allows the elite a great degree of influence in the candidate-selection process. Whilst this may be hardly applicable to newcomers, it is important when dealing with incumbents who are seeking re-election: party loyalty may be used as a criterion to determine the overall performance of the candidate and whether they deserve re-selection. The danger with this kind of process is that it may intentionally be used against independent-minded candidates who rebel against the party elite by measuring such rebellions in a quantitative rather than qualitative way. This then ignores the reasons for which a person may vote against their own party (ignoring justifiability or popularity with the electorate)[28] and rather counts the mere number of times that they may have done so. This may however apply to newcomers in the sense that newcomers in order to be selected may be made to sign various pledges to the effect that they will not rebel against the party or alternatively, that they will be made to believe that if they were to rebel against the party they will have no such long term political career which one would believe is the underlying reason for their getting involved in the first place (in addition we hope to a willingness to serve the people).[29]

Secondly, once a representative is elected, their promotion depends on their performance which is linked to the way in which they are viewed by the party elite. It is unlikely that a rebel will be brought into government as they had previously been working against the very body which they are part of. Those in whom such powers of promotion are vested will avoid promoting such persons even if they are deserving of it by an objective standard, for the subjective reason that the representative concerned did so much damage to the government. This means that representatives who have the skill and capacity to go on to becoming Ministers are forced to choose between standing up for their principles or sitting doesn’t in favour of promotion. Whilst the party elite may benefit from keeping the rebel out, it is the people who suffer for it as the party elite then abuse their position of power to govern in their own interest rather than in the interest of the nation as a whole. Conversely, some leaders may intentionally bring rebels into the government as (i) bringing them into the government creates the perception that they are being listened to and often silences them in the public as they now have direct access to power and can raise their concern, etc in private (this is especially good for the government if the issue in question is popular with the electorate);[30] (ii) allowing the rebel the spoils of high public office then incentivizes them to support the government rather than oppose it for fear of losing out on those benefits which may make their political life (a) more prestigious; (b) more comfortable; and (c) more rewarding in the sense that the access to office allows them to better pursue and advocate their positions of interest. Such buy-in then allows their opposition to be muted.[31]

2. Patronage

Party elites when in office have access to vast sums of money through their control of government agencies and departments. This means that they have the ability to, under the guise of official government business,[32] allocate resources and money that they would not have had access to otherwise, to projects that have the ‘positive’ externality of securing the party’s (and thus their) primacy and future victory.[33] The government can do this through the strategic allocation of money to the different categories of seats that exist in its political system: (a) seats in which they hold the majority; (b) seats which they hold the majority by a narrow margin; (c) seats which they can win if there is a sufficient swing vote;[34] and (d) seats that they do not hold.

Party elites buy the silence (and non-opposition) of their own members by incentivizing collusion with the elite itself. Members who hold onto those respective categories of seats (category (a) and (b)) or who want to hold onto the seats (category (c) and (d)) are incentivized to work with the party elite rather than oppose them even where this may be the right/justified thing to do.[35] In each of these instances, the party elite has the ability to manipulate the desire for incumbency amongst its own members to ensure their discipline.[36]

This is owing to the fact that in category (a) seats, despite representatives enjoying a majority, representatives would be unwilling to stand up to the party for fear that (i) the party could withdraw its support for the individual representative which may have to trigger a by-election or alternatively which isolates that person from a traditional support base, their colleagues and friends, and the institutional support which the party offers its representatives; and (ii) their opposition to the party elite would result in them either becoming grossly unpopular in their constituency if the support that they enjoy is as a result of party loyalty amongst the voters rather than loyalty to the individual or alternatively being thrown out at the next election if their opposition starves their constituency from necessary resources. Whilst the calculation in the second instance is more risky for the party elite especially if they possess a slim majority, it may work out in its favour when considering the long term implications of that decision – namely getting rid of an uncooperative representative in favour of a loyalist party member that would not stand up the elite but rather support it. This is especially the case where elections happen regularly and there is little time between them so as to turn that constituency in its favour.

In category (b) seats, it is highly unlikely that these representatives would vote against the party elite due to their weakened position: namely that they are most vulnerable to changes in electorate behaviour as they have only managed to win their seats by small majorities. Standing up to their party elites – who bring with them vital infrastructure, funding contacts and experience – are huge disincentives to take such a risk. This is especially applicable to newcomers to the political game who the party elites select for those seats in the first place so as to ensure their dependency on the party elite insofar as fostering a long-term political career is concerned which in turn ensures their subsequent reliability (as payment for such support in the first place, to pay off the feeling of indebtedness); and secondly as they not want to take any risks that may jeopardize their long-term ambitions. These types of representatives are the most dangerous to have within a party as they often feel beholden to the party leadership who wield an inordinate amount of power over them: should they stand up to the leadership of the party, given their relative inexperience, it is unlikely that they shall succeed against another candidate that is endorsed by the party elite. This is also relevant in that the mere stigma of being dropped by the party establishment is enough to turn voters away as this is often interpreted negatively by the voting public. Should the person occupying this type of seat be older or of greater experience then a newcomer, it is not difficult to imagine that they would feel a greater sense of obligation towards the party elite as if they are the former, there is greater individual risk that they incur in getting involved in politics (especially if they are established in another field/industry as if often the case) and then having to leave after barely settling in, or the latter where they would have had little or no experience of the outside world and where their employability is limited to things political, jobs which are in and of themselves narrow to come by and probably do not carry as much influence, prestige and power as the incumbents are used to.

In category (c) seats, we see that there is a direct interest of the party elite to allocate resources to these areas. This is owing to the fact that if the government is to ensure that any developments in that locality are associated with them and not the incumbent representative, they create the perception that the incumbent and the role he plays in securing them such services is obsolete. This builds up party loyalty which can translate into an election victory at the next election where the marhin of victory for the incumbent is narrow. Further, and interestingly, incumbents in these types of seats also have a difficult time in repudiating the government’s efforts as if they were to do so and the quality of life in those localities were to decrease, then the incumbent would be directly responsible in the eyes of the electorate. Conversely, if he encourages the government, he runs the risk of either seeming to be a sell-out to the other side which disincentivizes the voters he could have normally depended upon to vote for him in future (thus increasing the proportional size and chance of any challenger to unseat him)[37] or making himself obsolete in the process as the government would be supplanting his presence in his constituency. Challengers (from the same party as the ruling party) who then manage to take seats like this in future elections then move from being in category (c) seats to category (b) seats and for which the analysis above would then apply to them.

Category (d) seats are the most interesting types of seats. This is owing to the fact that the government could try a similar approach to the category (c) seats to this category but the prospects of success are very minimal. However, because these seats do not exist in isolation and form part of the rest of the country and whose socio-economic circumstances may need the help and input from the central government, we see that these bastions of the opposition party are also allowed to be co-opted into the ‘electoral dictatorship’ given that they have a vested interest in ensuring that their respective constituencies are granted the money and programmes that are necessary to for them to improve and which have the positive externality of increasing those representative’s popularity. This is typified by the USA’s Blue Dogs.[38] In this particular instance we see that the constituency-based electoral system allows the individual representatives to break with a uniform position taken by the party leadership when it is in the best interest of their electors (usually a good thing) but that this can be manipulated by the government when applied to opposition members and buying their cooperation on a series of issues in exchange for listening to them on others.

In each of the above examples we see that party elites are able to go to great lengths to limit the opposition they face and thus behave as ‘electoral dictatorships.’ Through the manipulation of the incentives that exist for representatives we see that they are able to solidly their own primacy and ensure that both members of their own party and members of the opposition buy-in to their programmes through the offering of various awards that are necessary for them insofar as ensuring that service delivery (both perceived and actual) occurs.[39]

Can the Judiciary Limit the Power of the Electoral Dictatorship?

Whilst in both the UK and the USA the judiciary has the power and the ability to overturn the decisions of the government[40] (which we have referred to as the electoral dictatorship) in reality we find that this power is greatly undermined by three factors.

Firstly, the Judiciary is incentivized as an institution to remain in tune with and give effect to popular trends within society. This occurs in two ways: through assimilation and application. With respect to assimilation, judges do not exist in isolation to society. They are influenced by the discourse within any state and further are subject to their own beliefs and prejudices. Accordingly, they may have an inherent political bias or prejudice towards the government. In the case of the former, the result of this is that the judiciary continues to be seen as a legitimate institution which gives express view to the opinions of the majority. In the case of the latter (or where the interpretation of law given by the judges is discordant with the popular views in society) there is the propensity for the judiciary as an institution to become increasingly obsolete either through their own doing (as the gap between normative concepts of rights and the reality of daily life increases) or through sustained governmental attack – which the government is not above doing especially where the judiciary stands in the way of it monopolizing its political power and legitimacy. We see therefore that these choices (and the opportunity cost) of making such decisions which pits the judiciary against the government acts as a direct disincentive for the judiciary to not undermine the power of the ‘electoral dictatorship.’[41]

Secondly, in both the UK and the USA, both the incumbent governments have great influence within the appointment process of judges. This in and of itself seems, prima facie, to be in violation of the separation of powers principle. The government as an institution should not be allowed to appoint those judicial officers who in the future may need to hold that same government to account. Whilst insulated by things such as security of tenure and arduous procedures through which they may be removed from office, this does not eliminate the propensity for these judicial officers to use their office in favour of the government which allowed them to ascend to the pinnacle of their career. Whilst subject to public scrutiny, we see it is those same safeguards that protect the judiciary from open and unadulterated interference that also protects them from open and unadulterated critique (even though such may be justified). This is further emphasised by the fact that any judge who manages to get appointed, particular in the USA, where they are subject to intense politicalization of the appointment process are not only an aggregation of political interest from opposite ends of the spectrum, but also a compromise candidate who may not feel comfortable kicking their gift horse in the mouth.

Thirdly, judicial undermining of the government gives rise to the counter-majoritarian dilemma. This speaks to the situation where the judiciary, through a strict or unpopular interpretation of the Constitution is said to effectively disallow the ‘will of the majority’ to be given effect to by their elected representatives. In such a case judicial authority disallows the express will of the majority of the people – which is a fundamental tenet of democracy. Further, there is the problem of the democratic deficit. This is similar to the problem of counter-majoritariansim in that it highlights the problem with the judiciary in that they have no real sense of accountability to the elected structures of government.[42] In each instance, the judiciary is disincentivized from undermining the government as it realises the importance of an engaging electorate which, if they continue to undermine the government they have elected, they may contribute to increasing the apathy amongst voters.[43] This in and of itself is bad owing to the fact that a minority government may come to power as the proportional sizes of voting support groups changes (increases in relation to others) whereas actual numbers of voters decreases.[44]

Can Greater Voter Activism Turn this Trend Around?

Two primary examples of voter involvement show that there is potential for the turn-around of political elitism in the UK and the US. Militant Tendency[45] and the Tea Party Movement[46] respectively. Without going into the merits of each movement (which lie outside the scope of this essay), there are two conclusions that the establishment of these movements can show us:

Firstly, that grassroots organisation and infiltration tactics of the establishment parties can bring about change. Whether that change is sporadic or sustained depends on whether or not the persons committed to these movements are willing to subject themselves to possible marginalization by the party elites. If they are willing to withstand such pressures, the movements may be successful in allowing for a repositioning of the party to which they are attached. The success of such repositioning with respect to winning votes depends yet again on the considerations of the circumstances in which the exist, however the mere fact that it happens (i) peaks voters interests as to the party and its matters; and (ii) acts as an incentive for other moderates/people who are not involved to get involved as it demonstrates that their involvement within the party is not for no reason at all and that they may attain some degree of success.

Secondly, that party elites respond to such pressures only when they themselves and their primacy within the organisation (irrespective of whether they are in government or in opposition) are challenged.[47] The threat of losing their incumbency and the access that it allows to further opportunities means that when people threaten that – and in the case of voters when they vote strategically to put pressure on their representatives – party representatives are more likely to feel beholden to those issuing the threat. In the case of voters, this undermines the party elite and ensures that representative democratic model of government is given greater effect to.[48]

Conclusion

Even though one associates democracies with competitive elections, this essay has shown that in certain circumstances, specifically in the case of the UK and the USA, the governments are dictatorial in nature despite the fact that they may have been elected into office. Even though there may be elements of competition in these systems, it is difficult to ensure that the true intention so voters will always be spoken to by elected representatives. The complete hold on power which they enjoy and the lengths to which they are willing to go in order to ensure their incumbency and primcy through manipulating the incentives of individuals from their own and other parties indicates that Lord Hailsham’s critique of modern governments in accurate and applicable.

[1] Democracies are governments in which “supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.” http://dictionary.reference.com/browse/democracy.
[2] Dictatorships are a system of government where the rulers of that country exercise “absolute, imperious, or overbearing power or control” over the rest of the population. http://dictionary.reference.com/browse/dictatorships.
[3] http://en.wikipedia.org/wiki/Quintin_Hogg,_Baron_Hailsham_of_St_Marylebone.
[4] Jones, P. R. and Cullis, J. G. 1986. Is Democracy Regressive? Public Choice. Vol 51. No 1. pp 101 – 107.
[5] It is convention from the 20th century onwards that the Prime Minister should be a Member of Parliament sitting in the House of Commons. This is such a strong convention of the British political system that the last Prime Minister who was appointed whilst in the House of Lords, Sir Alec Douglas-Home, renounced his membership of the upper House so that he could contest a by-election to sit as an MP in the House of Commons which he did. This is symbolic of the modern development in the British system that it is the House Commons – as the chamber most representative of the Commoners/everyday men and women of the United Kingdom – which has the moral and political legitimacy to exercise power and govern the country given its election by to that position.
[6] Should he be unable to do so given that he does not command a Commons majority (i.e. his party has the most number of seats in the Commons but does not have an outright majority) he is entitled to form a coalition that would be in the majority. This is what happened this year after the results of the UK 2010 General Election allowed the Conservative Party to hold the most number of seats in the Commons whilst falling short of an absolute majority. The Rt. Hon. David Cameron MP (the leader of the Conservative Party and now the Prime Minister) was called by HRH Queen Elizabeth II form a government, which he did despite his lack of an absolute majority as he had previously agreed to form a coalition with the Liberal Democrats (under the leadership of The Rt. Hon. Nick Clegg MP) which allowed both parties sitting together to command a Commons majority. This is seen as a better alternative to forming a minority government where the party with the largest number of seats but not an absolute majority attempts to govern for as long as it can until such time that it looses the confidence of the House upon which it relies to carry out its political programme. Such was the case with the government of The Rt. Hon. James Callaghan MP.
[7] Secretaries of State (and other invited persons, such as the Chief Whip) being entitled to sit in the Cabinet and are allowed to be referred to as “the Right Honourable” by virtue of their appointnment to the Privy Council; Ministers of State (some of whom may be appointed to the Privy Council for special reasons such as sharing a close political connection to the Prime Minister or for long service, as in the case of The Rt. Hon. Oliver Letwin MP) who serve in various Departments under Secretaries of State; Under-Secretaries who serve below Secretaries of State and Ministers; and Private Parliamentary Secretaries who are not official government Members but who provide political assistance to Secretaries of State/Ministers as the case may be.
[8] For a brief history on the history of Parliament see: http://en.wikipedia.org/wiki/House_of_Commons_of_the_United_Kingdom.
[9] i.e. the Prime Minister and his Government.
[10] Note 4 supra.
[11] Wolbrecht, C. and Campbell, D. E. 2007. Female Members of Parliament as Political Role Models. American Journal of Political Science. Vol 51. No 4 (October).
[12]Indeed when it comes to voting against their own party in a motion of no confidence (possible although not often the case), MPs are expected to be selfless as they are expected to dismiss a government if they are deserving of it even though (a) they may be voting against their own party (and friends); or (b) the onset of a new general election – which a successful motion of no confidence initiates as a method of replacing the government in which the Commons as the representative chamber of the people – may result in them losing their own seat (especially if on the losing side).
[13] i.e. with a similar number of electors although not necessarily the same size geographically.
[14] Joyce, Peter. 2006. Teach Yourself: Politics. Reading, Berkshire. Hodder Education.
[15] Pancer, S. M., Brown, S. D. and Barr, C. W. 1999. Forming Impressions of Political Leaders: A Cross-national Comparison. Political Psychology. Vol 20. No 2 (June). pp 345 – 368
[16] Heywood, Andrew. 2007. Politics (Third Edition). Hampshire and New York. Palgrave Macmillan
[17] http://www.businessdictionary.com/definition/separation-of-powers.html.
[18] http://www.merriam-webster.com/dictionary/checks+and+balances.
[19] This further reemphasises the separation of powers doctrine as the President may be of one party and the Legislature may be in the control of the other. This allows a further bulwark against the overwhelming powers of the Executive and vice versa. This was the case with President Bush post-2006 midterm elections where his own Republican party lost control of Congress to the Democrats which allowed the Democrats to then use their position as an opposition party in control of Congress to curtail the President’s programmes initiative which they – and seemingly the electorate – were opposed to by virtue of being elected as the majority. The positive externality of this system of government is that it allows the electorate to curtail the powers of the President midterm (as happened with Bush Jnr. in 2006, his term ending in 2008) without having to necessarily incur the expense and the logistical burden of a general election. It also acts simultaneously as a referendum on the president’s performance thus far – a poor result indicating that more work would need to be done to secure a second term/that his or her predecessor from their own party has a better chance of winning; whilst a good result boosts the President’s legitimacy and chances of re-election (or in the case of a second-term President, the chances of allowing his own party replacement to succeed him). This happened to Presidents Clinton and Bush Jnr.
[20]See an example of this at http://theweeklywhip.blogspot.com/2010/05/judicial-independence-in-south-africa.html (concerning South Africa’s Superior Courts Bill [2006] and a possible argument as to why the judiciary wields too much power in a democracy).
[21] Note 14 supra for further arguments as to why judicial independence is both legally and politically sound in a democracy.
[22] http://www.indianexpress.com/oldStory/6058/.
[23] Wilson, J. 2008. American Government. USA, Houghton Mifflin Company.
[24] In the UK where there is a more rigid and unitary party structure, this usually refers to the Leader of the Party and his Executive structure of the party – many of whom sit in the government as Cabinet Ministers, etc. In the US this is somewhat different given the country’s federal nature and refers to the decision-makers at the highest level of the part who collude with each other to ensure that the President is able to carry out his agenda. This extends to State Party formations which may use their influence and control to reign in errant Senators/Congressman who threaten the President’s primacy.
[25] Caprara, G. V., Barbarnelli, C. and Zimbardo, P. G. 1999. Personality Profiles of Political Parties. Political Psychology. Vol 20. No 1 (March). pp 175 – 197.
[26] It is important to bear in mind that in the UK the government usually sits with a majority. This means that an opposition will only be successful in managing to defeat the government – even where the government deserves to be defeated – if members of the ruling party (usually those on the backbench) turn against their own leadership. See http://news.bbc.co.uk/2/hi/uk_news/2802791.stm for a chronicle of the rebellions that were suffered by the Blair Government. Despite none of them being successful (although many of them should have been) it illustrates to what degree the party elites are able to silence internal dissent when it is often the only type of dissent that may succeed. This essay will point out a t a later stage as to how this will not even happen in the case of a coalition despite the propensity for disagreement as is the case currently in the UK. In the United States, whilst this is not always the case (that the President and his party are in control of both the Presidency and Congress at the same time), we see that: (a) in scenarios that they are, the issues pointed out to by this essay occur anyways; and (b) in scenarios where they are not, the President still has the ability to court members of the opposite party to assist him for whatever reason (explained later) to get his initiatives passed through Congress.
[27]Howard, P. N. 2005. Deep Democracy, Thin Citizenship: The Impact of Digital Media in Political Campaign Strategy. Annals of the American Academy of Political and Social Science. Vol 597 (January). pp 153-170
[28] Parties may do this even if it means losing a seat for one election cycle so that they can get rid of persons they deem damaging to their cause.
[29] Williams, P. 2004. Who’s Making UK Foreign Policy. International Affairs (Royal Institute for International Affairs 1944 – ). Vol 80. No 5 (October). pp 911 – 929.
[30] See John Major’s appropriation of Linden B. Johnson’s maxim: it’s better to have the bastards in the tent pissing out, than outside pissing in.” http://www.guardian.co.uk/politics/1993/jul/25/politicalnews.uk.
[31] Crowley, J. 2001. The Political Participation of Ethnic Minorities. International Political Science Review. Vol 2. No 1 (Jan). pp 99 – 121.
[32] Which is supposed to be non-partisan by virtue of the fact that it is done on behalf of the state that is supposed to be equally accessed by all people living within the state as well as to provide to them.
[33] Referred to as “pork barrelling” in the USA. http://www.answers.com/topic/pork-barrel.
[34] http://www.thefreedictionary.com/Swing+vote.
[35] Klein, Joe. 2006. Politics Lost. New York. Broadway Books.
[36] Dworkin, R. 2006. Is Democracy Possible Here? Princeton University Press. New Jersey. Princeton.
[37] This obviously ignores the wrath he would face of his party colleagues that may or may not take kindly his so-called collusion.
[38] http://www.c-span.org/guide/congress/glossary/bluedog.htm.
[39] Novkov, J. 2008. Rethinking Race in American Politics. Political Research Quarterly. Vol 61. No 4 (December). pp 649 – 659.
[40] In the UK this is through the application of legislation such as the Human Rights Act 1998 which gave effect to supranational legislation (European Convention on Human Rights) that allows for such a power. In the USA, much like in South Africa, the power of judicial review is guaranteed by the Constitution.
[41] Kennedy, H. 2004. Just Law. Vintage. Great Britain. London
[42] Both the ‘counter-majoritarian dilemma’ and the ‘democratic-deficit’ are explained in Corder, H. 2009. Judicial Authority in a Changing South Africa. University of Cape Town..
[43] Aarts, K. and Semetko, H. A. 2003. The Divided Electorate: Media Use and Political Involvement. The Journal of Politics. Vol 65. No 3 (August). pp 759 – 784.
[44] Sanders, D. and Norris, P. 2005. The Impact of Political Advertising in the 2001 UK General Election. Political Research Quarterly. Vol 58. No 4 (December). pp 525 – 536.
[45] http://www.militant.org.uk/.
[46] http://teapartypatriots.ning.com/.
[47] Holcombe, R. G. 2005. Government Growth in the Twenty-First Century. Public Choice. Vol 124. No 1/2 (July). pp 95 – 114.
[48] Yule, V. 1985. Representative Government. Political Psychology. Vol 6. No 3 (September). pp 519 – 524.

The Record of the TRC: A Critical View

2010-10-07T12:41:00.001+02:00

The Truth and Reconciliation Commission (TRC) was devised as both a political and legal response to the phenomenon of Apartheid. It was envisaged that the TRC as an institution, would facilitate the healing of the wounds that Apartheid – and the response it inspired – inflicted on South Africa as a nation. Whilst the TRC did achieve some degree of some success,[1] the TRC has been roundly criticized on two fronts: firstly with respect to the granting of amnesty (as in the case AZAPO v President of the Republic of South Africa[2]); and secondly with respect to reparations and the liability of business that traded with and in the Apartheid State (as in the Khulumani case[3]). This essay will argue that with respect to the first criticism, the provision of amnesty was vital to the (relative) success of the TRC and that had amnesty not been used South Africa would have been poorer for it. With respect to the second criticism, this essay will argue that in general the way in which reparations has been handled has undermined the TRC’s aims and specifically, with reference to Khulumani, that better measures must be taken to allow the TRC to have a greater effect.

The Truth and Reconciliation Commission was established in terms of the Promotion of National Unity and Reconciliation Act.[4] The purpose of the Commission was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes constituting human rights violations (by both sides). The TRC was a deliberate attempt at restorative rather than retributive justice as it wanted to avoid the stigma of being in favour of the victor to the detriment of the loser.[5] The TRC operated through a committee structure, each of which focused on a specific aspect of investigation.[6]

In AZAPO v President of the Republic of South Africa,[7] AZAPO challenged the constitutionality of granting amnesty to persons who had confessed their involvement in crimes constituting human rights violations. They specifically challenged s20(7) of the Act[8] which provided that:

'no person who has been granted amnesty in respect of an act, omission or offence shall be criminally or civilly liable in respect of such act, omission or offence and no body or organisation or the State shall be liable, and no person shall be vicariously liable, for any such act, omission or offence'

The effect of this provision is that any person who had confessed to being part of such crimes – whether directly or indirectly - would not be able to be held criminally or civilly liable for their action. A further ground for their application was in terms of s22(7) of the Interim Constitution.[9] AZAPO argued that it was right and proper that any person who committed any act of violence (especially those acting within the ambit of their employment for the state) be duly punished by a Court of law both civilly and criminally.

The Constitutional Court, exerczing its role as the defender of the gains of the new South Africa,[10] in dismissing these challenges to the Act holding: (1) that this was the correct position with respect to generating a holistic picture of how far the violence of the state spread during this period and that whilst it may violate one’s normal sense of justice (that a wrongdoer is not held liable for their wrongful conduct), in this case, special considerations had to apply[11] namely (a) the closure that the furnishing of such information would bring to the family and organisation of affected persons; and (b) the overall benefit that society would derive from knowing to what extent Apartheid had inflicted damage on society where it need not have existed;[12] (2) that the Interim Constitution of the Republic made for such provision of amnesty and this was almost universally accepted by political representatives across the spectrum and accordingly thus it was politically, morally and given that it had been promulgated through legitimate means, legally valid.[13]

Pursuant to these reasons, the Court was correct in upholding that the awarding of amnesty was correct[14] given:

Firstly, that in allowing the differing parties an outlet to come clean, it deprived them of the impetus to demand retributive justice. This in an extreme sense could have given rise to greater politically motivated violence which may have had the effect of destabilizing the state. A state at war with itself would have never been able to make the political and economic strides that it would have needed to have made in order to allow the healing to occur. Further, it would have been accepted in the international community. Both of these reasons collectively disturb the degree of normalcy that is needed within any country in order for any form of collective development to occur. This allowed society to benefit with minimal social cost.

Secondly, the provision of amnesty, which acted as an incentive to perpetrators of crime to come forward was essential as the persons who were in possession of such knowledge – if they were not given any form of indemnity – would fear further persecution in the new South Africa if they had not been given this guarantee. One could justifiably argue that in a scenario where such perpetrators had a monopoly on the facts available, that such an opportunity cost was a small price to pay. This is especially the case where even though persons who had come forth and made such disclosures were protected in the formal sense, the risk they undertook was still great as informally they would still be subject to social prejudice and in extreme cases, violence. The offering of amnesty allowed the state to create the impression and perception that such persons, whilst not able to escape due criticism, were to be treated normally and not persecuted and entreated to mob justice which would have potentially given way to the situation described above.

Accordingly, I must disagree with the good Professor with respect to her assessment of the role of the TRC with respect to the achievements it has made concerning the awarding of amnesty.

However, the way in which the issue of reparations has been dealt with has left much to be desired. Whilst the Constitutional Court acknowledged that:

“the epilogue required that a law be adopted by Parliament which would provide for amnesty and it appreciated the 'need for reparation', but left it to Parliament to decide upon the ambit of the amnesty, the permissible form and extent of such reparations and the procedures to be followed in the determination thereof, by taking into account all the relevant circumstances.”[15]

Hence, I am of the opinion that the way in which the issue of reparations has been dealt with has undermined the advancement of South African society towards being reconciled and the role of the TRC in facilitating that process.

The Khulumani case was brought by a group of persons who had endured brutal treatment at the hands of the Apartheid regime and is aimed at ensuring that companies that operated in South Africa during the Apartheid regime and who directly or indirectly through its financial support, prolonged the life of the regime and the misery that it was able to impart to the majority of South African citizens.

There has been some dispute as to the appropriateness of the claim and the forum in which it is presently being heard.[16] However the conclusion that one must draw from this matter – a fact to which both sides in this lawsuit concede – is that for as long as the reparations system in place remains inadequate, whatever political gains have been made since the culmination of the TRC, the lack of goodwill illustrated through economic commitments of reparations, will continue to undermine it. This is primarily based on two reasons:

Firstly, the lack of commitment from either the government (or as in the Khulumani case) companies, to show goodwill to the victims of the regime, allows for a continuous battle to be waged about the detriments of the Apartheid system. The time and energy spent on this detracts from society moving forward. The focus of society at large keeps the wounds of that time frame raw and does not allow the bitterness which people may harbour towards the regime, and other parts of society that may resemble the regime, to be normalised with political engagement being treated as a matter of policy as opposed to racial differences. The effect of this is that the development of South Africa as a non-racial society continues to be undermined. Whilst this argument may seem to be i favour of the idea that the plaintiffs in this matter should drop their lawsuit, this is not true when it is borne in mind (i) the great profits that these companies made from their association with the regime; (ii) the ease with which they can pay such reparations and (iii) the overall social utility that can be achieved from their payment.[17]

Secondly, if this does not come to fruition, the incorrect perception that the TRC did not do its job properly will continue to exist in society. Many authors are of the opinion that the TRC was the incorrect forum through which reparations for specific cases should have been awarded and what its primary role was – and that which it did fulfil – was about discovering the truth so that people could gain some semblance of closure and be allowed for their lives to take on a semblance of normality despite the fact that normality may come from grief.[18] Had the TRC been given the discretionary power to award individual reparations the further negative precedent could have been allowed to develop where the monetary award given could have been conflated with the impact and seriousness of the harm that was suffered by the victims which is neither what the intention of reparations is nor what it should be about representing. Further, the success of Khulumani will ensure that the role of the TRC is not trivialized to the issue of reparation alone: an important feat considering the political developments it gave way to.[19]

For as long as the issue of reparations remains outstanding and for as long as the victims and families of victims of Apartheid are not given some tangible form of justice, the role of the TRC and the vital contribution it made to the healing of South Africa, through the awarding of amnesty.[20] If this situation continues to occur it is inevitable that the TRC process will come to be viewed through the lens that Professor Narnia Bohler-Muller suggests.

[1] Stanley, E. 2001. Evaluating the Truth and Reconciliation Commission. The Journal of Modern African Studies. Vol 39. No 3 (Sep). Cambridge University Press. pp 525 – 546.
[2] 1996 (4) SA 671 (CC).
[3] In re South Africa Aparthied Litigation, 346F.Supp.2d. 538, 542 (S.D.N.Y., 2004))
[4] Act 34 of 1995.
[5] This was an important aspiration of the Commission. Further reasons as to its significance will be given later in the essay.
[6] The Human Rights Violations Committee focused in Human Rights violations between 1960 and 1994; The Rehabilitation and Reparation Committee was tasked with restoring victim’s dignity and formulating proposals to assist with rehabilitation; and The Amnesty Committee which considered applications from individuals for amnesty in accordance with the Act.
[7] Note 2 supra.
[8] Note 3 supra.
[9] Interim Constitution of the Republic of South Africa, 1993.
[10] Gibson, J. L. And Caldeira, G. A. 2003. Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court. The Journal of Politics. Vol 65. No 1 (Feb). Cambridge University Press. pp 1 – 30.
[11] Note 2 supra. Paragraph [30] at 689D-690A/B
[12] Note 2 supra. Paragraphs [36]-[37] at 693C-I
[13] Note 2 supra. Paragraph [10] at 681D-I
[14] Gibson, J.L. 2002. Truth, Justice and Reconciliation: Judging the Fairness of Amnesty in South Africa. American Journal of Political Science. Vol 46. No 3 (July). Midwest Political Science Association. pp 540 – 556.
[15] Note 2 supra. Paragraph [47] at 696F-H/I.
[16] Amici Curiae Brief (Law Professors in Support of Defendants). 2009
[17] Judgment of Shira A. Schneindlin U.S.D.J in the matter of Khulumani et al v Daimler AG et al 2009.
[18] Nagy, R. 2006. Postapartheid Justice: Can Cosmopolitanism and Nation-building be Reconciled? Law & Society Review. Vol 40. No 3 (Sep). Blackwell Publishing. pp 623 – 652.
[19] Nemeroff, T. 2009. Untying the Khulumani Knot: Corporate Aiding and Abetting Liability Under the Alien Tort Claims Act After SOSA. www3.law.columbia.edu/hrlr/hrlr_journal/40.../Nemeroff_Final.pdf
[20] Nagy, R. 2004. After the TRC: Citizenship, Memory and Reconciliation. Canadian Journal of African Studies. Vol 38. No 3. Canadian Association of African Studies. pp 638 – 653.

The Role of Religion in the Middle East

2010-10-07T12:38:00.000+02:00

Religion – whether followed or not – is widely considered to be an integral part of a person’s identity. The values that an adherence to that religion necessarily imbibes in a practitioner of a particular religion, or the values that emerge as a result of an active choice to set oneself apart from religiosity and its associated value-systems, has a profound impact on the way in which a person or group of persons operate in any given environment.[1] Using religion as the main method of analysis, this essay will examine the role that religion plays in its influence on political life in the Middle East. It will do so through the isolation and extrapolation of key historical examples which may allow an observer of the Middle East to draw general conclusions about the relationship in the Middle East between religion and politics.[2] Whilst this phenomenon is by no means particularistic to this region,[3] the influence that religion has had on this region and its political developments however deserves specific attention.

This essay will focus on three examples for the purpose of making such generalizations: (1) the role of religion in Iran (focusing on the events leading up to the Iranian Revolution of 1979 and how this has impacted the formation and sustenance of the state of the Islamic Republic of Iran thereafter); (2) the role of religion in the ongoing Israeli-Palestinian conflict; and (3) the role of religion with respect to the United States and its geopolitical involvement in the region.

These examples allow an observer of the Middle East the added advantage of looking at the region through actor-centric analysis. The first example allows one to examine the Middle East through the cleavages which may separate actors and differentiate them – thus highlighting how religion can be a problem with respect to regional coordination and cooperation. The second example however seems to contradict this by offering one an insight into an issue that allows for a higher degree of Pan-Arabism which then, in terms of the third example, allows for foreign actors to the region a better and more nuanced understanding of the varying incentive-structures that exist within the region and how they may be utilized so as to maximize opportunity for influence.[4] Further, this actor-centric analysis allows one to establish how states within the region relate to their own citizenry and what potential implications this may have to the advancement of democracy within the region. Such a sophisticated understanding of the politics of the Middle East is also necessary if not vital for the observer of the region to avoid unsubstantiated and superficial assumptions of the way in which the region operates.[5]

The role of religion in Iran

Iran has always been a special case in the Middle East. This is owing to the fact that unlike most other countries in the region, it is comprised of a majority of Shiite Muslims whereas Shiites throughout the rest of the world are a minority to the Sunnis. Whilst both believing and belonging to the faith of Islam, Shiites and Sunnis differ insofar as the leadership of the Umma[6] is concerned. This difference has over time led to a great divergence in not only the religious and cultural practices and beliefs that both communities exercise, but has also influenced the ways in which they carry out and give effect to their concepts of politics, justice, economics and the like.[7] The difference between the Sunnis and the Shiites is that the former group believe that the Umma can be led by any person who could prove that his claim to lead the Muslim world was justified by his ethical, moral and intellectual qualities befitting his stature as leader whereas Shiites are of the opinion that the leadership of the Muslim world is limited to the family of the Prophet Mohammed and that any person who would claim to lead the Umma after his death would have to be a direct descendant of his.[8]

Whilst this difference between Sunnis and Shiites may seem pleonastic in the extreme, it is nonetheless important to it bear in mind when considering how such religious differences manifest themselves in other ways. As Zonis argues:

“ the most astounding feature (of Shiite theological thought) is an attitude of mind which refuses to admit the majority opinion is necessarily true of right.”[9]

Prior to the Revolution, Iran was a monarchy ruled by various dynasties.[10] The House of Pahlavi was the last dynasty to ascend to the throne of Iran. The Pahlavis are often referred to as the ‘Hollywood dynasty’ given their preference for a modern lavish lifestyle that seemingly valued Western materialism over Islamic detachment from materialist priorities. Further the Pahlavi rulers were characterized as being corrupt and indulgent of a lifestyle that could not be sustained by the Iranian economy especially considering that the general population was faced with grinding poverty.[11] Whilst the Revolution may have been justified in that it wanted to bring to an end a corrupt and self-serving regime and honour the religion, customs and traditions of the people of Iran, the development of a full scale theocratic state in which little or no democracy was evident[12] – something that the proponents of the Revolution had promised as a method of uniting the entire country[13] – and to which no accountability and checks and balances could be brought irrespective of the power abuses it may have committed leaves much to be desired.

The effects of this religious outlook and the Revolution is two-fold:

Firstly, it has resulted in the situation where Shiites believe that they have the monopoly on the interpretation of Islam and that only their interpretation of Islam is correct. This means that (a) Shiite society has developed a tendency – as demonstrated by their constitutionally enshrined principle of velayet-e-faqih[14] – to be unwilling to accept any form of pluralistic discourse within their country other than those expressly permitted by the jusrists themselves; and (b) that the construction around being Muslim in Shiite countries has been tied to the singular and prescriptive interpretation of theologians who may abuse their position of religious trust for gain in political office which they simultaneously hold.

Velayat-e-faqih was the system of rule that was introduced to Iran after the Revolution in 1979 through which the leader at the time, Ayatollah Khomeini was able to solidify his role as leader within the Revolution and within the framework of the newly founded Iran thereafter.[15] This system of rule is premised on the idea that in the absence of the twelfth Imam, the most learned spiritual leaders of the Umma would guide the Muslim world in his absence. These leaders, would rule the Umma either collectively or at the behest of one of their own (i.e. the Ayatollah) should he display such ability. It is interesting to note that Shiite doctrine expressly acknowledges that whilst the Ayatollah (or in the case of there being no Ayatollah, the learned religious leaders of the Umma sitting collectively as a religious council) is not as infallible or as exalted as the Imam himself would nonetheless have the ability to provide guidance for the Muslim world. However, being superimposed into that position of leadership allows for the qualities of infallibility and devoutness to be applied to him (or them as the case may be) by implication.[16] This process of superimposition is important as it gives this religious leadership of the state the same kind of universal legitimacy and ‘power’ as the Imam himself even though there is no actual evidence even by their own admission for their exalted status other than a particularly construed interpretation of the Quran. The result of this is that any opposition raised against the clerical leaders (either as a religious council; in the form of the Ayatollah; or both) is easily dealt with by claims of being un-Muslim. In other words, these religious leaders who assimilate formal political power place themselves in a position similar to that of the unimpeachable religious figures of Islam and are thus able to rule the state without any form of accountability or criticism. The danger then of this form of government is that these religious leaders may interpret Islam in an unethical or dishonest manner which may be used to the specific detriment of population groups that they may disapprove of such as women and/or dissidents within Iranian society itself (especially those who threaten the institutionalized hold on power that religious leaders in Iran have). This is particularly evident in the way in which moderate elements of the Iranin Revolution led by clerics such as Ayatollah Murtaza Mutahhari were eliminated from the arena of public discourse and deprived of their public legitimacy as being too ‘soft’ on things which were deemed to be un-Muslim.[17]

Interestingly, the fact that a concept like velayat-e-faqih is wrapped in Western hallmarks of legitimacy such as being in a Constitution, does not detract from the fact that the formal measures in place to give the Iranian state legitimacy do not surmount the substantive problems which this religious formation of the state presents. However, this is a powerful tool when considered that the state already enjoys a high degree of religious legitimacy and is used as a legal ground with which advocates of the Iranian state may argue against any challengers thereof. This allows the incumbent establishment leadership of the state of Iran to monopolize and dominate political discourse.[18]

Further, the implication of this is that in order to claim one’s full identity of being Muslim, one must subject themselves unquestioningly to such dictates of those religious leaders who are effectively acting in the name of the rightful leaders of the Muslim world. This is an effective tool for quelling any discontentedness within the state as people are generally not willing to run the risk of undermining their religion – a fundamental component of their identity with effects in the afterlife – for minimal gains that may or may not be made in the here and now.[19] Given that the dictates were directed against Western manifestations of modernisation and liberalization, despite them being incorrect and corrupted manifestations in and of themselves, it meant that any of the good that these ‘western’ political developments could potentially bring to the state – such as greater equality, limits on the abuse of power and so on – were cut off as they had been tainted by association with the previous religiously bankrupt regime. This is easy to do when the cause of such hardship previously suffered by the Iranian people is painted as being something closely associated to and promoted by the West, namely democracy. With people already hesitant to challenge the current order that exists in Iran on a spiritual level it is not difficult to understand why public opinion also hardens against the advance of democracy: no-one supports a political regime that means life gets harder for the people who are subject to it.

The brilliance of this strategic use of religion for political ends therefore means that any marginal gain that the state makes – even if not directly as a result of the action the now religiously constituted state takes (barring the possibility of it being as a result of the changing economic environment in which the state exists) – can be attributed to the new religious configuration which thus reinforces its primacy as the political model of choice.[20] Any religiously constituted state therefore automatically seems as a better alternative to the poor experience of statehood that the people – with whose buy-in it is necessary for any Revolution to be successful – would have lived through thus far.

Secondly, it has resulted in the rest of the (Sunni) Muslim world having to adopt a similar trenchant outlook towards their role in Islam. This is owing to the fact that a failure to do so allows Shiite interpretations and beliefs to (i) gain greater perceived legitimacy through facing no opposition; and (ii) influence the rest of the Muslim world with respect to the systems of government they have chosen. Sunni opposition therefore is a reaction which is aimed at ensuring Sunni thoughts and beliefs their own relevance and legitimacy. Further, the hesitance with which they have been willing to accept any Western-centric political developments has been owing to the fact that (i) such assimilations merely add credence to the Shiite belief and accusation that the Sunnis are religiously inferior – through their succumbing to the influence of supposedly un-Islamic political ideologies; and (ii) such dissociation has been imposed out of fear that an adherence to these ideologies could result in their domestic populations being similarly incentivized to initiate a Revolution – which may be bad for the stability of the individual state and for the region as a whole. Thus such dissociation also takes on the aspect of guaranteeing institutionalized and incumbent power.[21] The defence therefore of religious pretexts to the way in which the state operates then becomes and takes on a nationalistic hue which in and of itself has the effect of bringing moderates into the debate in a pro-state posture that they may not have automatically supported owing to the fact that if they fail to do so, the state then as an institution – which they may need for the furtherance of their own power and political objectives in the future – comes under threat. The effect of this is that there are fewer and fewer voices within the public discourse that are able to represent an alternative view as to the construction and operation of the state to the detriment of citizens.[22]

It is important to see therefore how the role of religion has influenced the life of the Middle East inhabitants as actors within the region increasingly shy away from positive political developments such as democracy because of the impression that has been created of them as being un-Muslim. It is also important to see how these states may manipulate religious doctrine to achieve their own political power and then used such religious interpretations as a method of continuing and sustaining their power.

The role of Religion in the ongoing Arab-Israeli conflict

Unlike anywhere else the three most dominant monotheistic religions of the world, namely Christianity, Judaism and Islam, emanate from the Middle East. Whilst this means that there are to some degree many similarities between these religions and their associated cultural practices, their close proximity has led to a prolonged, and often violent struggle as they attempt to establish themselves as the prevailing religion in the region.[23] This is most evident in the Arab-Israeli conflict and the issues surrounding the creation of both the states of Palestine and Israel centring on the disputes of the borders of Jerusalem and the control that either side can exercise over it.

This is owing to the fact that all three religions’ major holy sites are located within the borders of the city. With specific reference to the Israelis (acting as the proponent for the Jewish faith) and the Palestinians (acting generally in the interest of the religion of Islam) this city is given great importance as it is seen as the bedrock of those religions.

There have been many attempted settlements to this process which have strived to allow both parties to this conflict a relative degree of equal control so that they may both enjoy maximum benefit from the preservation of their religiously important sites. These usually argue that the Arab parts of Jerusalem be give to the Palestinians and the Jewish parts be given to the Israelis. However neither party has shown the other much good will in the negotiation and implementation of these deals as they have been preoccupied and concerned with suspicion of the other side. Thus, even though there is increasing political will for there to be a negotiated settlement between the parties in which many people – even the most unlikely – are postulating the existence of a single unified state, the governments of both these parties, who are subject to the will and influence of religious extremists in both their communities and for whom religious identity is important both in terms of political support and for the government’s legitimacy as an institution, are reluctant to give way to the other side. Despite this will existing amongst a significant number (and in some cases a majority) of people, it is important to understand why this will does not translate into political action on the parts of the governments concerned. As indicated, the pressure that these governments come under from religious extremists – whether they engage in legitimate or illegitimate political methods to achieve their political ends – is especially what needs attention as it shapes how they react to certain push and pull factors and not others. This can be deduced be the following three considerations:

Firstly, religious extremists have a greater incentive to be more local about issues related to and concerning religion: this is owing to the fact that it is the very reason for their existence and an increased focus on these issues increases their (the religious issue’s and the religious extremists’) relevance and legitimacy.[24] The effect of this is that extremists become an increasingly more likely choice for electors and sympathisers[25] to make, which may result in decisions being made that limit the opportunity for rational (and often necessary) decisions to be made.[26]

Secondly, by increasing the discussion and discourse around these issues, extremists effectively manoeuvre public opinion into becoming more decided (either in favour of their postulating or against it) and less moderate.[27] This shift in the public opinion thus resulting in the greater polarization of society allows in turn for two significant things: (i) it allows for the political discourse surrounding the issue to become more simplified with extremists on both ends allowing themselves to squeeze out actors that exist in the middle of the spectrum and in so doing add to their own long-term legitimacy considering that the substance of their message would have had to change nominally if at all as the position that they would have been arguing over the time proportionally rises in terms of its dominance amongst electors and sympathisers; and (ii) by becoming more legitimate in the eyes of electors and sympathisers, the greater the chances of these organisations having the capacity to harness public opinion in their favour and cross the divide between legitimate and illegitimate political ends.[28] This then creates the situation where majority opinion is artificially induced by ‘manipulation’ of the political process to benefit the political organisation themselves to the detriment of the people within their society by limiting the true choice that they can exercise and forcing them to make choices which are illustrated in very polarized ways and where a failure to choose can and often will result in detrimental consequences for those who attempt to remain in the middle of the political spectrum.[29]

Thirdly, these organisations have a strong organisational and lobbying factor which allow them the ability to influence the public discourse in greater proportion to their size and/or their actual public relevance in any given society. This ability emanates from two distinct sources: (i) the members of this group are a largely homogenous grouping which allows for little or no internal dissent to arise. The lack of internal dissent means that little or no time is spent debating various policy positions or resolving any other form of internal conflict. This in turn means that the mobilization ability of this grouping and the perception that they create around themselves is one of unity and strength which adds to the ‘pull-factor’ that they have as everyone is singing of the same hymn sheet. This clear and consistent ideological output has the effect of building confidence amongst ‘undecideds’ in the political system as they stand out as a stark contrast to other – more moderate – political organisations which allow for a degree of internal dissent which inevitably shows the public various rifts which may or may not exist that in the public eye undermines the political swing factor that those organisations may have; (ii) these organisations imbibe within them a degree of superiority given their belief (and the level of their belief thereof) in their particular religiously influenced worldview. As such, the moral superiority with which they mobilize as organisations far outstretches that of any other political actor within the discourse because entwined with their political machinations comes a degree of religious legitimacy which even though the former, on its own can be treated sceptically, it is difficult for the former to be rejected when the coupled with the latter, as the latter idea requires too high a degree of sacrifice for the individual to make in order to participate in the political process: they have the ability to lock down support of those who believe in the religion that they purport themselves to be the voice of and make seemingly convincing arguments to make those people accept their arguments uncritically.[30] This results in their being little true debate which can happen in any of these societies.

Even the perception of being weak as a result of decisions which are bona fide attempts at achieving a semblance of long-term unity and integration are avoided at all costs by the governments of these parties given that these religiously sensitive matters – both of which are as a result of hard fought victories involving prolonged suffering and high casualty rates – are easy deal-makers in societies that are characterised by close elections.[31]

The role of religion with respect to the United States and its geopolitical involvement in the region.

Whilst this is not the direct focus of this essay it is important to explain the ways in which intra-regional religious influences have the ability to affect and alter relations with actors that exist outside of the region and how that in turn feeds back into the political ongoings within the region itself.[32] This is owing to the fact that as most theoreticians of international relations agree, national issues are in many instances intricately linked to international issues and between them exists a degree of influence which cannot be undermined or ignored when considering the implication of either. Accordingly, based on the analysis offered above, it is important to see how the United States of America, as the world’s only hegemon to date post-1945,[33] reacts/reacted to developments within the region and how those in turn initiated their own reactions within the Middle East itself.[34]

The first way in which this needs to be analysed is with respect to the American reaction to issues within the Middle East itself. What is largely evident from this is that the United States of America as a predominantly Christian state is susceptible to the influences of well organised Christian (and other religious movements, especially the Jewish lobby) within its borders who have the ability to use resources and influence (loosely, although not in all cases) based on religious beliefs and interpretations.[35] Baumgartner for example argues that:
“(the) Evangelical Christians have remained strong supporters of a hawkish foreign policy towards the Middle East even as overall support for the war in Iraq declines… Evangelicals are among the strongest supporters of Israel and hold more negative views of Islam than others. (This) reinforces the growing importance of the faith factor in public opinion…”[36]

The importance of this is three-fold. Firstly, it indicates that the degree to which Christian (Evangelicals) are willing to make political decisions based on their religious beliefs is increasing, even in the face of a total decrease in popularity of ‘their’ candidate amongst other constituencies.[37] Secondly, it shows the similarity in political operation that exists in the United States and in the Middle East and how such similarities have policy consequences with far-reaching effects. A President that hopes to return for a second term for example would be hesitant to alienate this key group of supporters who contribute money and votes to their presidential campaigns. Thirdly, it is indicative of potential biases that actors from the US may harbour. These biases – whether perceived or real – have the distinct ability to undermine any peace efforts by the United States for such hesitancy – informed by these religious biases[38] – give the impression that those efforts are far from being genuine.

The third point leads to the second generalization that may be drawn: that a perceived bias or hesitancy towards the Middle East may result in the actors within the Middle East itself rejecting the efforts made by the US government. This in turn has significant consequences which may be deleterious consequences for the citizens in the region. Firstly, they may reject the peace process altogether as it may create the impression that their willingness to bow to the Christian West renders them in a position that is un-Muslim.[39] Secondly, the may turn to other dominant semi-hegemonic actors[40] that may attempt to exert a world view upon them that (i) has the consequence of hardening the potential moderate nature of the state (a necessary opportunity-cost to garner support within the region against actors – both domestic and foreign – that threaten it)[41]; and (ii) has the consequences of them turning to practices which are not necessarily legitimate to ensure their stability and longevity as they become more desperate to secure a hold on power.[42] Thirdly, and as a reaction to the United States, these states that it is hoping to influence may become more reactionary as a demonstrable reproach of Western actors and their influence.[43]

Conclusion

What this essay has shown is that religion – whether followed or not – is a strong political influence within the Middle East. It is evident that this influence, whether it is direct or indirect has the capacity to make actors at a sub-state and state level to make decisions that they would not necessarily make in the absence of such religious influences. Using religion as the main method of analysis, this essay has shown the role that religion plays in its influence on political life in the Middle East. It has shown that religion has: (a) a strong morality factor that is difficult to get people to divorce themselves from when acting or expecting them to act rationally; (b) that religion as an institution has a great lobbying pull and ability to influence and shape the way public discourse is constructed; and (c) that religion has an invading quality that allows it to influence and determine many disparate aspects of life.

[1] Huntington, S. P. 1993. The Clash of Civilizations? Foreign Affairs. Vol 72. No 3 (Summer). pp 22 – 49.
[2] It must be noted that the difficulty in any essay where general conclusions seek to be drawn about any phenomenon, a plethora of examples and case studies is usually necessary. However, in the present case, due to a lack of time and a limit on page-length, this essay will use specific examples to illustrate general patterns that may be identified when replicated in different circumstances. This is owing to the fact that religion lends itself to the replication of such general patterns in differing specific circumstances.
[3] See for example the ongoing political clashes in Northern Ireland. The basis for many of the divisions in that part of the world emanate from a difference in religion: between a Protestant United Kingdom Government and Catholic dissidents in that region.
[4] This is especially relevant to countries such as the United States who wish to create increasing stability within the region as an extension and of its own political objective of averting the proliferation of terrorism.
[5] Which is easy to do considering the superficial similarities – such as the predominance of Islam – existing amongst these actors. Bill, J. A. 1996. The Study of Middle Eastern Politics, 1946 – 1996: A Stocktaking. Middle East Journal. Vol 50. No 4 (Autumn). pp 501 – 512.
[6] The Arabic term for the collective name of the Muslim world.
[7] This situation is not dissimilar to that which exists between denominations in other religions which have established themselves over time usually resulting out of a difference in interpretation of religious texts or similar disagreements with respect to the leadership and rights of the religion. Jewish sects include the Ashkinazi, the Sephradi and the Mizrahi Jews. Similarly, Christianity includes amongst its many denominations Catholics, Protestants, Orthodox Christians. The importance of recognizing these cleavages, despite the over-arching belief in Allah or God as the case may be is that arising from these differences are not only associated values and valued practices but a potential source of conflict.
[8] Kaufman A. 2006. Between Palestine and Lebanon: Seven Shi’i Villages as a Case Study of Boundaries, Identities and Conflict. Middle East Journal. Vol 60. No 4 (Autumn). pp 685 – 706.
[9] Zonis, M. 1985. The Rule of Clerics in the Islamic Republic of Iran. Annals of the American Academy of Political and Social Science. Vol 482, Changing Patterns of Power in the Middle East (November). pp 85 – 108. Whilst this is in fact praised in Western schools of political thought, as well it should be – that majoritarianism (that those in the majority are right by virtue of their numbers and not the veracity of their opinion), it is somewhat disconcerting when this is applied to religious discourse given that this blind acceptance of a particular view point (often called faith) to the exclusion and detriment of other such viewpoints (interestingly more so a hallmark of monotheist religion rather than polytheist religions by their very nature) especially when used as the raison d’être of political discourse, necessarily lend themselves to varying degrees of intolerance and ignorance.
[10] Namely the Safids, the Qajars and the Pahlavis.
[11] This is not limited to the fact that the Iranian government under Reza Shah and Mohammed Reza Shah (who was ultimately deposed by the Iranian revolutionaries) showed preferential treatment to the American government (and its companies) who were allowed special concessions that benefitted its foreign owners more so than the domestic context in which those companies were based.
[12] In effect a theocratic autocracy.
[13] a popular promise given that the heavy-handed and haughty manner with which the Pahlavis had ruled Iran cemented the idea for the Iranians themselves that having a greater ability to influence the state (in its extreme form: revolution as was the eventuality) was how they could ensure that the government would rule in their and not in its own interest.
[14] The term of the ‘rule of the jurist’ which is unique to Iran. This is explained further on in the essay.
[15] The Islamic Republic of Iran from 1979 onwards.
[16] Evidence of this superimposition is the way in which the Ayatollah Khomeini is referred to within the Iranian Constitution itself. Principle 107 of the Iranian Constitution speaks to the “Great Ayatollah Imam Khomeini” despite the fact that such a title and the significance thereof does not belong to him (italics my own emphasis).
[17] Moghadam V M. 1993. Rhetoric and Rights of Identity in Islamist Movements. Journal of World History. Vol 4. No 2 (Fall). pp 243 - 264
[18] As this essay argues later, any person who undertakes such opposition subjects themselves to the harsh treatment not only of the establishment that they are critiquing, but in all likelihood would have to face and be subject to greater opposition to their criticisms (irrespective of how truthful or correct) from the rest of the society itself. This is owing to how the identity of being Muslim construed: that to agree with the religious leaders means one is Muslim and to question or oppose them is to be un-Muslim. By fear of being un-Muslim through association only, it is enough to turn away Members of the community from supporting or even entertaining such opinions.
[19] Nonneman G. 2001. Rentiers and Autocrats, Monarchs and Democrats, State and Society: the Middle East Between Globalization, Human ‘Agency’ and Europe. International Affairs (Royal Institute of International Affairs 1944 – ). Vol 77. No 1 (January). pp 141 – 162.
[20] Incidentally, even if such opposition was raised in the public discourse it is unlikely that such facts would be allowed to surface owing to the fact that the theological rulers of the state would have viewed it as a threat to their own power which would necessitate them taking against it.
[21] This could be alternate justification for the Iran-Iraq war (1980 – 1988). Most official accounts argue that war broke out between these two countries when Saddam Hussein succeeded President Bakr. Bakr had been known to have pro-Iran sentiments as illustrated by his hearty congratulations sent to Iran on it becoming an Islamic Republic. Under Hussein however, the posturing of Iraq towards Iran changed significantly in that Hussein now wished to unite the Arabic people in the state of Iraq, which involved capturing some of the Iran/Iraq border territories where some Arabic people were located. This is indicative of ethnic and religious tensions which exist between these two actors and how in certain circumstances such differences may result in huge policy decisions being made by the state on criteria that has little to do with achieving a rational objective/outcome. These decisions may even be made where the long-term ramifications for them both may be detrimental (as in the case of a war where formal victory comes at a great substantive cost, if there is to be any victory at all). Further, and as alluded to throughout the rest of this essay, the establishment of an Islamic Republic right on the border of Iraq – even if moderately successful – creates the precedent that (a) religious revolutions are not necessarily bad (in terms of their outcomes and their justifications); and (b) religious states established as a result of such processes are sustainable. This creates a direct threat to secular rulers within the region as they can offer no real justification as to why they too should not create a theocratic state. Further, any attempt to justify their secularism is easily painted as being un-Muslim which if anything, acts as a direct incentive to religious extremists – and other opportunist opposition forces – to oppose and work towards the overthrow of the state.
[22] Although this example draws many conclusions about a Shiite specific state, the general trends cannot be limited to Shiite theocratic societies alone. Like how nationalist movements of different trends (domestically, the African National Congress being centre-left and the Nationalist Party being centre-right) share common characteristics insofar as how they place primary importance on their role in the historical epoch they have overcome, the subsequent use of those of overcoming that historical epoch as a means of continuing its political legitimacy and detracting from opponents’ criticism are examples of how they are similar in terms of their modus operandi despite their ideological (and in the case of Shiite and Sunni societies, religious) differences. This is also the case in theocratic-influenced societies in the Middle East.
[23] Huntington, S. P. 1993. The Clash of Civilizations? Foreign Affairs. Vol 72. No 3 (Summer). pp 22 – 49.
[24] One could argue that an increasing prominence in the public discourse arena lends itself to shoring up a degree of normalcy within the society in which those issues are continuously spoken to.
[25] This distinction between electors and sympathisers is essential as the former group are those that will lend their support to these extremists in a legitimate political environment, legitimate meaning systems of political engagement in the absence of violence, whereas the latter group are those persons who are willing to lend their support to these extremists in legitimate and illegitimate systems, however, it particularly refers to the support rendered to these organisations in illegitimate systems where such support may include ‘terrorist’ operations aimed at the achievement of certain political outcomes.
[26] Strinberg A and Warn M. 2005. Realities of Resistance: Hizbillah, the Palestinian Rejectionists, and Al-Qa’ida Compared. Journal of Political Studies. Vol 34. No 3 (Spring). pp 23 – 41.
[27] Moderate opinion in particular is dangerous to such extremists as it allows the people that they are trying to influence the opportunity to make up their own minds about those issues in a way that is unhindered and bound to any particular preconceived idea. This specific lack of being ideologically-bound to a predisposition allows then for more rational thought and decision-making to occur.
[28] Much like the situation that existed in Northern Ireland with parties like the Democratic Unionist Party (DUP), the Ulster Unionist Party (UUP) and Sinn Fein (with their military wing, the Irish Republican Army/IRA) that were committed to the independence of that territory from Westminster and in South Africa with the opposition to Apartheid in the case of the African National Congress (and its armed wing uMkhonto weSizwe/MK), these parties were able to use public opinion to commit acts that would have otherwise been judged – an in fact were by the states that they were trying to overthrow – as being terrorism. However, despite the formalistic labelling of these acts, these acts were never viewed, especially in the case of South Africa, as being terrorist acts but rather acts of freedom fighters which are targeted towards (perceived) legitimate political ends.
[29] de Chatel, F. 2004. Perceptions of Water in the Middle East: the Role of Religion, Politics and Technology in Concealing the Growing Water Scarcity. Available at www.ipcri.org/watconf/papers/chatel.pdf.
[30] Lebovic, J. H. 2004. Unity in Action: Explaining Alignment Behaviour in the Middle East. Journal of Peace Research. Vol 41. No 2 (March). pp 167 – 189.
[31] The recent Jewish election is a good example of this. Netanyahu’s coalition government has the support of the Jewish extremists in the Knesset which he must appease in order to remain in power. Failure to do so will mean that Netanyahu will no longer control a majority of votes in the Knesset and will be susceptible to a ‘coup’ that will in all likelihood result in him losing power – something which he will want avoid. Accordingly, it is highly likely that the genuine goodwill needed for such complex and intricate negotiations will be absent in the face of the opportunity to prolong power and entrench his own legacy. Interestingly, should Netanyahu lose power through his attempting to negotiate with the Palestinians there are two possible situations that could occur:
Firstly, the Kadima Party and its leader Tzipi Livni may have to posture further to the right than Netanyahu may have done so originally. Whilst this may allow Livni to become Prime Minister the consequences of such a political calculation are (1) that she will become dependent on the support of the extremists as it is unlikely that Kadima core-voters would be willing to vote for a government that is as ‘right of centre’ that one including the extremists is. This means that the role of the extremists is strengthened allowing them to possibly make greater demands and force such a coalition further to the right as without them this coalition would not hold and power would be lost to Kadima who were left reeling after they lost the recent election to Netanyahu; (2) this would depreciate the goodwill present in the coalition as from experience and no doubt the way in which the coalition would have come together, Kadima would be only too keenly aware of the hesitancy of the extremists to support any talks with the Palestinians; and (3) the Palestinians extremists would seem to be proved right as the new Israeli government would be even more hawkish than its predecessors.
Secondly, Kadima and Likud (Netanyahu’s party) may make strides towards each other and create a form of Grand Coalition that may exclude the extremist parties. Whilst theoretically this would be the best party bloc to deal with in terms of negotiation of the peace process, it is highly unlikely, as has been experience that this will happen. Kadima and Likud differ quite significantly on the way in which the peace process should be negotiated and given that both are incentivized to ensure their centrality in the peace process for future political capital and legacices, it is unlikely that the common desire to negotiate a peace would be good enough to bring about that end: both will work extremely hard to ensure that it’s version of the peace process is dominant.
Ironically therefore it would seem that it would be best for the peace process for Netanyahu to remain as Prime Minister of this coalition government.
[32] Hart, P.T. 1970. An American Policy Towards the Middle East. Annals of the American Academy of Political and Social Science. Vol 390, A New American Posture Towards Asia (July). pp 98 – 113.
[33] This is the exact timeframe when issues in the Middle East became most relevant and prevalent.
[34] Gause III, F.G. 1999. Systemic Approaches to Middle East International Relations. International Studies Review. Vol 1. No 1 (Spring). pp 11 – 31.
[35] This is similar to the situation that exists within Middle Eastern society as identified above.
[36] Baumgartner, J.C. Francia P.L. and Morris J.S. 2008. A Clash of Civilizations? The Influence of Religion on Public Opinion of U.S. Foreign Policy in the Middle East. Political Research Quarterly. Vol 61. No 2 (June). pp 171 – 179.
[37] Indeed, it is largely acknowledged that Bush was able to carry the Presidency in both elections through the great support that he enjoyed from the Christian establishment in the country. This too is also a possible justification as to why Senator John Mc Cain, the 2008 Republican Presidential nominee – who had little support from the Christian establishment given his somewhat unorthodox views (in their opinion) – would choose Governor Sarah Palin (R, Alaska) as his running mate, over other worthy politicians that could have easily been a running mate that would have contributed more in terms of substance to his running ticket. Palin is considered to be the darling of the Christian conservative establishment.
[38] Which are more difficult to eliminate than intellectual and quantifiable concerns
[39] As has already been pointed out, this is apolitical tool that is used by domestic actors to embolden their own position with respect to power challenges.
[40] Such as Iran.
[41] This is why the United States of America is so keen to get involved in the Middle East. Allowing actors that have control of important resources such as oil – which is of strategic value to the US – and who have the capacity to thwart its geopolitical dominance are incentivized to work with the United States rather than against it for the following reasons: (1) the United States is able to maintain its position as a global hegemon being able to draw on wide-spread and far reaching support; (2) these states are able to act a proxy-states for the United States within the region and can exert influence in regional matters that would be of benefit to it; (3) it allows the United States by implication to limit the ability of other nations that may challenge its hegemony of global politics to do so effectively be removing the number of potential allies that it has access to; and (4) it allows the US access to vitally important and strategic markets – especially the oil market.
[42] This could take the form of state-sponsored terrorism (see for example the activities of Hezbollah in Lebanon) or the brutal treatment of domestic actors that present a form of threat to the establishment (see for example the way in which opposition forces were treated in Iran during the last election when Mir-Hossein Moussavi came close to unseating the incumbent Iranian President, Mahmoud Ahmedinijad from power).
[43] Posusney, M. P. 2004. Enduring Authoritarianism, Middle East Lessons for Comparative Theory. Comparative Politics. Vol 36. No 2 (January). pp 127 – 138.

The Balance Between Protection and Expression

2010-10-07T12:34:00.002+02:00

In his judgment Professor Govender rightly says that “... responsible legislatures are concerned about the scourge of child pornography, and many are taking drastic action to protect children against exploitation and degradation.”[1] The protection of children against harm is a moral imperative that we as a society are obliged to give effect to. Such protection ensures (a) that the inherent value of children as living persons is appreciated; (b) that children are not subject to sub-standard treatment because of their age and associated vulnerability; and (c) that as a society we protect our long-term collective interests by ensuring that children – who will come to lead the society in which we live at a later stage – are well looked after. This imperative is seen as a compulsory obligation and unlike other moral imperatives,[2] has a legally enforceable right that children may use to ensure that they are protected.[3] However, given the overall legal developments that have occurred in South Africa, this right does not exist in isolation,[4] neither is it absolute.[5] This is especially the case where the right to the freedom of expression[6] seems to come into conflict with the best interests of the child.[7]

This essay will demonstrate in the first instance, how the Court managed to balance these two rights and in the second will argue that they way in which the Court did was the best/most appropriate way of doing so and that any other judgment (supposedly one that spoke more to the best interests of the child) would have fallen short of the principle reasonableness which is so inherent to the new constitutional dispensation.

Section 36 of the Constitution provides that any law when it is to be limited must satisfy three general criteria, namely that such limitation is (i) necessary, (ii) reasonable, and (iii) justifiable in an open and democratic society. Before any consideration is given as to what this criterion actually means, a preliminary discussion is needed as to what an open and democratic society is. This concept usually means that the society to which it applies is characterized by transparency and that it respects the rights of individuals and groups and that even though it is a democracy based on majority-rule, sufficient safeguards are maintained that allow minorities to protect themselves and their interests.[8] Accordingly, such societies are also thought of as being necessarily tolerant of differences and how they manifest. This is especially prevalent in political interaction but also has some implications for social mores of society as a whole.[9] This means that those persons who deviate from society’s idea of moral acceptability may rely on these rights to protect their interests. When this is applied to child pornography, this balancing process has to be especially careful as if it is too liberal in protecting the rights of the minority then it will result in detriments to the child and conversely if it is too strict, persons who may not necessarily fall into the category of child pornography may have their interests jeopardized by such a strict application.

This was one of the main contentions in the appellants in the matter Out in Africa: SA Gay and Lesbian Film Festival v The Film and Publication Board 1/2009. The appeal was brought against the Film and Publication Board (the respondents) over the respondents’ decision to prohibit the screening of the film XXY. The respondents contended that they were empowered in terms of sections 22 and 23 of the Film and Publication Act 65 of 1996 to deny the applicant the authority to screen the film on the grounds that it constituted child pornography. Child pornography is defined as any material that:

includes any image, however created, or any description of a person, real or simulated, who is or who is depicted, made to appear, look like, represented or described as being under the age of 18 years-
(a) engaged in sexual conduct;
(b) participating in, or assisting another person to participate in, sexual conduct; or
(c) showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation.[10]

The scene in question which had resulted in this controversy was one in which, Alex (a minor), the hermaphrodite subject of the film was implied to have anally penetrated another minor, Alvaro.[11]

Whilst the Board and the respondents agreed that this was a film that was neither directly about child pornography nor a devious attempt to offer child pornography masquerading as a serious film,[12] there was nonetheless a duty on the Board to consider its contents all the same given the strict definition of child pornography as a result of the Act[13] and other cases dealing with this issue.[14] This was even the case where two majors who portrayed two minors having sexual intercourse, even where that sexual intercourse was implied and not explicit.[15]

The Court in my opinion, made the correct decision in overturning the respondents’ decision. This is owing to the following reasons (structured along the general criterion of s36 – necessity, reasonableness and justifiability):

Firstly, there is no real need to prohibit the screening of the film. Apart from the fact that the respondents themselves conceded to the fact that this film is not prima facie child pornography in the normal sense or a child pornography masquerading under another guise,[16] the film portrays an important issue (namely that of the struggle for ‘normalcy’ of transgendered persons, including but not limited to the prejudices they face as a result of their physical characteristics) that is often not fully and properly understood in South African society. It would be remiss of the Court to not allow this film to be screened especially where the implied sexual intercourse (with its implications for sexuality) itself plays an important part in understanding some of the issues that transgendered persons themselves have to go through. In this instance, Alex uses his/her male genitalia to penetrate Alvaro, another male (possibly indicating that he is a homosexual male, despite having female physical attributes such as breasts), notwithstanding the fact that he/she has been prepared over time to become a female. The fact that he has been prepared over time to become a female needs to be considered as part of the chain of causation in allowing this sexual encounter to occur. In order to fully depict the realistic challenges and choices that such a person makes, it may be best to allow the depiction to occur in full. This is especially the case if the graphic representation of the situation results in the longest-lasting effect for the audience (whether that be positive or negative: the fact that audience would react and respond to what they are seeing is the underlying incentive of including such a depiction).

This is further supported by the fact that the film itself was found to have an aesthetic rather than erotic appeal. Further, this film was not intended to arouse the audience sexually and was crafted in such a way so as to ensure that it was not reasonably possible of doing so. Accordingly, it is most probably the case that in all likelihood would not achieve that effect. This is the only conclusion that the Court can draw when bearing in mind that the Constitutional Court in De Reuck[17] held that an image cannot be determined to be pornography (as in having some sexually arousing rather than aesthetic effect) without bearing in mind the context of the film[18] and the predominance of the aesthetic nature of the film bearing in mind that aestheticism and eroticism are not mutually exclusive.[19] Additionally, given that this is an objective test, the film would be viewed to be of aesthetic rather than erotic value as only a minority of people would reasonably and as per human experience feel any kind of sexual arousal from this.[20] This is even the case when a subjective enquiry of the film makers themselves is taken into consideration, although and for obvious reasons, this is not always binding nor determinative for the Court.[21]

Secondly, it would not be reasonable – and thus not justifiable – to make this limitation. The scene in question was considered to be within the bounds of the law. Further to this, any stricter definition resulting in any image irrespective of the context or other considerations that the Court made would have result in the situation where society’s ability to openly and freely engage with these issues, and issues associated to them, would be curtailed. The result of such a limitation would be negative to society on two counts: (1) owing to this interpretation, people would potentially become fearful of engaging with such issues even they are within the bounds of the law as they may feel that their work too would be judged as being unacceptable: the personal risk they run (both in terms of the punishments attached to such transgressions and the stigma that subsequent legal action – irrespective of their innocence or guilt – would allot to them) results in them undergoing a process of self-censorship which in a democracy is harmful as it limits the quality, scope and ability of discourse to influence what is acceptable and what is not;[22] and (2) this creates a negative precedent within society that only what the majority accepts is acceptable, the effect being (a) that diversity in our society is downplayed and possibly extinguished especially when (1) above is borne in mind ; and (b) that minorities who have legitimate causes (unlike that of child pornography) who are – by virtue of their collective size in proportion to the majority – in a similar situation, are greater incentivized to drive their practices further underground which, especially when they are related to children, is bad as it could further fuel misunderstanding and prejudice negating one of the constitutional principles of tolerance.

This is further supported by the fact that freedom of expression, as provided by s16 of the Constitution[23] states that:

(1) Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

This shows in and of itself that the film makers had not contravened any constitutional principle surrounding the freedom of expression explicitly or implicitly. It would have been mischievous of the Court in the extreme to interpret the law in such a way to cover the issues that were presented before them, even when considering s28(2).[24] The Film and Publication Board, despite having noble and honourable intentions, erred too much on the side of caution and misinterpreted the film with respect to the definition of child pornography.[25]

Had the Court chosen to construe the best interests of the child to any greater degree, the Court would have been overstepping the mark of constitutionality and be undermining the very principles that it was supposed to defend. Accordingly we can conclude that the Court struck the right balance between the legitimate claims of the best interest of the child and the freedom of expression. This allows society to give effect to both things which are important to it without unnecessarily and unreasonably tipping the scales in favour of one or the other side.

[1] Out in Africa: SA Gay and Lesbian Film Festival v The Film and Publication Board 1/2009. Paragraph 13.
[2] Jooste v Botha 2000 (2) BCLR 187 (T) which held that the right to be loved is not a legally enforceable whereas the duty to support is.
[3] s28(2) of the Constitution of the Republic of South Africa 1996.
[4] Ex Parte Chairperson Of The Constitutional Assembly: In Re Certification Of The Constitution Of The Republic Of South Africa, 1996 1996 (4) SA 744 (CC)
[5] s36 of the Constitiution of the Republic of South Africa which provides that any right within the Bill of Rights, as with s28(2), may be limited provided that it can fulfil the requirements of (i) necessity, (ii) reasonableness and (iii) justifiability in an open and democratic society based on human dignity, equality and freedom.
[6] S16 of the Constitution of the Republic of South Africa 1996.
[7] Note 3 supra. Also see s7 of the Children’s Act 38 of 2005.
[8] See for example society’s attitude towards the death penalty or homosexual marriage. With respect to the former, the Constitutional Court held in S v Makwanyane and Another 1995 (3) SA 391 (CC) that even though a majority of South Africans may advocate the death penalty as an appropriate punishment for criminals, that just because they are a majority does not mean that they are right. In a constitutional democracy such as ours, where the Constitution is supreme, criminals, like other people are guaranteed the right to life and that they may not deprived of it especially where the criterion of s36 of the Constitution is not fulfilled. Similarly, in Minister of Home Affairs v Fourie (Doctors for Life International , Amici Curiae), Lesbian and Gay Equality Project and Others v Minister of Home Affairs 2006 (1) SA 524 (CC), the Constitutional Court again found that even though a majority of people in South Africa may disapprove of homosexuality, that homosexuals who were also protected and afforded equality rights by s9 of the Constitution could not be prevented from getting married on the grounds of their sexual orientation which in isolation does not meet the demands of s36.
[9] This is evidenced by the fact that the freedom of expression is largely considered to be a political right that allows for a free exchange in society, something that is essential to our system of competitive politics, but has a social implication when considered and applied to the idea of pornography. Again, such a minority who are in favour of pornography may use this right to defend their right to watch/possess/create pornography despite a majority of people disapproving of it. Again, merely because the majority disapprove of something does not mean that it is wrong.
[10]s1 of the Film and Publication Act 65 of 1996
[11] Note 1 supra. Professor Govender summarises the film more thoroughly in Paragraphs 5 and 6 of his Judgment.
[12] Note 1 supra. Paragraph 7.
[13] Act 65 of 1996.
[14] De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Other 2004 (1) SA 406 (CC).
[15] Note 1. Paragraph 3.
[16] Note 12 supra.
[17] Note 14 supra. Further, the judgment of Professor Govender (at Paragraphs 17, 24 – 28) in the Out in Africa case dealt in some detail with the alleged change in definition as a result of a later amendment to the Act after the judgment of the Constitutional Court had been given. The respondents argued that the effect of this amendment was to negate the prescriptive definition of the Constitutional Court (under which the appellants would have succeeded in the Court of first instance). However, the Court held that the Constitutional Court’s definition of child pornography was not detracted from by the amendment and that if anything they support each other to the extent that they provide (i) a more explicit definition of the term; and (ii) extend the issues to be taken into consideration when a classification is being considered.
[18] Note 14. Paragraph 19 at G 419 C/D. This was also referred to in Note 1 supra at Paragraph 25.
[19] Note 1. Paragraph 21.
[20] Note 14. Paragraph 20 at 419 F/G – H.
[21] Note 14. Paragraph 22 at 420 B/C – D.
[22] Voltaire put it best: “I may not agree with what you say but I shall fight to the death for your right to say it.”
[23] Constitution of teh Republic of South Africa 1996.
[24] Sections 7(2) and 8(2) of the Constitution of the Republic of South Africa 1996.
[25] Note 1. Paragraph 33.

ANC Political School: Flagship for a Failing Education System

2010-06-07T09:02:00.002+03:00

The ANC applauds its continuing attempts to establish the ANC Political School. A cursory glance at the party's web site's past entries on the subject reveals that it has been on the ruling party's agenda for some time. Whilst the ANC sees this as the realisation of a goal first hoped for in 1985 (at the Kabwe National Consultative Conference), given the current political climate of the former liberation movement, one cannot help but be alarmed at these developments.

Here are 3 reasons why you should be:

Firstly, the context in which the political school was proposed has since drastically changed. The political school was mooted at a time when there was desperate need for the ANC to inculcate values of democracy and political awareness within its membership - and others who had been associated to it - as an ongoing battle against Apartheid. The effect of this was simple: empower your members to continue the ground war not only at a practical level, but in such a way that the party would become the very basis for those member's existence and allow them an intellectual arsenal with which they could take on the enemy. This ensured that the struggle would be sustainable and not easily eradicated in the situation where the leadership had been removed. Although this did not happen in a formal 'political school' sense, it happened nonetheless through Branch activities and the like. Whilst noble in its aims, it also has a converse effect in that it built blind loyalty and indoctrinate rather than inculcate values into members: no-one is going to question and oppose the use of violence for example, or the ways in which MK Cadres are treated at training camps in this noble and worthy struggle.

However, this scenario has since changed. Now in the absence of an illegitimate enemy, the only real enemy that exists is the Opposition with whom the ANC battles on a daily basis to entrench itself as the only viable political vehicle in the country. This political school, which is supposed to be a forum in which members are equipped with skills of organisation and leadership, may be nothing more than the party feeding into its own ill-conceived ideas of being the only party capable and able to represent all the people of this country. The ANC already suffers from an inability to recognise the role played by others in the struggle (see for example how it treats the PAC, the IFP, the PFP and others) and attempts to undermine others when not in government (like they did and continue to do in the Western Cape). The ANC also suffers from great bouts triumphantilism. This school is therefore problematic when you consider that it could give rise to the ANC literally schooling its Members to believe in exactly that (non)fact! Political parties like people are mostly unable to take an objective look at themselves (and note, the leadership of the party develop the curriculum!).

Interestingly, and as one may have judged by the line-space given to the psychological effect of this type of system, whether the ANC intended to do so or not, it has also created a platform through which generations of people will follow it irrespective of the real issues that exist with the movement. Generational-politics is a commonplace occurrence even in the healthiest of democracies: one cannot think that in a situation like ours, where voters still mostly vote according to racial and socio-economic contexts, that this political school will do no more than breed that blind loyalty.

Secondly, the school could be used by the incumbent leadership of the ANC to entrench itself against internal opposition. This would be done through using the qualification of the school as a justification for making it higher up on party lists. In turn this would mean that the school becomes an essential CV marker for the career politician - of which the ruling party has many - and such persons would be willing to do anything to get into an electable position, even being an unscrupulous sycophant to the leadership who incidentally selects what the class register looks like (at least that's what it seems like from the web article I read which inspired this one). The Mbeki Presidency of the ANC and the way in which party lists were determined were a prime example of what the leadership can an will do to secure itself: isolate agitators irrespective of their skill, ability or correctness. Or the absence of such an 'education' may also count against Members who raise legitimate concerns as being 'uneducated' or 'ill-informed' despite the fact that the person using those terms may have scored a G in woodwork. This in turn is problematic as it prioritizes the wrong kind of education amongst its Members. Rather than asking for future Cabinet Ministers to pursue higher education, we may end up with the situation where an ANC 'education' on service delivery and the like becomes a prized possession. Of course I am not saying that this will be the case with all/most Cabinet Ministers but certainly this could become the case with more rank-and-file legislators who are under less scrutiny. And that is problematic when they who are in the majority have to hold the Cabinet accountable and fail to do so either because they do not have the education to do so other than the Cabinet/Leadership sanctioned qualification or where their education does not match that of Cabinet Ministers.

Thirdly, and you can be free to call me a conspiracy theorist, but the ANC creating a school of any kind just leaves me suspicious. Education is best when devoid of party politics.

An Early Analysis of the ANC and Job Creation

2010-05-28T16:34:00.000+03:00

When the African National Congress (ANC) assumed the office of government in 1994 it faced the unique challenge of turning a political miracle (of transition) into an economic one [Gumede. 2007]. The legacy of Apartheid cannot be underplayed – the policy of separate development pursued by the Nationalist Party (NP) has had long lasting effects on the South African political and economic landscape. Whilst the former may have been dealt with by measures such as the Truth and Reconciliation Commission and the awarding of universal suffrage; the economic disparities that Apartheid instilled still have to be overcome. This essay will argue that whilst the ANC is not entirely to blame, blame can nonetheless be apportioned to it for the failure of being unable to make the political miracle of democracy an economic, lived experience for the majority of South Africans, despite being in office for 14 years. This essay will attempt to show that the policies of the current government have not succeeded in making the unemployment problem any better.

Over the last fifty years, most countries have experienced market-related economic growth [Sen. 2001]. This is seen as a result of many countries applying more liberal, market-friendly policies. Governments who have opted to play less prominent a role in the economic affairs of their respective countries, other than setting taxes etc, have certainly benefited [Joyce. 2006]. As the mandarins of capitalism would argue it is the business, of business as to how to make business work and not the government. Simplistically put, governments govern and businesses make money. Examples of countries that have benefited from this business-led economic boom are the United Kingdom (UK), United States of America (USA) and many European Union (EU) Member States. However, as a result of this less interventionalist approach, employment has been to a large extent been sacrificed for the purposes of rapid economic growth [Thomas. 2005]. Economists who support this position argue that by allowing business to employ smarter (in the shape of better skilled employees or in the form of effective machinery) they have the ability to reduce their production costs and in so doing generate more money from both domestic and international markets. This is evident in the sense that if the production costs of goods are less, as a result of smaller, better skilled and better equipped workforces, the selling price of goods will be reduced as well. Therefore, to the domestic market, these items become more affordable and to foreign importers of goods, these goods become a better option by which they may increase their own profit margins. As such, the product will generate more money from domestic consumers as well as be a source of foreign income [Heywood. 2007]. Both of these are to the benefit of developing-state governments as it gives local populations more buying power, brings in more foreign direct investment and provides an opportunity for the government to take in more taxes. In many instances, the lure of these positive effects have been irresistible to developing countries like South Africa and employment was sacrificed for short term gain.

In the South African context this has occurred to an extent. Traditional mass-employer sectors such as mining, railways and roadworks, have reduced their employment intake. The processes of modernization and industrialization have resulted in the labour forces facing significant reductions in the fields which they could have usually considered safe [Habib A, Daniel J and Southall R. 2003]. Historically these sectors were used by the NP when in government to ensure that their own supporters were able to earn an income. This was done to ensure that they could keep a stronghold on power and by so doing ensuring that they never faced a threat to their position and policy of white-minority rule. However by the time the ANC had come to power there was not much expansion that could have taken place save for the example of mining. This is discussed later. Railways were expanded across most of South Africa’s landscape and the workforce needed for repairs and possible expansion would be significantly less given the development in technology that had occurred. This applied to many other sectors such as roadworks and other labour intensive areas of economic activity.

Mining is the exception to this rule, this is owing to the fact that mining happens to be South Africa’s comparative advantage and presents a rare opportunity for the South African government [Gumede. 2007]. South Africa is the world-leader in the production of gold and platinum. We are also known to be in possession of the world’s best stocked reserves. This is where the opportunity lies. Mining which to a large extent is a labour intensive field of economic activity can be used as a two-pronged method of attack on the unemployment problem. Firstly, if the government allowed more mining to occur and threw its weight behind the expansion of existing mines so that their operations (and hence the demand for labour) were to increase, it could be an immediate source of employment. This would not affect the cost of gold too greatly so as to make the increased volume of available product uncompetitive. In actual fact it would result in the opposite. Given that South Africa is already established as a world leader in so far as the production of gold is concerned it means that the technology that we possess and the skills that we have accrued, that have enabled us to remain at the top of f the gold production board, are easy to diversify. This means that expansion will not cost industry too greatly and affect the price of gold adversely. This means that due to the price remaining competitive, if not being cheaper, secondly, with the increased production of gold, the country stands to get more foreign direct investment and domestic income. This is how a comparative advantage operates.

The effect of this is two-fold.

Firstly it means that South Africa, with the money that it will be able to generate, has the opportunity to invest this money into new industries that we may be among the world leaders in, but not the outright leaders. Diversification is seeing as a way of counteracting dependence on the product for which we may have a comparative advantage [Sen. 2001]. Such areas that we may seek to develop are areas such as wine production, platinum mining, sugar cane production etc. The effects of this means that the employment opportunities for a country are increased and that as we abandon industries that are not as profitable as these ones may be, we lose no workers and simply transfer (and develop) their skills so as to be compatible with other, more advantageous sectors. This is also essential as we use up our stock of natural resources.

Secondly it means that the money that we generate can be used to better social spending and education programmes. Especially in a country like South Africa where the unemployment rate is as high as it is and the inability of getting people into work is prevalent, people falling through the cracks is almost a daily activity. An increased social spending budget will ensure that these people are supported where they may needed and if attached to the right conditions, such as working on the state’s behalf for the grant given, it may result in getting people back to work if not equipping them with skills that they may need to go into the private sector [Gumede. 2007]. Education will be discussed later.

In reality though, this has not occurred.

The South African government’s flawed implementation of Affirmative Action and Black Economic Employment has resulted in a large scale brain drain as well as the filling of economically vital jobs with wrongly qualified people [Gumede. 2007]. Whilst the intentions of these policies are good in so far as the redressing of passed discriminations is concerned the politicking that has resulted out of them has been disastrous for the economy. These policies were envisaged as being ways of promoting the previously discriminated into positions that were formally barred to them. This process is often implemented in countries where such discrimination like that which happened in South Africa takes place [Joyce. 2006]. This is a good thing given that adequately qualified individuals who were discriminated against need all the help that they can get. However in the South African context it has resulted in people being appointed into positions merely to fulfil quotas and not because they are properly qualified. This means that the intention, the economic upliftment of the previously discriminated against, is undercut given that the people in said positions are unable to use it to their full potential and create real generational and personal wealth. It has also resulted however in a brain drain where properly qualified people leave South Africa for other countries where they believe they will find employment more easily. This means that as a country we lose vital skills which in turn means that we also lose out on the propensity to generate more income [Gumede. 2007].
This problem is also compounded by three further problems.

Firstly, Apartheid wrecked the country’s education system. This is evident in the sense that even the education that the state doled out was racialized and devised in such a way that people were set standards to which they could excel. This in reality meant that white people were given the opportunity to get a first class education whereas people of other races were pushed to the periphery and expected to only receive an education that would allow them to play a supporting role. Economists worldwide all agree that education of a country’s people is probably the single most important thing when it comes to ensuring that economic growth occurs [Sen. 2001]. This is owing to the fact that whilst every person may not be able to obtain their PhD in nuclear physics and whilst every educated person may not be able to earn a six-figure salary, the value of an educated population bodes well for the present and the future. This is owing to the fact that as studies have shown, an educated forbearer is almost always succeeded by a progeny that is better educated and better off financially [Sen. 2001]. This means that as the process of comparative advantage runs its course and as the economic prospects of South Africa diversifies with time, the future workers of South Africa will be better equipped in so far as being given an education that enables them to deal with and master the more technologically advanced and academically demanding economic pursuits of the country. This however is being jeopardized by the fact that the ANC government, despite mass investment into the education sector [Democratic Alliance. 2003] is failing on three fronts.

These three aspects in which they fail are in terms of the curriculum, the facilities that schools currently operate under and the ineffectual leadership provided by the department. Firstly, the ANC government has failed to deliver a relevant, mother-tongue based and South African education curriculum to learners. This is mostly as a result of education systems such as Outcomes Based Education (OBE) and other such systems of other countries being adopted as our own. This fails in that the learning methods such as group work and intensive teacher-student interaction are not realistic. The de jure and de facto aspects of the country’s education policy do nit match. Secondly the government has failed to provide basic facilities to schools. This manifests in both a lack of schools and where schools exist the lack of facilities such as sports fields that make the schooling experience a more holistic one and even in some instances at a more primary level, a lack of ablution facilities etc. This means that even if the curriculum issues were sorted out the actual delivery of education would be jeopardized given that students were in an environment that was not conducive for them to learn. Irrespective of what the government has attempted to argue, learning under a tree still has its drawbacks. Lastly, the ANC government has failed in its leadership of the department. This is largely owing to the fact that the profession is on the decline and that the department is not in a position where the profession is being considered as a serious career option of new graduates. This is indeed a problem for if the teaching profession were to dwindle anymore it would mean that the South African education system could come to a devastating halt.

The relation that this has to the South African employment problem is that of the majority of children are exposed to a substandard education system; the quality of child produced will in themselves be substandard. This does not bode us well for the future or for the present as it means that the competitiveness of South Africa as a whole is greatly reduced and those industries in which we consider ourselves leaders or industries from which we gain most of our income could come close to extinction [Democratic Alliance. 2003].

Secondly, one must look at the historical influence of the Left (i.e. COSATU and the South African Communist Party) on the ANC and its argument for a policy approach that supports full employment.

Full employment is described as the policy where all people looking for work are in actual fact employed. The Left fully supports this idea as they see it as a successful and desirable neo-communist position. However full employment does not work [Democratic Alliance. 2003]. The government does have ample resources at its disposal. This Left argues should be the only requirement that one needs before making the state an aggressive employer of the unemployed. Realistically though this theory falls apart. Firstly, even if the government were able to employ all people who were seeking work, the government would not be able to afford to keep a workforce at pay levels that people would be satisfied with [Joyce. 2006]. This can be attributed to the supply-and-demand theory of the market system. When there is a scarcity of a particular skill, the market has a demand for it and those who satisfy that demand are rewarded suitably. However when there is an over supply of the product and the demand is too low when compared with the supply, those who are able top provide the necessary skill have top work at lower rates [so that the may gain some method of employment. This is known as the grace to the bottom theory [Sen. 2001]. Secondly, the government does not actually have as many posts as it should have to satisfy such high work demands levels. Thirdly if the government were able to afford employing everyone at a relatively decent rate and had work for them to do the market forces would ensure that over time such an overarching and over-staffed bureaucracy would be cut down to size. This again has to do with market forces. The market would not permit for consumers to keep such agencies of the government going. The government would have to compete with private enterprise and because it does not have as many costs as the government would have in given situations, private industry would always come out on top as the consumer’s choice. This is largely due to the fact that the private industry product is cheaper and is produced in a more effective and efficient way; the only way that would be conceivable for the government to compete with such service delivery is to reduce production cost which primarily means a reduction in employment overheads. This is directly in contradiction to the theory of full employment [Sen. 2001]. And lastly although this may be considered to a lesser extent not everyone who is unemployed actually seeks work.

This relates to how the ANC has failed in its employment policy in that historically the ANC, and its two smaller partners, the SACP and COSATU who have been responsible for garnering support for the party amongst the working classes, have had an unofficial understanding that the movement would retain a largely Social Democrat image [Gumede. 2007]. However, post-democracy the ANC has had to face the threat from within its own ranks of splinter groups and breakaways over the seemingly right-ward drift that the ANC has been having with capitalism. As such the ANC in many of its policies attempt to find a version of the third way, in that it attempts to cherry-pick different aspects of different theories on how the market should operate, that satisfies all its constituents [Gumede. 2007]. The result usually is a policy nightmare. Affirmative Action is a perfect example. The Left strongly supported this form of government interventionism in the economic affairs of the state whilst the right decried it as a disaster. The ANC attempted to satisfy both camps by saying that an intervention would only be justified when the person concerned meets the requirements that the market places on said position. However what has occurred is that in order to seem sympathetic and action-driven towards its electorate, the ANC have overlooked the policy mishaps of Affirmative Action ass an economic policy just so that it can beef up its ‘transformation’ targets [Democratic Alliance. 2003]. The employment problem is endemic of the ANC and its inability to commit itself to a single approach on how to tackle the economic crisis we now face.

Thirdly, the issue of Workers’ Rights must be examined as well. Given the relationship that the ANC has with the Left it is not surprising that the ANC is especially relentless in its efforts to protect workers, which also happens to be part of their support base. What is interesting to note is that some economists argue that the rigidity of the legislation that governs employment is too inflexible and that it scares employers from employing needed staff for fear of the bureaucracy and its incessant desire to tie employers down with legal requirements for hiring and firing [Gumede. 2007]. What is interesting to note is that this well intentioned piece of legislation that is aimed at protecting workers from being taken advantage of should be seen as a hindrance to solving the unemployment problem of this country. Ironically the very legislation that seeks to protect labour forces is exactly the thing that threatens it [Sen. 2001].

In conclusion, whilst the ANC cannot be blamed wholly for the problems that the country faces, given the legacy of Apartheid and the like, it is evidently clear that blame can nonetheless be apportioned to it. The Government’s policies on employment have failed the people of South Africa in that they do not address root causes of these issues as identified by this essay but rather attempt to play a political game of how best to garner political support itself with people’s lives. The government must stand up to the conflicted interests that it undoubtedly faces and take the hard decisions that are necessary for the people of South Africa in the present and in the future to prosper.

American Democray as a Model: Perhaps Not

2010-05-28T16:32:00.000+03:00

A model is a theoretical representation of emperical data that aims to advance understanding by highlighting significant relationships and interactions [Heywood. 2007]. With this in mind, the focus of this essay will be highlighting the relationships of political agents within the United States of America (USA) and how such interactions allow the USA to measure up as a model democracy. Further, the term 'model' implies that whatever is being represented is ideally perfect [Oxford. 1978]. These two definitions influence this essay in so far as when it examines these relationships, it will also consider the question of whether or not such relationships are perfect. It will come to the conclusion that due to the difficulty of the very idea of a model automatically being perfect – ie free from any fault or error – the USA is a model of democracy, albeit not a perfect one.

The USA is a liberal democracy [Joyce. 2006]. Liberal Democracies are forms of rule that balance the principle of limited government against the ideal of popular contest. Its defining features include (amongst other things) constitutional government, gaurentees of civil liberties and individual rights and a fragmentation of institutions and a system of checks and balances [Heywood. 2007]. Such socities have two fundamental features, one being how 'liberal' it is (ie what are the core values which underpin it?) and the other being how 'democratic' it is (ie what are the political arrangements that exist within it?) [Joyce. 2006]. These two features will be examined by this essay and be the basis on which it proves that the USA is a (qualified) model democracy.

The USA is a constitutional form of government in the sense that the actions of political actors are governed by the Constitution, which within its ambit discusses the separation of powers, etc (this is discussed later under the democratic aspect of this essay). The US Constitution as adopted in 1787 however, goes further in that it gives citizens certain rights. These two rights – which are indicative of how 'liberal' a society is – are broadly grouped into economic rights and social rights.

The USA places a heavy emphasis on the economic rights of individual citizens in so far as the ownership of private property is concerned. This is regarded as an essential quality of liberal democracies as it gives people a sense of independence from the government [Heywood. 2007], which is indicative of this system in that it attempts to have a minimal role in citizens lives by creating a framework in which they can best operate [Joyce. 2006]. This means that the USA is theoretically a very good model of liberal democratic systems in that it has no desire to nationalize private property (ie bring it under state control). This means that the principle of individual freedom is (always) regarded as sacrosanct which is essential to a liberal society; liberal deriving from the word liberty which means free.

Further, the USA grants its citizens social rights which in themselves contribute to this idea of individual freedom; an underpinning tenet of a liberal society. Such rights are the right to freedom of expression and the right to legal recourse. Freedom of expression is an essential quality of a liberal society as it allows any citizen of that society (read as individual or organization including the media) to, within reason, express his or her view on everything from consumer culture to poltical activity. This contributes to individual freedom in that it allows people to remain critical of the government when such a government (or any elected official for that matter) is doing something that is perceived to be wrong, without fear of persecution. This ensures that public figures are constanly being scrutinized, which if done properly should mean that they conduct themselves with the utmost integrity and professionalism. Such a freedom means that when that official is being criticized they cannot use the powers of the office that they may occupy to initimidate anyone that does so [Wilson]. The other example, of the right to legal recourse, further entrencehes the idea of individual freedom owing to the fact that when any action is carried out against a citizen and such action is wrong, they have the ability to, through the power of the courts, seek some sought of remedy. This is an essential quality as it gives citizens the grounds on which to argue that their individual freedom (which could be their independence from the government or another individual) is being eroded and owing to the courts' ability to rule on such matters (and have it upheld by law enforcement) if the court agrees, such freedoms can be protected. This shows us that the USA is a model democracy.

However, the Constitution may make such provisions but its inability to correlate such de jure rights to de facto negative socio-economic realities means that the 'model' or perfect nature of the USA as a democracy is undercut [Klein. 2006]. These negative realities which are often structural in nature often means that people are unable to access these rights. This can be seen by ordinary people's difficulties in accessing capital, legal counsel and a public platform.

The access to capital is of vital importance as it allows for the individual to have a real way in which to exercise his/her individual freedoms from the government. This means that if people have money and do not depend on social grants from the government, they can have more control over what they spend such money on and what it can enable them to do; this as opposed to being forced to do what the government deems appropriate and can legitimately do so if giving citizens a grant [Gumede. 2006]. In the USA however, the only way of acquiring capital (especially if you're poor and uneducated) is through government loans which are meagre in amount and thus limiting on the choices (read access) that people have. Alternately, people can get loans which in themselves inhibit individual freedoms because of how easily they can be accessed and how difficult it is to pay them back. Coming out of this, in so far as the difficulty to access capital is concerned, the inability to access legal counsel is of stark proportions. This is owing to the fact that even though legal representation is provided by the state, such legal reprsentation is often over-worked and under paid meaning that people wgo are being prosecuted do not always have the financial resources to access the best defence that they could. This is a serious threat to individual freedom as it can lead to the arrest of a person owing to the incompetence of his own defence as opposed to the strength of the case on th part of the state [Wilson]. The last (of many) threat(s) to individual freedom is the access that a citizen has to a public platform. This threatens individual freedom in that even though someone may be able to exercise their freedom of expression, such expression may not be effective (even though it mat be correct) if it is not done in the correct forums. This means that issues of significance mat not be receiving the attention that they deserve and as such, the critical value so inherent to the proper functioning of a liberal society is useless. This shows us that even though the USA may be a model democracy it by no means is perfect.

The second feature of the USA that must be examined in order to determine whether or not it is a model democrcy is its 'democratic' nature. This typically manifests itself as the accountability of state institutions to the electorate. This is the central ideal of a democracy which derives from the greek words 'demos cratos' which literally translates to being 'people power' [Ndlovu. 2008]. This ideal in a liberal democracy usually finds itself entrenched in the political culture of such a society by means of a Constitution which sets a framework within which a country's system of government is conducted [Joyce. 2006]. The Founders of the US Constitution certainly had this in mind when drafting this ultimate piece of legislation in the US [Wislon. 2006] which goes onto explain in great detail the functions of government at all levels. Like any Liberal Democracy such functions are characterized in two ways, namely the separation of powers between the Executive, the Judiciary and the Legislature; and the separtion of government powers and functions at a federal/national, state/provincial and local level [Joyce.2006].

However what sets the USA apart from other Liberal democracies is not the method of accountability mentioned above, namely between elected officials and the electorate, but rather the accountability that state institutions have too each other. The Executive, the Legislature and the Judiciary whilst having far reaching powers on their own cannot, 'dominate' the political goings on of the US owing to the fact that at some stage in its operations, one branch of government is influenced/engaging with the other(s). This was a direct aim of the Founders, who wanted power to be dispersed so that no single individual could rule the country alone in the way that monarchs did [Wilson]. An example of this co-operation can be shown by the selection of Supreme Court Justices: The President (as the primary actor of the Executive) can nominate Justices for vacancies on the Bench who in turn must be confirmed by the Senate (acting for the Legislature). Such accountability means that the each branch of government cannot have too much control over the others and by so doing 'arrest the power' of the State and exercise its own arbitrary wishes. Such wishes must always be that of the elctorate tempered by the tree branches working in unision. Such accountability shows that the US can be a model democratic state

Two other characteristics also support this idea, namely free and fair elections and the activity of the civil society.

The USA has had free and fair elections on the whole for an uninterrupted stretch of 300 years [Wilson]. The electoral college system as envisaged by the Founders means that all States are represented and that as far as possible they are reprsented proportioanlly so as to ensure that when they elect the President of the United States, no state has too much nor too little power. Further, the fact that the functions of government are carried out by numerous elective bodies (such as State and City Governments) – ie Federalism – which may be controlled by the opposition means that on the whole power is dispersed in such a way that the Founders would have approved of. This is for both practical and priciple related issues. In the case of the former because the USA is such a large country it makes senst to have autonomous units of government that can respond to peoples needs much more quickly than can a distant centralized government. In the case of the latter it ensures once again that too much power is not concentrated in the hands of the President (ie the Executive) who usually are the leadership of the ruling Party [Wilson]. This shows us that the USA can be a model democracy

The activity of the Civil Society is also important in that it keeps the debate around political issues alive [Joyce]. One such body with that crucial role is the media. Others include the various Non-Governmental Organizations, Citizen Groups, etc. The role of the media in the US is very important because it mobilizes extra-parliamentary activity on issues that matter. The media informs people as to what their elected officials are doing or in some instance are not doing on their behalf. Such 'activation' of people's consciousness as to the political affairs around them is seen as important because it can educate voters who can in turn keep the elected officials in check through the power of the vote. It fulfills a scrutinizing role very much like an opposition would (although differing in that it has its readers best interest at heart as oppposed to its own) and manages to keep the electorate up to date with political developments as they arise – which is important so that accountability is achieved [Wilson]. This shows us that the USA can be a model democracy.

However such democratic practices are undercut by the following 4 reasons.

Many people in the USA are disenfranchized. This is owing to the fact that in some States when people commit (even petty crimes) they are removed from the voters roll. This means that a significant portion of the electorate are unable to participate in the electoral process yet they are bound by the decisions which these unaccountable politicians make [Joyce. 2006]. Further, the access to voting in so far as complicated registration process or tests as have been used in the past, all contribute to those who do not have sufficient enough an education to be barred from voting [Wilson]. Alarmingly this refers to a large number of African-American people who still constitute the majority of the poor, uneducated classes [Joyce. 2006]. This is undemocratic in that it could seem prima facie that racial exclusion is a policy used in some states to hold onto power even though they are unaccountable to the entire electorate [Klein. 2007].

The media may at times play a hegemonizing role as opposed to a critical one [Joyce. 2006]. This is especially in the cases of the media operating in a locality that is overwhelmingly in favour of one political school of though as opposed to others. This lack of crtique that the media usually offers means that politicians may become unaccountable to their electorate because their electorate is not being helped by the media to come to any other conclusions. This is also apparent in a definate bias that some media have [Wilson]. Such bias also extends to NGOs which sometimes resort to purely self-serving lobbying.

The electoral college may also be criticized as being unreprsentative in that in all but 2 states a winner-take-all approach is applied to the number of delegates one wins in the state. As such, a candidate may win the popular vote but still lose the Presidency because he/she failed to win enough electoral college seats as with the Bush Jr victory of 2000 over Al Gore [Joyce. 2006]. This means that a President may take office even though he failed to win the majority of the electorates support. He thus become unaccountable by virtue of the fact that the only elected officials may hold him to account before the next General Election.

Lastly, the US political culture is very much elite dominated. On average most elected politicians incuding Supreme Court Justices are white males. This is owing to the fact that the access to capital determines what kind of education and other such resources that one has at their disposal so as to attain the best future possible. This is demonstrated by the fact that of the 100 members of the Senate, over 80 of them are millionaires [Wilson]. This means that the people involved with the making of laws fro everyone in the counrty are unrepresentative to other demographics and are thus unaccontable to them. This is ant-democratic because they are only accountable to other such elected officials who on the whole are of the same/similar background to themselves.

Therefore, it can be seen that the USA is liberal and democratic but only in a qualified sense. This shows that the USA is a model of democracy albeit an imperfect one as this essay manages to consistently point out flaws which threaten the very basis of its claim to model status. This means that the USA is not perfect but can be a model that other nations attempt to implement provided that they are aware of such flaws.

A Superficial Analysis on the Role of Force, Violence and Negotiation in South African State Formation from the formation of the Union until the Pr

2010-05-28T16:31:00.000+03:00

The South African State has undergone many transformations during its existence, starting off as a British Colonial Union formed in 1910 and ending up, at present as a liberal democracy, instituted in 1994. This transitionary process has been characterized mainly by the use of force, violence and negotiation as political tools, all of which have contributed in some way to the South Africa that we know today. This however was not always the case and in the past, South Africa could be identified by its white population's oppression of the non-white peoples of South Africa even though they constituted the majority. Such notions, of racial oppression, were in themselves outdated and as such the subsequent struggles by the oppressed masses helped shape the character and nature of the modern state [Gumede. 2007]. The modern state that was a result of the implementation of such political tools had a dramatic effect on state formation, particularly the pace at which such transformation occurred.

The Union of South Africa was formed in 1910 after the British managed to win the Second South African War (or the Anglo-Boer War as it was known) and were thus able to incorporate the two independent Boer Republics of the time, namely the Orange Free State and the Transvaal, into a wider South African community that also consisted of the British territories of Natal and the Cape. This early form of the South African state, which was given far reaching powers of self-government under minority white rule [Meredith. 2006. p10] was the precursor to the modern state that we know today – mostly in so far as territorial jurisdiction is concerned. This state was a colonial co-conspirator in that the aims of the state, despite trends of Afrikaner nationalism, was to promote British political, economic and social interests [Heywood. 2007. p122] even though the territory was largely considered to be independent. This state was formed out of a violent confrontation largely fought between the British and the Boers. However, the Anglo-Boer War was later renamed (to become the Second South African War) owing to the contribution that the Black and Indian populations made to both sides, as support services. This is an interesting idea as this war came to be viewed, not as an isolated confrontation that took place between opposing forces who competed to secure the gold and diamond resources that the country possessed, but rather a binding conflict that encompassed all who lived in South Africa. This can be attributed to the fact that the outcomes of the war itself drastically changed the country as we know it, as four independent territories were merged into one 'sovereign' state. With this having happened, the fate of these peoples – previously divided by geographical and racial separation – became intrinsically intertwined and the struggles of the oppressed (Blacks, Indians and Coloureds) to attain freedom and equality (which were in themselves modern concepts) would ultimately determine the shape of the South African state.

Although the tensions that existed between the Afrikaners and the British did not evapourate once the War had ended and a Union had been created; and which in itself resulted in the frequent change of administration, the struggles of the 'Black' people would to a larger degree shape the modern state. This is owing to the fact that the Colonial state still existed in so far as the unfair privilege that was accorded to the white population [Simons and Simons. 1983], having never been altered until democratization in 1994. This means that even though the Afrikaners and the British may have detested each other as a result of war time action, namely the use of concentration camps and a scorched earth policy [Meredith. 2006. p4], the privileges that extended to both groups in so far as the reserving of highly paid and specialized jobs for the white population bound them in so far as advantage and opportunity is concerned [Heywood. 2007. P122]. It is as such, the quest of the 'Black' people of South Africa to attain a security and stake in society [Nelson Mandela at his Treason Trial between October 1963 and July 1964 cited in Meredith. 2006. p126] that would most drastically affect the future of the South African state as they were the group that had the most to gain and had everything to work for, be it through the processes of negotiation, force and violence. The interaction that resulted through the implementation of such processes would be what influenced the shape of the South African state.

The African National Congress (ANC) was founded as a small elite movement in 1912 [Gumede. 2007] whose purpose was to promote the cause of the African people. The actions of the ANC from 1910 to the of the1930s proved to be largely ineffective [Meredith. 2006. p117] as the organisation sought to carry out its political agenda through the use of negotiation based initiatives such as petitions, deputations and appeals. This proved to be ineffective owing to the fact that such actions did not stop the Government of the Day from removing Coloured people from the voters roll in the Cape despite the fact that they had held such rights for eighty years [Meredith. 2006. p117]. This early period, during which the idealism of equitable interaction of those involved with the struggle was systematically crushed, highlighted such failures and only influenced the state to become more autocratic in the way in which it dealt with people of colour.

However by the 1940s, with the spirit of Afrikaner nationalism coming to the fore and the ideas of creating a dramatically more racialized South Africa, promoted by Nationalists such as Malan and Verwoerd, the ANC as the forefront organisation of the struggle came to the realization that such negotiation based tools which proved to be ineffective in the past, would continue to do so. That was owing to the fact that those ideals were then gaining credence amongst the white electorate and seemed to be a more appropriate way in which to deal with the 'swart gevaar' or black danger as coined by the NP. This in turn inspired a more militant mood to influence the ANC [Meredith. 2006] which was now prepared to, for the first time, break from the traditional way of dealing with the government and use force as a tool to bring about change to the government's segregation attitudes. This was predominantly influenced by the 1943 formation of the Congress Youth League (or CYL, later to become the African National Congress Youth League or ANCYL) which realised that the drastic change that was starting to occur in white politics (with the drifting away of support from the SAP to the more right wing NP), and later confirmed by the 1948 landslide victory of the NP, would have to be the impetus to change the way in which the ANC dealt with the government. Failure to do so would result in the ANC losing the role that it had carved for itself as the spokesperson body for all disaffected South Africans and would have possibly left it in the political wilderness – something that would have been reflected by the outright Afrikaner nationalist idea of creating a state where the importance of being a white (Afrikaner) superceded any other quality that a person could possess. This ideal of the racially constructed society, which became a reality in so far as the transformation of the South African state is concerned - from a seemingly subordinate British country to an independent, assertive Afrikaner outpost – was the impetus for the introduction of force as a political tool.

The 1950s was the decade where the use of force as a tool to bring about change was the most prevalent. Force can be defined as the application of pressure through various actions to bring about a certain outcome. In 1952, the ANC instituted the Defiance Campaign which called for 'Black' people of South Africa to openly defy the segregatory laws of the state as a method of robbing the apparent legitimacy that they enjoyed through people's obediance of them [Meredith. 2006]. In 1953 and 1954, the ANC again called for a similar campaign of defiance stretching to the Schools and Buses Boycotts which were used to not subject the young African people to the inferior education that the Apartheid state had approved for them, and as a method to challenge the notorious Group Areas Act respectively. In 1955, the single most important anti-Aparthied activity occurred: the ANC and its partners in the struggle adopted the Freedom Charter which spoke of the creation of a democratic state. Although the use of physical force was absent, the sheer numbers and way in which the document was drawn, became the guiding principles that the ANC would use to(through the use of force) bring about change in South Africa. In 1956, the most successful use of force was demonstrated when the Women's March commenced. This was when 20 000 women marched to Pretoria and handed the Prime Minister at the time, Strijdom, a petition to abandon the intended extension of the pass identification system to include black females; in addition to black males, for whom it was compulsory to carry identifiaction documents and work permits. This non-violent yet unified and disciplined action, managed to achieve exactly what it set out to do: the pass was never applied to black women. Ultimately, the effect of the 1950s in so far as the moving away from negotiation to the use of force as a political tool managed to achieve amongst other things, the mass mobilization of the oppressed people's of the country to actively take part in activities that were intended to free them from such oppression across racial and cultural lines. This creation of 'consciousness' of the oppression that was so evident in South African society, posed a threat to the Apartheid governement in that it deprived the government of the power that it had up until that time enjoyed. This consciousness was an awakening that did two things: firstly it made people aware of the abuses of the state and secondly, it made them aware of the success that could be attained. As such, the role of force became especially prevalent in the formation of the modern South African state as it was such force that contributed to the anti-Apartheid movement [Meredith. 2006. pp 119 – 122].

In the 1960s, following the widespread successes of the 1950s, the ANC embarked upon a campaign of agitation against the Apatheid government. This was with the intention of pushing the government into a corner where it was forced to negotiate a settlement with the dissidents. On March 31, the ANC intended on initiating mass boycotts against the pass laws. However, the PAC (which was formed in 1958 when a group of militant Transvaal ANC members broke away to form their own organisation) bypassed the ANC and carried out the march ten days earlier than planned, on March 21st. The result of that day's largely impromptu action resulted in an open confrontation between the PAC and the police with the police firing indiscriminately into the crowd [Meredith. 2006. p122]. 69 people died that day, and the date would forever be referred to as the day of the Sharpville Massacre – many of the people found dead were found shot in the back, indicating that they had been running away from the police. However, this situation was telling in that it reflected the Aparthied government's increasingly desperate attempts to contain and eliminate the qualified success of the previous decade which had boiled over and was threatening to destabilize the state. The Apartheid Government responded by banning all political opposition to itself through the Suppression of Communism Act (which outlawed the Communist Party and the ANC – which was believed to be Communist – who were identified as trouble makers) This was done with the intention of having the ANC disbanded. This effectively closed the door for negotiations to occur because the Nationalists refused to accept the legitimacy of the ANC as an organisation and the cause that they promoted and by doing so, refused to engage with them. However the ANC, in response to the desperation with which the Apartheid state was acting, was in itself left with no option, and in desperation, was forced to go underground. This was compounded by the fact that early on in the decade, the leadership of the ANC was arrested and charged with treason – a charge that carried the sentence of death. The removal of the upper echelons of the ANC's leadership plunged the organisation into further crisis as a new breed of leaders who needed to act, but may not have known how to do so, came to the helm in a desperate time of action. Going underground meant that the operations of the ANC would become more secretive and that the way in which they carried out political programmes, which were now more militant in nature, would become more sporadic and forceful now that they had the government on the back foot and that the door for peaceful negotiations had closed.

This closure of negotiations as an option of interaction with the Government, meant that the only option left was to initiate a People's War [Lodge. 1989]. It was only when all else had failed, when all channels of peaceful protest had been barred to us, that the decision was made to embark on violent forms of political protest [Nalson Mandela at his Treason Trial between October 1963 and July 1964 cited in Meredith. 2006. p126]. The ANC overwhelmingly preferred to remain a peaceful organisation, but was also unopposed to allowing some of their members to form an independent organisation – known as Umkhonto weSizwe (commonly known as MK or Spear of the Nation) – that was dedicated to initiating sabotage attacks on targets of strategic importance to the government in accordance with the ANC's political programme to bring about change. This idea is not uncommon as many liberation movements often have armed wings, like the Communists in Cuba and the IRA and Sin Fein in Northern Ireland [Heywood. 2007]. MK envisaged it attacking the government and not the people through the destruction of power stations, etc. In that way, through actions aimed at destabilizing the state, the use of violence will be justified in that it was not indiscriminate and that it was the only option left to attain the wider political goals of freedom. Although such actions were an overall failure in that they never did manage to hamper the state in the way in which MK would have hoped, they did however create an opportunity for members of MK to undergo military training that could be used if an all out civil war were to ensue. This effected the creation of the modern state in that South Africa was characterized by both a violent government and opposition which could have thrown the process off track entirely.

The 1990s were different in that with the change in power within the Nationalist Party, so to did the ways in which the struggle was dealt with. The 1990s saw unprecedented pressure from home and abroad resulting in the NP agreeing to negotiate its way into democratic South Africa. This managed to avert the impending Civil War that faced the country. The process to achieve democracy was characterized by the seemingly miraculous interaction between the ANC – which had come to represent most, if not all of the anti-Apartheid movement – and the NP – which represented the elite, racist minority – which were in aid of bringing a peaceful end to Apartheid. Even though there was sporadic violence between the IFP and the ANC in Natal [Morris and Hindson. 1992], it was the CODESA negoatiations that were the set piece for the development of the modern state. CODESA was the Constitutional negotiations process that saw both parties agree, disagree and conclude in the successful handover of power. The result of such negotations allowed the process of reconciliation between two warring sides to occur despite the fact they had been in opposition to each other for over 350 years, extending beyond the period of Apartheid and Union. This illustrated the ANC's concerted effort to bring democracy to the counrty, which saw the establishment of a state that was based on democratic practices, legal-rational dealings with its people and where arbitrary racial doctrine did not determine one's fate. The success of such commitment was realised on the 27th April 1994 when the modern, liberal democratic state of South Africa, as negotiated by CODESA – enshrined in the Interim Constitution – was born.

The role of force, violence and negotaition in the shaping of the modern South African state has been undeniable in that each of these concepts have in some way contributed to the country we know today. The way in which negotiation failed, to be followed by force, then violence and then in turn, end with successful negotiation shows that the modern state especially in the South African case was a long process [ that culminated in the formation of the state we know today. This shows that the failures of the past forms of the South African state, have in time come to be replaced by a successful South African one thanks to the process of force, violence and negotiation. Indeed it can be argued that without such tools of political agitation, albeit indirect at times, the democratic South Africa that many of us take for granted, would have never been achieved.

Hobbes v Locke - An Ongoing Coversation.

2010-05-28T16:29:00.000+03:00

The Social Contract Theory is a broad term adopted by many political philosophers who attempt to explain the ways in which the state came into existence [Heywood. 2007]. The basic premise of all social contract theorists is that there exists a relationship between the government of any particular state and those that are governed by it [Joyce. 2006]. It is how this normative ideal is carried out in practice that differentiates the social contract theorists from each other [Heywood. 2007]. This essay will focus on Thomas Hobbes and John Locke, two of the greatest thinkers of the social contract tradition and their conceptions of the Social Contract Theory. In doing so it will highlight the differences between them and articulate which one of their theories best explains how Civil Society i.e. the State came into existence – if either does so exclusively.

Apart from the ideal of the social contact theory being common cause between social contract theorists, the way in which the civil state comes about is also common to them [Heywood. 2007]. They all contend that civil society emanates from people’s need to leave the state of nature. The state of nature is the hypothetical situation which existed before civil society (i.e. the state) was formed. In many respects it is seen as being synonymous with anarchy. However, like with the way in which the social contract operates, the reasons for leaving the state of nature and forming civil society (the state) differ as well [Joyce. 2006].

The starting point of this essay will be to examine the socio-historic context in which both Hobbes and Locke wrote. The reason for doing this is three-fold.

Firstly, it is useful to understand the backdrop against which their theories were written. This allows the reader to understand that their theories were written in response to the specific situations they found themselves in and were used to address the problems they had identified.

Secondly, and stemming from the first issue, it allows the reader to understand their (Hobbes’ and Locke’s) biases better with regards to the state: their biases being one of the primary influences on what they wrote. This is evident for example in Plato’s dismay for democracies as expressed in The Republic owing to the brutal treatment which his beloved teacher Socrates was subjected to. After Socrates was forced to drink hemlock and thus kill himself – rather than be tried as a heretic (incorrectly, according to Plato) – Plato generalized the action of his specific experience of democracy (mob-rule) as being a manifestation of all democracies. Thus, he sought to prove that democracy in its totality was flawed, ignoring all of its positive aspects.

Thirdly, it partially explains away the differences which exist between Hobbes and Locke albeit at a very superficial level.
Thomas Hobbes was born in Wiltshire, England in 1588. He died in 1967. During his lifetime, the society in which he lived underwent sweeping political changes as encapsulated by the English Civil War (which saw the dissolution of the monarchy), the period of government of Oliver Cromwell (which saw a concentration of power in Cromwell similar to that of an absolute monarch and the corruption of the democratic ideal) and the restoration of the monarchy under Charles II (under severely limited powers) [http://en.wikipedia.org/wiki/Hobbes]. These events saw Parliament and the Monarchy rival each other in terms of who could best monopolize power and best be able to rule.
It was this that would lead Hobbes to later believe that power could only ever be concentrated in one institution lest the competition of this era was to be repeated which inevitably would lead to the destruction of society and the manifestation of the state of nature – something which Hobbes believed the government’s role was to prevent [http://en.wikipedia.org/wiki/Hobbes]. This is the very basis of Hobbes work. This is owing to the fact that Hobbes viewed these events, mentioned above, as being necessary in the pursuit of a single idea: that ultimate power and authority needs to be vested in a single institution of society that would govern alone and ensure that no other institution or person would rival its own legitimacy; and that all over whom it governs shall adhere to the rules that it prescribes to govern that society.
Thus, the idea that Hobbes’ work is a defence of the absolute monarchy is questionable – he believes that a group of people of people can rule just as a monarch can, provided that said group of people is the most powerful (and hence best suitable) to do so. If anything, the period mentioned illustrates perfectly Hobbes’ claim: that where competition exists owing to the fact there is no single institution that enjoys the monopoly of power, the threat to that society is so great that if no single institution prevails, then society threatens to be torn asunder and negate the ability of anyone in that society to attempt to live a good life [Forsyth. 1987]. Hobbes argues that the Sovereign must always be the strongest institution in society for if it were not to be it would not avert the problems indicated above.
According to Hobbes the state of nature displays the following characteristics. Each of these characteristics either make the incentive to co-operate or collude in collective efforts in the absence of power less or are a justification of why humans behave the way they do in the state of nature.

Firstly, competition as illustrated above is probably one of the most dangerous characteristics of the state of nature. This is owing to the fact that it can negatively affect society at two levels – at the level of inter-institutional disputes (as illustrated by the English example) or at the level of ungoverned individuals. In the case of the latter, ungoverned individuals threaten to not even allow the institutions to become a consideration if the competition experienced is too severe [Caton]. This is owing to the fact that competition among ungoverned individuals – i.e. people that live in the true state of nature and are not subject to some form of organised society – usually happens on three fronts:
for gain – which can be viewed as competition for resources;
for diffidence – which can be viewed as competition for security; and
for glory – which can be viewed as competition for reputation.

In each of these circumstances, these individuals attempt to best give effect to their own self interest. In the case of (a) a person will try to gather as many resources as necessary for his/her subsistence; upon doing so they will try to give effect to (b) which is done in aid of protecting that which they have been able to accumulate; which if they are able to achieve they will then try to give rise to (c) which speaks to the ability of an individual to provide for themselves and at a very basic level, enjoy a reputation that is reflective of their achievements that will in all likelihood allow them to mate – something which as Darwin argues we are genetically programmed to do. However, at each of these attempts, the individual faces challenges that may/may not be within his control. Irrespective of whether he/she is able to influence the nature of these challenges the fact is that they are real and threaten to either wholly eliminate the a step in this ‘chain of being’ thus negating any other efforts which are made in that vein or make the achievement of the step/end-goal that much more difficult [Forsyth. 1987]. The resultant of this is that society will be exceptionally violent as each agent within that society attempts to secure themselves against others thus leading Hobbes to argue that life is “solitary, poor, brutish and short.”

Secondly, the idea of morality which could/should act as a regulator of behaviour amongst agents within a particular state differs between those same members of society in the absence of a single power that has the ability to regulate behaviour and morality of its own accord. as a result, the rules that are then applicable then become difficult to determine where members of that society strongly disagree about the concepts of justice, morality and so on.

Thirdly, as Hobbes contends, human beings are irrational and lack the power to reason. Our tendencies whilst within the state of nature are to behave in as uncontrollable and unpredictable a way as the state of nature is itself. Therefore, whilst collusion or cooperation may be the best way to achieve mutual benefits for all members of that society, the inability to do so, especially where part of the rationalising process involves the forgoing of self-interest is concerned, takes precedence.

Accordingly, Hobbes argues that the best way to eliminate such threats is to give rise to a single institution of power, a Sovereign that will govern all members of society that it rules within a state. In other words, society must allow for the creation of a Commonwealth [Forsyth. 1987]. This is owing to the fact that this greater power has the ability to regulate the competing rights and interest within society; to act in a reasonable and rational manner when determining disputes within that society (even if it is wrong though, it shall have its way given its superior power) and to ensure that any action taken by the Sovereign is consistent; and importantly to ensure that a single moral standard is imposed upon that society to which all members must adhere, in performing these functions, the Sovereign acts as an enabler to members of that society which are given a relative degree of freedom provided that they do not challenge the macro-structure of that society as determined by the Sovereign and to which they consented. The idea of consent is implicit in the fact that systems of government are artificial agreements that can only exist for as long as the signatories to that agreement agree to abide by the conditions of that agreement or a party (either to the agreement or as a result of it) are able to force the others to abide to such agreements.

Whilst members of a society may prefer complete freedom, for the reasons highlighted above, such freedom cannot be attained. In addition to these reasons, a lack of complete freedom will not be attainable anyways given:

the lack of organised society and the predominance of conflict and competition creates a situation similar to anarchy that leaves no person stable and continuously prone to threats that could negate any gain made; and

that a limitation of freedom will happen anyways – the strong will attract the weak who willingly give up their complete autonomy to enjoy some benefit from the strong (be it resources, safety, reputation or all three). Such is the case with herds of animals that group together for the purposes of collective benefits [Caton].

It would seem therefore that the society which Hobbes postulates in favour of is actually a sophisticated representation that is present in nature.

According to Hobbes therefore, it will be in the best interest of the members of that society to forgo this desire and still enjoy a relative degree of freedom within a society that eliminates those same threats were they to exist alone. Those benefits also include:

the self-preservation of those people against internal and domestic threats which threaten their resources, their safety and their ability to develop reputations;

an aggregation of rights which whilst it may not cater to the particular tailored needs of all of the members of any given society, will nonetheless allow the to be able to enjoy some of the rights which they determine are of importance to themselves [http://etext.library.adelaide.edu.au/l/locke/john/181s/].

John Locke is often described as being the father of modern government. Indeed his ideas have been so profound that they were said to be the impetus for the constitutional change which occurred in the United States of America following the signing of the Declaration of Independence [Wikipedia. 2009]. Locke also represents a break with the dominant Hobbesian political tradition which preceded him. Accordingly, given his importance to actual political happenings in the world and his influence on the discourse of the subject, one needs to examine the assumptions Locke makes about human beings and the state of nature in which they live and how these impact his theories on government.

Chapter 2 is the main chapter in which Locke makes his arguments about human nature [Hindess. 2007]. In that Chapter he argues the following:

Firstly, he argues that man is created by God. Accordingly he contends we are God’s property. Therefore, man has “no liberty to destroy himself or so much as ant creature in his possession yet when some nobler use than its bare possession calls for it” [Locke. II ii 5]. From this we can interpret three things: (a) all men are created by a superior being who has pre-determined our existence; (b) given that our existence is pre-determined by a superior (and religious) being we are expected to respect (i.e. not kill) all other things which he has created – man or animal – unless there is a noble and exceptionally compelling reason for his doing so: and (c) this pre-determination is so great that it even forbids a person from harming themselves.

After having established our existence, he goes on to describe the ‘community’ in which we live in the absence of civil government.

Secondly, he contends that “being all equal and independent no one ought to harm another in his life, liberty, health or possessions” [Locke. II 6]. This contention inherently means that God has created all men equal and that no person has the right to violate another’s rights given that we all stem from one creator who created us the same – formally and substantively [Hindess. 2007].

However this may be problematic on two grounds. Firstly, this law, the Law of Nature, may be violated by another person. There is no guarantee that they will not attempt to harm another person in relation to their life, liberty, health and possessions. This is logical as; in the absence of civil government the equality with which we are created cannot be protected. The only defence that an individual can attempt to execute will in all likelihood be overcome as some may have access to more resources to overpower individuals [Hindess. 2007]. Irrespective of whether that defence is successful it poses the situation that the degree of liberty and ability to own possessions which people are born with are themselves unreasonably limited. Secondly, the problem which stems out of a violation of these laws is with the ability to punish. In the absence of civil government there is no neutral authority that can judge the matte/dispute on its merits. Rather, people would succumb to their emotions and not punish in proportionality to the offence. Further, even if they were to make real attempts to punish in proportion to the offence, the varying degree to which people themselves people feel violated – and thus punish accordingly – may result in an inconsistent application of justice which in itself is an unacceptable situation.

The State of Nature therefore is the situation in which there is “want of a common judge” [Locke. II 19]. The State of Nature is different to political society as the latter is one in which a legitimate government exists that is constitutes and governs by reason attempting to best cater for the rights and needs in society. The State of Nature is an analytical construction which is used to illustrate the relationship that people have to each other and the reasons that they have to surrender their absolute liberty for the protection of other rights – life, liberty (to a lesser degree), possessions and health [Hindess. 2007].

To understand political power one must examine the state of nature. The state of nature is one of equality and freedom with no man having more power than any other. This freedom does not extend to impinge upon the equality and freedom of another or himself (this is owing to Locke’s religious view that suicide is self-murder: we are God’s creatures and have no right to end ourselves) [Lowe. 2005]. This impinging can only be justified in the case of it being for some nobler cause. Owing to this state of equality, the only way in which a man can be subjected to the authority of another is when he subjects himself to it. The incentive to do this is to create a community that assures comfort, safety and peace – it creates certain enjoyment of these rights, especially against foreign power – i.e. out of the state of war. This does not impinge upon the state of nature (equality and freedom) but rather creates the criteria against which such conduct can be measured and appropriate action can be taken if it falls short of respecting the rights of others. In fact, he would be willing to give up complete freedom for relative freedom to be assured enjoyment of his rights

Given that the government is granted power (and legitimacy) by the people over whom it governs, it enjoys the right to act until such time that it no longer enjoys that support. Consent/support can be given to people’s representatives who then exercise consent on behalf of those who gave them power. This power must be exercised in the best interest of those people and must be to the degree which that support is given. These are the formative ideas of representative government. In a case of conflict between executive and legislature (pre-party system) the people must decide (ultimate authority on such matters). This includes the right to use force against internal and external threat (i.e. it enables the monopoly of the use of force). Those who enjoy executive authority may abuse that authority to their own benefit. Accordingly, power must be vested in a duly assembled and diverse group who make laws for the good of the country and submit themselves to it as well. This ensures that a common good and bad is created which allows for consistent application and allows full enjoyment of say fro example freedom [Hindess. 2007].

Given that laws are made and have constant force the executive and legislative powers are separated. The legislative power is ensures that laws are made as they are needed and the executive ensures that these laws are implemented (the laws of society would be useless if there was not organ of that state to implement them). Where a man infringes upon the laws of nature of another man, that man is allowed to protect his property and his life. Such protection may also be executed by the government who is vested as the man’s representative who is to look after his best interests. Such protection must be in proportion to the violation of the right. Such proportion can be determined by man’s reason – such reason which informs and governs his other (rational) behaviour. Reason would also dictate that an unbiased judgement is made – if not, such an act commits the same crime for which they persecute (violation of the right of nature). This averts the situation of man giving into his own biased nature. These are the grounds for which an independent judiciary is created [Lowe. 2005].

Laws are enabling factors [Lowe. 2005]. Whilst they may limit certain acts they are necessary to ensure the wider enjoyment of the laws of nature. Further, constant fear of impingement from outsiders decreases the enjoyment of that right – hence a community acting as an enabling factor too. Laws must be applicable and consistent for all of society – those given power are given power by all of society to rule for all of society, not specific groups.

Upon weighing up both Hobbes’ and Locke’s conception of the social contract theory we find that neither of their theories is able to completely refute and outweigh the other. Rather, it is in the subtle detail which leads one to believe that they were both right to a degree in terms of how civil society is brought about.

Firstly, they both agree that some form of ruler is needed. This is understandable and justifiable as in the absence of such a power each individual is at greater risk to have their own freedoms and liberties infringed upon.

Secondly, they both believed that the ruler needed to be influenced by the people they ruled over. Locke believed that this level of influence should have been significantly greater than the limited and extreme circumstances where Hobbes believed that the people should affect the commonwealth after it had been concluded (revolution). What they both have in common however, and what is supportable in their difference is that the social contract theory remains valid for as long as the people are served by their ruler and that where the ruler no longer is able to do that then the people are justified in re-determining who should rule them so that their collective interest is best looked after.

Thirdly, they both agree that human nature can result in greater difficulties being caused and that in the absence of a ruler to regulate the behaviour between agents in the state as is the case in the state of nature, the individual faces greater possibility of being prejudiced against through the direct action of others (Hobbes more so, Locke less so).

The nature of the problem that they both attempt to answer illustrates the complexity with which government and politics tries to deal with. Further, given that both these issues are normative, it is often the case that the degree to which a person agrees with either Hobbes or Locke will depend upon the degree to which they are persuaded by their argument. Bearing in mind the three criteria set out at the beginning of this essay the ideal way in which the state comes into existence is highly contentious and cannot be settled easily. The author of this essay is of the opinion that the different conceptions of the state have applicability in different circumstances and that if anything the state should be governed in a way that primarily speaks to the needs of the people.

In conclusion we can note that Hobbes and Locke are owed a measure of gratitude for their attempts at clarifying the mystifying problem of how it is the state came into existence.

Fanon and the ANC

2010-05-28T16:28:00.000+03:00

Frantz Fanon was an intellectual of his time whose influence in the anti-colonial and anti-racial movements worldwide cannot be denied. The Wretched of the Earth, his most famous work, contains prescient knowledge whose pertinence to a post-Apartheid South Africa is remarkable despite (a) his writings predating South Africa’s attainment of democracy by over thirty years; and (b) his arguments being aimed at the excesses of the newly formed governments of post-colonial states [Fanon. 1961. 119]. It is the intention of this essay to frame Fanon’s criticism of the national bourgeoisie and show its applicability to the present day South African body politic. However, this essay will also postulate the degree to which these criticisms are applicable in light of the unique South African experience of Apartheid and the post-Apartheid Constitutional era [Gumede. 2007. 189]. It will argue that the irony of the advent of political liberation in this country has actually not substantially been able to overcome the problems that Fanon has identified. In doing so it will argue that the attainment of democracy has resulted in the greater alienation of the South African ‘national bourgeoisie’ from the people of South Africa thus undermining the very goals of the struggle which they were once at the helm of.

Before the criticisms of Fanon can be examined there are two questions which need to be answered.

Firstly, who is the national bourgeoisie according to Fanon and what role do they play in a post-colonial state?

Secondly, can this concept of the national bourgeoisie be the same as the post-Apartheid South African leadership, specifically the ANC.

These questions need to be answered in order to ensure that the ‘assumed’ connection between the national bourgeoisie and the post-Apartheid South African leadership actually exists and to what extent the criticisms levelled against the former apply to the latter.

According to Fanon, the national bourgeoisie is the leadership of the revolutionary party who attain independence from colonial powers but subsequent to the attainment of that freedom, replace the colonial bourgeoisie as a ruling upper class in society that is not as closely associated to the people of the struggle as they were when they were still part of it. The role that they (attempt to) play in a post-colonial state is that of governance: the national bourgeoisie is responsible for assuming the levers of power in the absence of the colonial masters and (help) create a state that is reflective of the people’s needs and is attuned to their desires. As has already been alluded to and as will be discussed in this essay, the national bourgeoisie fall far short of this goal [Fanon. 1961. 119].

Having established who the bourgeoisie is, it is necessary to highlight the parallel situations which existed between Colonialism and Apartheid. Colonialism is defined as being a policy based on control of another people and/or place based on ideology (be it racialism, nationalism, or likewise). Given that Apartheid, which was a policy of control and subjugation in the same vein [Gumede. 2007. 54] – control based on the ideology of race – one can deduce that even though South Africa had only attained democracy in 1994, having relieved itself of colonial rule in 1961, the effects that the majority would experience would be similar/the same. This is owing to the fact that Fanon’s criticism of the national bourgeoisie emanates not from the fact that they are in a leadership role specifically after colonialism, but rather when the national bourgeoisie are in a leadership role that is part of a political system based on majority rule.

However, it is this exceptional characteristic – South Africa having experienced two systems of racial subjugation one after the other, unlike other African states that experienced majority rule after independence[1] - which limits Fanon’s criticisms in some respects. This is owing to the fact that having experienced Colonialism and further subjugation under Apartheid, the majority in this country understood the need for Constitutional protections and a truly democratic dispensation. Thus when South Africa experienced majority rule, part of attaining that majority rule would be that the majority would be constrained by a constitutional dispensation that respects both majority and minority rights [Gumede. 2007. 354]. Unlike other post-colonial states, who experienced majority rule in a largely unrestrained manner where, if any constitutionalism developed, it did so via a process of trial-and-error more so than being carefully planned[2] hence, some criticisms against the national bourgeoisie (i.e. the post-Apartheid South African leadership) do not apply to the South African context completely.

Further, the post-Apartheid South African leadership finds itself in politically the same situation as most ruling parties do post-independence: namely they are in a position of single party/hegemony and dominance [Fanon. 1961. 137]. This is important as it illustrates the undeniable link between the situation when ruling political parties enjoy impregnable majorities and are able to run rough-shod over opponents and any other obstacle in their way. Therefore, even if the issue of time was considered to be material with regards to the applicability of the Fanon’s criticism, the fact that South Africa and such post-colonial states share such an important characteristic from which a lot of Fanon’s criticism extends, the criticisms Fanon has identified would apply all the same.

Again, this is slightly different in South Africa given that the negotiation of a strong constitutional dispensation by the ANC when in opposition came to haunt its efforts to monopolize power in its own hands when it was in government. The skirmishes we see between the ANC and other actors when the former is taken to court by the latter for practices which are seen (and often found to be) unconstitutional [Gumede. 2007. 465], reemphasises the point that where a party enjoys large scale political support it becomes a danger to the very underpinning ideals it fought for; an accusation that Fanon makes against the national bourgeoisie in a post-colonial state most vociferously.

Fanon identifies this as being the root to these problems for three primary reasons.

Firstly, the access to the corridors of power isolates the national bourgeoisie from the people of their country. Instead of being responsive to the people’s needs, the national bourgeoisie is consumed by playing politics. This ‘playing politics’ need not necessarily be making the decisions that need to be made with regards to national fiscal policy or security regimes but rather is the political race for office and the maintenance thereof. This is owing to the fact that holding office brings with it certain benefits that such individuals would have never had before. Accordingly, such individuals are then preoccupied with ensuring that their standard/quality of life never decrease and subsequently focus on internal party power shifts [Gumede. 2007. 532], being sycophants to the party leadership and their popularity (read electability) within the party rank – without which they may be out in the cold: a feat that they would never want to experience now that they have had a taste of the better things in life. Further, government officials become accustomed to a standard of life that is isolated from and often stands in stark contrast to everyday life that being a Minister of State or Member of Parliament makes such individuals expectant of a quality of life that they see themselves as being entitled to (for their part played in the struggle) and which has the effect of desensitizing them to the context in which everyone else – not of the privileged upper class – exists [Fanon. 1961. 139].

Whilst, secondly, no one would deny that many people involved in the struggle underwent extraordinary suffering and had to encounter gross personal sacrifice which to some degree does deserve reward, the problem sets in where that debt of gratitude as it were gives way to a culture of entitlement. This is especially problematic as it quickly gives way to a situation where people are given jobs and other opportunities not because of their true deserving or talent but because of their associations to the ruling elite. Whilst one would expect that engagement in the struggle is done for altruistic reasons such as the defence of human rights, often it is the case that such altruism once exposed to power and wealth is replaced by avaricious greed. Even if done for some self-interest, the degree to which reward is sometimes demanded is even more problematic as it often outweighs either (a) the contribution that the claiming individual made or (b) the benefit derived from making such reward. Further, such a system prizes affiliation to the party over any other tangible and measurable trait such as skill and competence [Fanon. 1961. 136].

Thirdly, the placing of the party above and beyond reproach and the reconfiguration of the party as the means to access wealth is in itself dangerous on several fronts: (1) it encourages support and joining the party not because of the party’s credentials to deliver but rather as a means of self-enrichment; (2) the state in the hands of the party is run on ad-hoc basis with key appointments (affecting the entire state) and are made according to factors other than skill such as political affiliation; (3) it blurs the distinction between the state as a neutral entity and the ruling party in government as the servant of the people.

Interestingly, isolation and alienation [Fanon. 1961. 119] also comes from the fact that the national bourgeoisie is unwilling to share the spoils of the state with anyone else (including its own mass-supporters). The national bourgeoisie is however able and willing to work with each other for the fact that when benefits are shared amongst a minority, the overall benefit derived is higher per individual and that colluding with each other ensures that the national bourgeoisie as a class dominates the access to benefits and is able to keep those benefits to themselves in succession.

Fanon levels all these criticisms against the national bourgeoisie and from the examples illustrated, we see that this is also applicable to the post-Apartheid South African state. Fanon correctly identifies that self-indulgent self-interest is the contributor to many a problem experienced by the state and this we see is applicable even to South Africa despite the presence of a strong Constitution for the ruling party will attempt to as far as it can satisfy it’s Members needs.

Upon examination of Fanon’s other criticisms levelled against the national bourgeoisie we see that they too are applicable to the post-Apartheid South African state. His argument that part of the problem with regards to self-interest is that the national bourgeoisie have no ownership in the economy, and thus no vested interest to ensure that it succeeds. They are reduced to playing the role of intermediary from which they get little profit which does not even get invested back into the country [Fanon. 1961. 139].

We see that Fanon’s identification of the problem was correct for once the access to money-making industries opens up the national bourgeoisie has no interest in taking ownership of that opportunity in the sense that they can create increased long-term sustainable wealth and employment from it; they are only interested insofar as the money that they can derive from it. This is evidenced by the fact that their self-interest allows them to earn some money from acting as the intermediary as opposed to earning no money as a result of a failed industry. Further acting as an intermediary ensures a relative degree of wealth in a long term sense. As Fanon correctly points out the intellectual laziness – which could be read as lack of political will – to take hard decisions to change that situation and reduce the dependence of the state on its former colonial master is a missed opportunity that hurts the people at large most and the national bourgeoisie least.

Fanon’s arguments whilst limited in their applicability do justice insofar as explaining South African society is concerned. He identifies that self interest is the worst thing to exist in a post colonial (read post-Apartheid) state as it undermines the values that were fought for in the struggle itself. This should be essential reading for all members of the ruling party so that they can understand what their continued alienation has done and what it continues to do.
[1] Note that this excludes Zimbabwe who experienced Independence through the Universal Declaration of Independence declared by the Smith Government. If anything, Zimbabwe is similar to South Africa insofar as its experience of a dual system of racial subjugation.
[2] Like South Africa experienced with events such as Codesa and the Multi-party negotiations.

Free Trade Doesn't Hurt... much?

2010-05-28T16:27:00.001+03:00

The international system of trade has largely come about due to the process of globalization [Scholte. 2005].

Globalization may be defined as the increasing integration of nations and the people who live within them [Joyce. 2006]. One of the main proponents of globalization has been the increasing economic integration of nations. This refers to the ability of an American company (such as Coca-Cola) to have operations located throughout the world. This creates the situation where, in the modern world more than ever before, the interests of Coke may be shaped by the political goings-on of a country like South Africa, located on the other side of the globe. This is owing to the fact that if the company has a (particularly profitable) presence in the (South African) market and by means of a revolution, a military junta were to come to power and all American products were banned, the consumption of Coke as well as its overall profitability would fall. Thus a large and powerful company like Coke, which would be worth less to the American government (given that it is a source of tax income to the government), could use its influence to get the American government to pressurise South Africa to change its policy towards American products.

This example shows that there is an economic-integrative aspect to globalization. The happenings in one country affect the economic standing of a company, and to an extent the country in which it is located. However it also shows that there is a political-integrative aspect to it as well. The American government’s response to the South African junta’s ban on the consumption of American products is out of political necessity. Without their response, they lose out on tax income which in turn limits its ability to fulfil domestic and other international political obligations such as public expenditure programmes and developmental loans respectively. Whilst this example and the analysis which stems from it is relatively simple, it nonetheless shows what the international system of trade is concerned with.

The international system of trade is an amalgamation of these two things. It concerns the interplay between international forces in relation to politics (the acquisition, distribution and exercise of power) and economics (the production, exchange and consumption of resources) [Scholte. 2005].

An example of one of the products which illustrates such an interplay and which is encompassed by the international system of trade is the international oil market. Oil is a valuable resource that is in demand. It is a valuable commodity for without it; none of the economies of the world can function. It is produced only by countries which possess oil reserves. It cannot be developed synthetically. Therefore countries which are able to produce this commodity are in a powerful position to make demands for supplying this product. Such countries, like Saudi Arabia, can use this power and this influence that they have to negotiate terms which are favourable to themselves [Little. 2005]. This is evident in the relationship that exists between Saudi Arabia and the United States of America (USA). The USA is a large consumer of oil. The USA also, often sanctions countries in the Middle East which follow Islamist-theocratic-eccentric forms of government. Saudi Arabia is one such country that operates under this system of government but finds itself allowed to do so without repercussions from the USA. This is owing to the fact that if the USA were to sanction Saudi Arabia, Saudi Arabia would in turn limit the amount of oil it supplies to the USA. The cost of sourcing alternative oil supplies and ensuring that the right quantity of oil is supplied is found to be too expensive. The USA would rather have Saudi Arabia operate under a system of government that it disagrees with, than do something out of political motivation that would cost too much economically [Little.2005].

The interplay between politics and economics (in relation to the supply and demand of goods and services) is the international system of trade.

The two examples used to illustrate some of the aspects of the international system of trade thus far in this essay, are not confined merely to countries. Rather it encompasses the influence that countries, companies and even individuals have within the system. These different ‘units’ which exercise influence within the system, may be referred to as agents [Sen. 2001]. Agents are responsible for driving the market. This is owing to the fact that agents, irrespective at what level we choose to examine them, demand and supply goods and services. The demand and supply of goods and services amongst many agents is what the market actually is; each of those agents making decisions to best satisfy their wants and needs based on the limited resources that they have in their possession [Parkin, Powell and Matthews. 2008].

For the purposes of this essay though, we shall focus only on countries as agents. This is owing to the fact that the other types of agents mentioned, i.e. companies and individuals, are subject to the macro-economic policy decisions made by respective governments [Parkin, Powell and Matthews. 2008] .

If a government decides at a macro-economic level that it will not allow the consumption of cigarettes, any company that exists within a country at the time and produces cigarettes, will no longer be able to. If it were to continue, it would face the situation where it could face legal consequences for its continuing trade. A similar situation is faced by any individual within that country who wishes to consume cigarettes. He will no longer be able to do so without facing legal ramifications.

This is even more prevalent in the international system of trade. This is owing to the fact that the agreements reached between countries at a macro-economic level, shape the market for various goods and services and determine whether companies and individuals may participate in them. If China were to ban Japanese products, Japanese products cannot be imported by Chinese businesses or individuals for the purposes of being sold. Likewise, if South Korea were to ban the consumption of whale-by products, Japan would not be able to export whale oil and meat to South Korea. A Chinese or South Korean company cannot import the Japanese goods when a decision has been made at a macro-economic level to ban them. The ‘rules’ and terms of trade are agreed to by countries in the international system of trade. No company or individual located within a country who is a signatory to those rules may go against them. Hence it being necessary to examine the way in which countries respond and behave towards each other as agents

The primacy of countries having been established, for the purposes of better understanding the international system of trade, it is also necessary to establish what countries are. Countries are not entities which can make decisions for themselves. Countries are territories of nations [Oxford. 1978]. Rather, when countries are referred to for the purposes of this essay, they must be viewed as being representative of the government of the day of that particular country. Therefore, when we speak of China’s policy towards the Dalai Lama, we infer that China is representative of President Hu Jintao’s government.

Countries, like the people who occupy them, are varied and in many cases are dissimilar [Joyce. 2006]. This is ignoring physical features which may differentiate them, as well as the language(s) that the inhabitant population speaks. This difference rather refers to the different political affiliations of various governments (e.g. Capitalism as supported by the government of the US contrasted with Communism supported by Cuba), the difference in methods through which they came to power (e.g. the change of power as a result of peaceful elections such as that in the USA and the coup d’ etat that brought the Castro’s to power in Cuba) and the standing that they enjoy within the international community (e.g. the general high regard that is had for Switzerland and the general low-regard for Zimbabwe).

Whilst countries may be as different as they are illustrated to be above, there is one thing that is universally common to them. That is the goal of each of them, individually and in some cases collectively, attempting to attain levels of economic development [Torado. 2000].

Yet, as is to be expected, the very idea of development itself is a contested idea [Thomas. 2005]. There are two mainstream theories of what development is and what it should be concerned with.

The ‘orthodox’ view of development is that it involves modernizing economies from labour-intensive, ‘backward,’ economies into free-market, industrialised ones. It purports the idea that the free-market system would be able to take any economy to a ‘take-off’ point where the economy becomes valuable and viable. The primary agent of achieving this growth is business with minimal but strategic support from governments. It also suggests that wealth would have a trickle-down effect, namely that wealth would move downwards from richer to poorer people within the economy by means of creating a societal framework where through hard work and expertise, poorer people have the ability to improve their own lives Thomas. 2005]. This is supported by the provision of services which are focused on catering to the needs of the individual and remain affordable and efficient based on market forces and competition [Sen. 2001].

This view is largely associated with the developed world.

The ‘alternative’ view of development is that it involves the creation of human well-being through a redistribution of resources [Thomas. 2005]. It purports the idea that people within society are unequal and that the government must actively involve itself with levelling the playing fields [Joyce. 2006]. The way in which the government does this is two fold, namely, owning and regulating the factors of production and the provision of, either, adequate work or social grants for individuals to support themselves [Parkin, Powell and Matthews. 2008]. It also suggests that wealth cannot be accessed by poorer people as they are exploited by those who are better off than they are and as such the government must be concerned more with people at the bottom end of the scale and not the richer ones. The idea of sufficiency as opposed to overall economic growth is adequate for society at large [Thomas. 2005].

This view is largely associated with the developing world, of which LDCs form an integral part.

The difference in these views is as a result of the historical influences that have shaped the world as we know it today. Colonization and slavery are but two examples that that have resulted in the world being divided into the developed and the developing world. This is owing to the fact that each of these involved countries from the developed world, e.g. the United Kingdom (UK) and the USA, exploiting countries from the developing world for the resources that they possessed in abundance. These resources were as diverse as people to be used as cheap, slave labour, gold, of which local populations were unaware of its true value and similar products. This exploitation has historically allowed the developed world to benefit from an injustice that had occurred a long time ago [Sen. 2001]. Over time, the benefit that was accrued in the past has increased in value. Countries within the developing world have never been able to obtain full compensation for the commodities that were taken from them nor have they been able to obtain resources at the prices that their previous colonial masters had done which contributed to their development.

In this sense, the international trading system, has historically, underdeveloped LDCs. This is for the main reason that LDCs had been subjected to unfair treatment for the benefit of the developed world. In fact, without such subjugation, the developed world would not be in a position where it could be referred to as being developed [Thomas. 2005].

However, this kind of unfair treatment within the context of the international trading system has continued in modern times. We shall examine the problems surrounding free trade which is the primary way in which the international system of trade has continued to underdevelop LDCs.

Free trade is the system of trade between countries where no barriers exist to prevent trade from happening [Dunne. 2005]. Free trade is focused on ensuring that the consumers of various commodities get the best possible value for their money (i.e. goods at cheap prices of good quality). This can be achieved through competition [Parkin, Powell, and Matthews. 2008]. Such barriers include things like tariffs, quotas and subsidies. All of these are political implements used by countries to benefit the goods produced in their countries by making them cheaper and increasing the price of imports by adding hefty taxes to their selling price. This is grossly unfair and undermines competition as the fundamental tenet of the free market system for it could allow the situation to arise where consumers are paying for goods that are not necessarily the cheapest, nor of the best value, but are doing so because they create the high levels of employment within a country and the government of the day deems that particular industry to be of strategic importance. Such is the case with South Africa and its textile industry [Democratic Alliance. 2009].

South African consumers pay higher amounts for textiles owing to the fact that Chinese textiles are, through means of tariffs and similar such implements, are made to be more expensive. The South African government actively chooses to let South Africans pay a higher price, which incidentally means that the poorest people of the country are less able to afford textiles, because they have deemed the textile industry to be of strategic importance. This is owing to the fact that the textile industry is a large employer. The ANC is in an alliance with the Congress of Allied Trade Unions (COSATU). COASTU’s members are largely from the textile industry. If Chinese goods flood the markets many of their members will be out of work. As such, COSATU uses its influence of being a vote-getting-machine for the ruling party to ensure that the textile industry is protected even though that may not be the best possible scenario for the consumer.

Similarly, countries in the developing world are barred from allowing their products to enter that of developed countries even though it would result in the best possible scenario for consumers. This is owing to the fact that countries strategically protect industries through non-aggressive ways such as providing subsidies to those industries. This is different to the South Africa-China example above.

Subsidies mean that the government pays part of the production cost of a commodity [Parkin, Powell and Matthews. 2008]. This means that the cost that the producer has to pay to produce that product is less. The effect of this is three fold.

Firstly, the selling price of the product can be reduced. This is owing to the fact that the commodity can be sold at a price that cost even less than it did to produce. The producer would only need to cover his own cost and not the contribution made by the government. This means that the product produced by these subsidised producers may be sold at a cheaper price, even though it cost more to produce, thus forcing developing countries out of the market.

For example, US farmers produce a bag of corn for $2.50. If the government were to subsidise $1.00 of that cost, it means the farmer would only pay $1.50 to produce a bag of corn. If the farmer were to sell his corn for $2.00 he would still make a profit, on the money he paid to produce the corn, of $0.50. The shortfall of $0.50 need not be taken into consideration as it was the government and not him that loses out. If Kenyan farmers, Kenya being a developing country, produce corn for $2.00, in order for it to be profitable it would have to sell the corn at a price above $2.00.

So, secondly, even if they were to do that though they would be forced out of the market as US corn would be cheaper. So even though it cost less to produce in Kenya, it is still more expensive to buy.

This problem is, thirdly, compounded by the fact that developing countries cannot afford to subsidise their farmers.

A similar situation exists with the European Union (EU) and its Common Agricultural Policy (CAP) [Christiansen. 2005].

This particular problem has been the subject of many protests within the international community, from formal protests within international institutions such as the World Trade Organisation, to informal, and often violent protests at meetings of the G8 [Joyce. 2006].

This largely mercantilist approach to international trade is mostly favourable to developed countries as they have the resources, both historically accrued and in modern times, to actively pursue policies that benefit their countries [Woods. 2005]. Developing countries are in a far weaker position, historically, and owing to the fact that they are in a state of dependency when it comes to the developing world [Woods. 2005].
Whilst LDCs have been underdeveloped by the international system of trade, they themselves are not entirely free from blame. Many LDCs have made political decisions that continue to perpetuate their underdevelopment. This essay will examine three such decisions, namely: commitment to full employment and the promulgation of legislation that hampers the usage of a county’s comparative advantage. When these are considered, it shows that in each instance the possibility for economic growth is there but is undercut by the political decisions that governments take.

Many developing countries have an ideological commitment to full employment. This commitment is in line with their alternative approach to what development actually is.

Full employment is described as the policy where all people looking for work are in actual fact employed. Many developing countries support this idea as they see it as a successful and desirable neo-communist position, which is what many of them espouse to be. However full employment does not work [Democratic Alliance. 2009]. The government has ample resources at its disposal and this, as the argument goes, should be the only requirement that one needs before making the state an aggressive employer of the unemployed. The purpose of doing so is to ensure that, as per the view of development adopted by supporters of this theory; those who are the most vulnerable in society have some means to earn an income.

Realistically this theory, despite some admirable intentions, cannot work.

Firstly, even if the government were able to employ all people who were seeking work, the government would not be able to afford to keep a workforce at pay levels that people would be satisfied with [Joyce. 2006]. This can be attributed to the supply-and-demand theory of the market system. When there is a scarcity of a particular skill, the market has a demand for it and those who satisfy that demand are rewarded suitably. However when there is an over supply of the product and the demand is too low when compared with the supply, those who are able top provide the necessary skill have top work at lower rates [so that the may gain some method of employment. This is known as the grace to the bottom theory [Sen. 2001].

Secondly, the government does not actually have as many posts as it should have to satisfy such high work demands levels.

Thirdly if the government were able to afford employing everyone at a relatively decent rate and had work for them to do the market forces would ensure that over time such an overarching and over-staffed bureaucracy would be cut down to size. This again has to do with market forces. The market would not permit for consumers to keep such agencies of the government going. The government would have to compete with private enterprise and because it does not have as many costs as the government would have in given situations, private industry would always come out on top as the consumer’s choice. This is largely due to the fact that the private industry product is cheaper and is produced in a more effective and efficient way; the only way that would be conceivable for the government to compete with such service delivery is to reduce production cost which primarily means a reduction in employment overheads. This is directly in contradiction to the theory of full employment [Sen. 2001].

As argued above, it is also the case that many countries which are influence by neo-communist ways of thinking, seek to protect the labour force by whatever means necessary.

Many of the governments of these countries enjoy close working relationships with the trade union movements that exist within their particular countries. This is owing to the fact that organised labour in many countries gave rise to revolutionary political parties which helped do away with anti-colonial and oppressive forces, e.g. COSATU and the ANC [Gumede. 2007]. It is not surprising that these governments are especially protective of workers. These workers also happen to form these governments’ support base. It interesting to note is that most economists argue that the rigidity of the legislation that governs employment is too inflexible and that it scares employers from employing needed staff for fear of the bureaucracy and its incessant desire to tie employers down with legal requirements for hiring and firing [Gumede. 2007]. What is interesting to note is that this well intentioned piece of legislation that is aimed at protecting workers from being taken advantage of should be seen as a hindrance to solving the unemployment problem of this country. Ironically the very legislation that seeks to protect labour forces is exactly the thing that threatens it [Sen. 2001].

This in turn hampers economic growth where labour may be the comparative advantage of that country.

The effects of a comparative advantage are two-fold.

Firstly it means that the country, with the money that it will be able to generate from its comparative advantage, has the opportunity to invest this money into new industries that we may be among the world leaders in, but not the outright leaders. Diversification is seeing as a way of counteracting dependence on the product for which we may have a comparative advantage [Sen. 2001]. Such areas that we may seek to develop various other industries such as wine production, platinum mining, sugar cane production. It all depends on the circumstances of the country concerned. The effects of this means that the employment opportunities for a country are increased and that as we abandon industries that are not as profitable as these ones may be, we lose no workers and simply transfer (and develop) their skills so as to be compatible with other, more advantageous sectors. This is also essential as we use up our stock of natural resources.

Secondly it means that the money that we generate can be used to better social spending and education programmes. Especially in developing countries where the unemployment rate is as high as it is and the inability of getting people into work is prevalent, people falling through the cracks is almost a daily activity. An increased social spending budget will ensure that these people are supported where they may needed and if attached to the right conditions, such as working on the state’s behalf for the grant given, it may result in getting people back to work if not equipping them with skills that they may need to go into the private sector [Gumede. 2007].

South East Asian Tiger economies are the example which other LDCs should follow in that they sacrificed certain short-term political goals for the sake of long-term and rapidly achieved economic growth [Sen. 2001].

Therefore, whilst it is clear that there are circumstances which exist that continue to underdevelop LDCs, it is clear that LDCs themselves are in-part to blame for their lack of development. There are two lessons which the participants to the international system of trade can stand to benefit from. The first is that the developed world needs to be fairer in terms of the trade that they allow to happen within their economies. If they commit themselves to free trade, they must do so and accept the consequences thereof even if they are negative. The second is that governments must be able to stand up to the various and competing political interests that exist within their own countries and make the decisions that will best result in economic growth for themselves. If these two lessons are to be followed, then the international system of trade would if anything promote development rather than hinder it.

Why the Environment Needs to be Integrated into the State Security Agenda

2010-05-28T16:25:00.002+03:00

Oil politics may be defined as the institutional and economic competition for oil resources [Joyce. 2006].

The significance that this has for political analysis in the 21st century is how central oil – its production, consumption and value – has become to international politics [Cox, M. 2005]. However, in recent times, as this essay will argue, the most significant consideration that oil politics has given rise to, is the ways in which it has managed to influence the international security agenda. Owing to the fact that oil politics has influenced the international security agenda in various ways, this essay will focus specifically on how it has resulted in environmental problems and how these problems have become points of concern for international security [Scott, L. 2005].

As the economies of the world became more sophisticated, their dependency on oil increased [Sen. 2001]. This is owing to the fact that as these economies became more industrialized, the need for heavy machinery increased too. Such machinery was developed to operate on amongst other things, petroleum. Petroleum is a synthetic derivative of Brent Crude oil and is necessary for the proper functioning of internal-combustion engines which are present in among other things cars.

Even though oil is a natural resource, the effects that it has when consumed are significant to the environment. By the late 1960s, scientists had been bringing to the attention of the world, the negative effects of oil consumption and dependency [Greene. 2005]. The general trend that had been recognised was that oil dependency and consumption increased, so too did the environmental and subsequent security problems faced by the international community. These problems are primarily:
Climate change; and
Over-exploitation and environmental degradation.

In 2007, the United Nations (UN) had estimated that climate change had been responsible for all but one of the humanitarian aid cases brought before it in that year. It concluded that the risks posed by climate change are significant and require the immediate attention of the international community as a whole. In that same year, being more conscious of the environmental problems facing the world, the UN Security Council held its first debate on climate change and its implications for international security [Greene, O. 2005].

It concluded two things.

Firstly, it came to a working understanding of what climate change is. Climate change may be defined as the change in atmospheric temperature of the earth as a result of greenhouse gases. Greenhouse gases (also known as CFCs) are chemicals which are released into the atmosphere as a by-product of industrial processes. This is a result of the consumption of oil. These chemicals do not react with the oxygen present in and around the Earth’s surface. However, as they float upwards towards the Earth’s ozone layer, they react with the ultra-violet light present in the stratosphere and breakdown. These newly-formed-broken-down-chemicals then have two consequences. Firstly, these chemicals destroy actual ozone. For example, Greenpeace predicted that by the early 1980s, ozone levels had decreased by between 10 – 15% over much of continental Europe and North America [Little, R. 2005]. The result of this is that UV rays coming into the Earth’s atmosphere are more harsh in their intensity (the results of which will be discussed later in this essay). Secondly, the radiated heat of the Earth could not escape the Earth’s atmosphere owing to the fact that these CFC-subcompounds now formed an insulatory layer within the Earth’s surface and prevented them from escaping. Again, the results of this will be discussed later in this essay.

Secondly, it concluded that if left unattended, the security implications of climate change were immense and that immediate action needed to be taken. Heeding the call, the European Union’s (EU’s) European Council has produced, since that debate, many proposed programmes of joint action as to how to limit the security impact of climate change. This has been a common feature of international politics in recent years as the process has also been repeated by Inter-governmental Organisations such as the Nordic-African Ministers of Foreign Affairs Forum. The findings of the EU Intergovernmental Panel on Climate Change show that even if by 2050 emissions would be reduced to below half of 1990 levels, a temperature rise of up to 2ºC above pre-industrial levels will be difficult to avoid [High Representative on Climate Change and the European Commission. 2008]. Such an increase will pose serious security risks that would increase if warming continues. The Security Council also concluded that early investment in pre-emptive mitigation to avoid such scenarios, as well as ways to adapt to the unavoidable should go hand in hand with addressing the international security threats created by climate change [Christainsen, T. 2005].

Climate change is best understood to be a phenomenon which exacerbates existing socio-economic problems. The key challenge that this presents to governments of the world is that it makes governing for stable countries that much more difficult and pushes countries already on the breaking point of stability closer to complete ruin. These risks are not just of a humanitarian nature; they also include political and security risks.

This essay will focuses on some effects that climate change results in and how these impact on international security. They are:

Situations where there is an increased chance of fragility and radicalization. Climate change has the propensity to significantly increase instability in weak/failing states by severely testing the already limited capacity of said governments to respond effectively to unusual circumstances where they may need to make immediate responses. The inability of a government to meet the needs of its population normally are a cause for concern in and of itself. However, when one considers that coupled with the problems posed by climate change-induced hardship it could in all likelihood trigger intense frustration among domestic population groupings [High Representative on Climate Change and the European Commission. 2008].. This is significant owing to the fact that politically, radical/extremist groups could use such ineffectiveness to bolster its own performance in elections. The outcome of this may be that countries tend to become more radical in their outlook of the world as radical/extremist parties use a worsening global phenomenon to their advantage. We see that this has been a marginally successful situation where groups like Hamas and Hezbollah have used global situations to support their own skewed political objectives. This could in turn result in regional instability given that increased presence of radicals make other countries nervous and start pursuing policies of armament, etc.

As a result of 1 above, this could in turn result in immense pressure being placed on international governance structures. This is owing to the fact that climate change and the impact it has on everyone within the international community can and possibly will be used to fuel the politics of resentment between those most responsible for climate change (typically the developed world) and those most affected by it (typically the developing world) [Little, R. 2005]. The propensity for political tension to be increased along geographical lines is immense. However, the potential rift not only divides North and South but there could also be a South-South aspect particularly as the Chinese and Indian share of global emissions rises. The already burdened international security architecture will be put under increasing pressure.

Those parts of the populations of countries that already suffer from adverse socio-economic conditions are rendered more vulnerable to the effects of climate change [Chachioliades. 1981]. The possibility that this may result in climate change-induced migration is again a threat to the international security regime. This is owing to the fact that such migration may:

increase conflicts in transit and destination areas;
render the borders of countries that are seen to be less affected by climate change porous; and
necessitate domestic governments adopting increasingly xenophobic attitudes to migrants in an effort to limit benefits to their domestic populations only

Climate change will also inevitably result in a conflict over resources. A dramatic reduction of agriculturally viable land; a crippling shortage of water; increasingly decreasing food and fish stocks; flooding and prolonged droughts are already happening in many parts of the world. In North Africa and the Sahel, for example, increasing drought, water scarcity and land overuse will degrade soils and could lead to a loss of 75% of arable, rain-fed land climate change will alter rainfall patterns, owing to the changes it will precipitate in atmospheric pressure, and further reduce available freshwater by as much as 20 to 30% in certain regions [Brown, O and Crawford A. 2009]. A drop in agricultural productivity will or worsen, food-insecurity in least developed countries. It will also result in an unsustainable increase in food prices across the world owing to the desire of food producers to gain maximum profit for their scarce resources. A water shortage in particular has the potential to cause civil unrest and to lead to significant economic losses, even in robust economies.

5. Scientists have projected major changes to the landmass during this century resulting in loss of territory with the propensity to cause border disputes. Receding coastlines and submergence of large areas due to flooding could result in loss of territory, including entire countries such as small islands. Disputes over land and maritime borders are likely. A further dimension of competition for energy resources lies in potential conflict over resources in Polar regions which will become exploitable as a consequence of global warming. The rapid melting of the polar ice caps, in particular, the Arctic, is opening up new waterways and international trade routes. In addition, the increased accessibility of the enormous hydrocarbon resources in the Arctic region is changing the geo-strategic dynamics of the region with potential consequences for international stability and security interests. The resulting new strategic interests are illustrated by the recent planting of the Russian flag under the North Pole. The scramble for areas of land/sea that can provide the controller of such regions with prolonged/sustained energy supplies will undoubtedly intensify and in extreme cases result in all out war. Desertification could trigger a vicious circle of degradation, migration and conflicts over territory and borders that threatens the political stability of countries and regions. This is illustrated by a UN estimate that in drier areas of Latin America climate change will lead to salinisation and desertification of agricultural land and to decreasing productivity of important crops and livestock [High Representative on Climate Change and the European Commission. 2008]..

6. It has been estimated that a business as usual scenario in dealing with climate change could cost the world economy up to 20% of global GDP per year. Coastal zones are the home of about one fifth of the world’s population, a number set to rise in the years ahead. Mega-cities, with their supporting infrastructure, such as port facilities and oil refineries, are often located by the sea or in river deltas. Sea-level rise and the increase in the frequency and intensity of natural disasters, such as flooding, pose a serious threat to these regions and their economic prospects. For example, a rise in sea-levels may threaten the habitat of millions of people given that 40% of Asia's population (almost 2 billion) lives within 60km from the coastline.

The impact of climate change on international security is a problem that the international community has already identified and requires much attention from various stakeholders to combat it [Club de Madrid. 2008]. Even if progress is made in reducing the emissions of greenhouse gases, weather patterns have already changed, global temperatures have already risen and, above all, climate change is already being felt around the globe. The impact that oil politics, in the form of its contribution to climate change has had, cannot be negated. The security implications of this phenomenon are stark and require swift and co-ordinated international attention to effectively combat the time-bomb that the human race has set for itself [Heywood. 2007].

South Africa: Hegemon in Africa

2010-05-28T16:23:00.000+03:00

The Southern African Development Community (SADC) was established as the Southern African Development Coordination Conference (SADCC) in 1980 [http://www.sadc.int/index/browse/page/52]. The primary aim of this organization was to organize economic activity within the region so as to avoid economic dependence on Apartheid South Africa. This essay uses that primary aim as a starting point to discuss the following interrelated questions.

Firstly, it will examine the intention of the SADCC specifically looking at the unintended economic consequences that its formation had for the region.

Secondly it will examine the willingness of the SADCC to work with a democratic South Africa and how post-1994 South African incorporation into SADC has resulted in the region’s economic increased dependence on South Africa rather than its development.

Lastly it will examine the notion that South Africa has, if anything, fallen short of the reciprocal solidarity shown to it pre-1994 in its post-1994 economic dealings with the rest of the region.

It is important to note the following two assumptions that this essay makes.

Firstly, whilst SADC incorporates most Southern African countries it does not incorporate all of them. Countries such as Kenya, the Congo and Uganda share part of the geographic region but are not part of SADC. This is owing to three reasons: (a) these countries, especially Kenya, see themselves as being more affiliated to other regional structures (in the case of Kenya, East Africa) [Meredith. 2006]; (b) the benefit that they can derive from being part of SADC is limited in comparison to the benefit they can derive from being part of another regional structure where the chances of them being the relatively most powerful country within the bloc is increased [Mc Gowan P J and Ahwireng-Obeng F. 1998]; and (c) that these countries are possibly too far north to be considered part of the SADC structure. Whilst reasons (a) and (c) are minor justifications for the current geo-political makeup of Southern Africa, reason (b) offers a far better justification as to why some countries choose to remain unincorporated in any regional structure. Further, what one must bear in mind is that countries also choose not to be part of regional blocs if they feel that the regional hegemon poses too great a threat to their specific interests either in terms of economic competition in particular industries or through economic regulation that does not allow sufficient domestic control of certain aspects of policy. Whilst this is not the case with SADC – it is more characteristic of a more sophisticated regional bloc such the European Union where there is a central bank and single currency and where countries have limited ability to control price fluctuations and the like in a manner that would suit their specific national agendas [http://blogs.telegraph.co.uk/finance/ambroseevans pritchard/ 10000247/ europe_swings_right_as_depression_deepens] – it is nonetheless a consideration that must be borne in mind.

Secondly, whilst this essay will occasionally refer to foreign investment and trans-African economic interaction, for the purposes of this essay such trade will be treated as static. This is for the reason that whilst it may be an important comparison to note the differing trends in investment income to countries, this essay will attempt to establish that South Africa is the hegemon in the region, it would be unfair to compare South Africa’s investment capabilities with a country that is extra-territorial to this region and is more economically advanced than itself [Mc Gowan P J and Ahwireng-Obeng F. 1998]. Interestingly, and this applies largely to Africa as a whole, such countries are usually from the developed north (such as the EU or the USA) or from the emerging superpower countries (India and China).

As this essay has already indicated, the formation of the SADCC was prompted by the solidarity of the newly independent African states with the oppressed masses of South Africa. Being fully cognizant that their continued trade with the South African government allowed the illegitimate Apartheid regime longevity acted as an incentive to stop such activity. The logic behind such a policy was two-fold.

Firstly, by preventing the Apartheid regime from accessing trading markets, SADCC hoped that the adverse economic effects created by such a policy would allow it leverage to get the Apartheid government to rethink its stance on the treatment – substantively and adjectively – of indigenous (and other) African people [Pallotti. 2004]. The reason for other African states’ keen involvement in the plight of the oppressed drew impetus from three sources. The first and most obvious is the shared history of racial subjugation. The second is the effective lobbying programme undertaken by the African National Congress (ANC) whilst underground and present in neighbouring African states. The third, and most clinical analysis of the reasons for African support of the ANC and other liberation movements is the benefit they could stand to gain from a newly elected government that owed part of its successes of democracy to them. This last aspect is explained more below.

Secondly, the region must have been aware of the fact that their continued reliance on South Africa left them vulnerable on three fronts. Firstly, it left them reliable on a government whose policies they could not morally support. In the post-independence euphoria, domestic politics in many of South Africa’s neighbours was a fractious affair – relying or in any way supporting a regime like the one in South Africa was virtually handing away power to their opponents. Secondly, the terms of trade that neighbouring states were forced to accept were far from fair. The more they could support agitators meant the greater chance of regime change being effected in South Africa was. This in turn meant that these countries would be able to renegotiate the terms of trade that they were subject to and possibly derive greater benefit than they had under that dispensation. Thirdly, if South Africa had broken out into civil war, as was increasingly becoming a reality, the only country with which the region could trade and depend upon would have disintegrated. The consequences of which being that the already deplorable socio-economic conditions that existed in their respective societies would have worsened.

Whilst some may correctly argue that the role which solidarity played and continues to play in the region cannot be undermined as the shared experiences of colonial and minority rule by African peoples has left an indelible mark on those who became and who have become responsible for the liberation of the masses [Meredith. 2006] the economic reality with which they were faced meant that any isolationist policy targeted at South Africa would be ineffective. This is for two reasons.

Firstly, the southern African region was part of the larger proxy war that was being conducted by the Western and Eastern powers during the Cold War. This War which never involved actual military conflict between the primary actors in it, resulted in a scramble for influence and power that was exercised throughout the world, particularly in newly independent states. The liberation movements of these states often found that help was readily available to them from the West and the East provided that they ensured the dominance of Capitalism or Communism depending on whom they got their funding from. This funding was particularly important to liberation movements in power so that they could give rise to the macro-economic polices which they hoped would give rise to their development; and for those liberation movements still attempting to take power, funding without which they would have not been able to carry out their straggles for independence. In Southern Africa in particular, with Communism and the East increasingly becoming the dominant ideology of the region, the Apartheid South African government was able to outlive its expiration date as frantic Western powers sought to stave off any attempts to deprive the regime of funding given that it was viewed as the last bastion of Capitalism. This is important not only because it allowed the South African state to supplement its potential loss of income form neighbouring African states with access to money from far richer countries; but also for the reason that it was on the winning side. Communism and its stubborn existence was short-lived and post-1989 many countries that depended upon the Kremlin for its existence were left in economically precarious situations as the USSR and Communism crumbled. Communism, whilst allowing for egalitarian pretensions to pervade its policy failed to better the socio-economic conditions of the people that it was supposed to benefit meaning that even whilst it was supported by the USSR it was unable to overcome its economic problems which meant that life was still difficult for citizens in Communist-run states. This meant that economic conditions in Southern African countries were terrible and many of them turned to South Africa – despite their membership of SADCC – for survival.

Secondly, as the region quickly came to realize, trade with South Africa was more valuable to them than it was to South Africa itself. This is owing to the fact that the region was largely dependent on South Africa and its businesses to provide the goods and services it needed and which it could not provide itself. This is owing to the following reasons. Firstly, the South African government was able to keep a relatively firm hold on economic policy and regulate its domestic market so that it would be able to sustain itself. Other African countries were unable to achieve this for the reason that they had little capacity (and, for as long as they were dependent on South Africa, incentive) to support themselves economically. This is especially the case where the start-up cost on industry too expensive for private capital (with little or no profit retunes) and would have swallowed up too much public money which the ruling-elites of these countries preferred to keep for themselves [Sen. 2001]. Secondly owing to the prominence of Communist policies meant that in many of these states, the government was the main actor in the economy and was expected to create mass employment and national economic growth. However with the prevalence of globalization and the international acceptance of Capitalist run economies, particularly after the end of the Cold War, African states have fallen far behind as they have little capacity amongst potential private business to fulfill the weaknesses in domestic their markets. Bad governance as alluded to already merely compounds this problem as there is little ability for the government to create the necessary skills to galvanize the local populations to exploit the economic opportunities that exist. This is mostly owing to the fact that the greater the Human Development Index is of people of these countries, the greater chance there is for these illegitimate political regimes to face some sort of threat to their stranglehold on power.

A hegemon is defined as being a single leader or power that is able to influence either directly or indirectly the course of action that others within a specific locality take [Joyce. 2006]. We see that whilst South Africa was unable to do this directly during the Apartheid years, it was able to do this indirectly owing to the fact that continued trade with South Africa by other countries within the region strengthened its dominance over the region [Heywood. 2007].

Interestingly, the continued economic relations of South Africa with the rest of the region provided the background for the ANC to regroup after having been banned in the 1960s before it decided to come back to South Africa and conduct Operation Vula in the 1980s. However post-1994 with South Africa no longer being isolated by the rest of the region, we find that the hegemonic status that South Africa was able to nominally achieve during the years of Apartheid was cemented. This is for four reasons.

Firstly, the relative strength of the South African economy increased whilst its neighbours weakened. This is the case despite South Africa’s weakened economy as the cost of Apartheid spiraled – the international community was more than happy to supply South Africa with much needed income through international loans and the presence of new companies [Sen. 2001].

Secondly, South Africa had been able to develop its structural and infrastructural advantage over the rest of the region [Sen. 2001]. The fact that South Africa accounts for most of Africa’s shipping, road and rail trade means that its infrastructure was in far better condition than was the services its neigbours could offer which meant that upon being reintegrated into the international community trade could continue apace.

Thirdly, even though the South African economy underwent severe strain during the Aparthied years, the South African economy was far more ‘normal’ than its regional counterparts were. This meant that whilst other countries were forced to submit to structural adjustment programmes and start implementing initiatives to try and stimulate the private sector, South Africa had years of experience that it could use now once integrated into the region. This primarily manifested itself in South African companies being able to identify and aggressively pursue expansion programmes which allowed them to access new markets which they saw as new sources of profit [Lewis. 2001].

Lastly, South Africa’s political miracle was seen by the international community in a favorable light [Olivier. 2002]. Unlike other countries in the region which were failing to overcome the varying political challenges which each of them faced, South Africa was able to overcome the racial segregation which had characterized it for the previous 350 years relatively peacefully. This is characterized by the crises in Angola and Zimbabwe; both of which have contributed to mismanagement of the economy and uneasy investors diverting their much-needed funds elsewhere. Accordingly, as already alluded to in this essay, South Africa was able to receive greater international aid and investment one it was welcomed back into the fold after facing years of isolation owing to Apartheid. If anything, the flow of investment into South Africa from the international community (excluding Southern Africa and Africa) was similar to the outflow of capital from South Africa into Southern Africa and the rest of the continent.

However, there are other factors which must be taken into account when assessing why South Africa is Southern Africa’s hegemon. These are reasons which are located within the private and public sphere of South Africa’s political-economy.

Firstly, it is natural that South Africa’s economic power would expand into the rest of the region. This is owing to the fact that upon coming into power, the ANC was faced with the burden of transforming the country’s economic landscape into a situation that was similar to the political miracle which it had achieved. It went about this task by attempting to create an African middle-class which it has done with some success [Gumede. 2007]. However, despite the failings of such a policy the obvious result is that with new capital having been created, and the South African market only being able to support a certain degree of profitable investment without becoming saturated; it would only be a matter of time until South African companies – either new (black) ccompanies with capital muscle to flex in its ambition to gain wealth or old (white Apartheid grandee) companies seeking to retain levels of profitability as it was squeezed out of the South African market by newcomers – expanded into the rest of the region. This is especially the case where the government supported such initiatives through establishing diplomatic relations with neighbouring countries so as to create suitable environments for investment and providing local companies with economic incentives to exploit such opportunities which could contribute to the government’s political objectives of solving the redistribution and employment problem. The latter would be solved as South Africa’s regional neighbours are consumers of commodities which South Africa has relative comparative advantages in and are responsible for high intensity employment such as in the textile industry. Its neighbours are unable to produce such commodities despite the cheap source of labour owing to governance and capacity issues.

Secondly, South Africa is able to exploit its dual trading relationship with the rest of the world [Edwards. 2005]. Whilst the developed North demand precious metals and other minerals in which South Africa has a comparative advantage, it is difficult for South African companies to export its own labour intensive products – such as textiles – into European markets for example [Fedderke and Vaze. 1998]. This is owing to the fact that these industries are usually responsible for larges-scale employment and are fiercely protected abroad. Further, even if South African companies were allowed to penetrate developed markets they face competition from other developing countries such as China and India to dominate developed markets. However, the income generated by exporting minerals to the developed North allows the income earned to be used strategically to develop the industries in which we do not have a comparative advantage. Indeed, comparative advantage advocates argue that when a country properly pursues its comparative advantage it is able to: (a) specialize in the production of that commodity thus allowing it to derive the highest profit for the lowest cost and (b) diversify in terms of developing subsidiary and other industries that may be of strategic importance. For South Africa, this means developing our consumable commodities industries as they are in high demand in the rest of the region [Mabugu and Chitiga. 2009]. The positive offshoot of this policy would be: (a) allowing these industries to dominate market share and earning in the rest of the region – whilst the region may not be as valuable as the international market, the region allows South African companies to profit relatively higher rather than face high start-up costs and competition from other countries for a lower profit; (b) allows South African companies to use these markets as an opportunity to research and develop its methods so that when it reaches levels of allocative and productive efficiency it is able to expand into the developed North at optimal operation rates; and (c) that such expansion contributes to the achievement of South Africa’s own goals of creating a middle-class and reducing unemployment. The impetus for South African companies to expand into these markets rests on the fact that they face less competition; it would cost less for them to start-up in these markets and these markets are unable to sustain themselves.

Thirdly, even if these countries were able to sustain themselves, the region is so dependent upon South African commerce that it results in unfair terms of trade manifesting themselves which regional neighbours are unable to renegotiate [Habib, Daniel and Southall. 2003]. This is owing to the fact that the opportunity cost of challenging South African industry within a specific market runs the risk of other South Africa companies being dissuaded from investing in it if that market is then deemed to be too uncompetitive. This in actual fact may be the case with cheap products that require labour-intensity as many Southern African countries do not protect their labourers with the same rigidity that the South African Constitution does.

Thus, even though South Africa (read the ANC) was shown solidarity during its resistance to oppressive rule, it has fallen far short of the reciprocal (moral) duty it owes its neigbours. In true realist fashion, the government has directly and indirectly pursued polices which are in the national interest at the expense of its neighbours [Freeman. 2005]. Any obligation that it did have has long been forgone as South Africa chooses to negotiate muoltilateral agreements with single-minded determination that is to its own benefit and not the rest of the region’s. Further, it cannot be challenged owing to its hegemonic status within the region. If anything, South African companies have contributed greatly to South Africa’s ascendance to being the hegemon of the south.

Gender Activist? Hmmm... Somewhat.

2010-05-28T16:11:00.000+03:00

This essay will examine the motivation for Andrea Dworkin’s call for a “twenty-four-hour truce in which no rape is committed” [Dworkin. 1984]. In doing so, it will question the validity of some of the claims on which her call is based. It will then attempt to establish the relationship between the causes of rape as identified by her speech and the need for an integrative justice system combining new and traditional approaches to domestic violence [Hargovan. 2005]. This essay will attempt to illustrate that domestic violence is a by-product of the wider problem of gendered-violence and by doing so it will critically examine the judgment delivered by Mr Justice Van de Merwe in the case S v Zuma and will illustrate why these reforms are necessary.

Even though Andrea Dworkin’s call for a “twenty-four-hour truce in which no rape is committed” [Dworkin. 1984] was made in almost twenty years ago, the primary contention of her speech – that women are subjugated to worsening treatment by men – remains relevant to this day. This is owing to the fact that the process of female subjugation cannot be confined to a limited time period and the reaction to which must be treated as an ongoing attempt to liberate women [Kennedy. 2005]. Incidentally, the struggle for equality between men and women is not merely about a gender balance in any particular fora but is about the way in which a patriarchal society learns to deal with other groups within that society including but not limited to women, homosexuals, racial minorities and the like [De La Rey and Friedman. 1996]. This is an important point to remember as feminists or anyone articulating for the empowerment and emancipation of women are delegitimized through the claim that they are inherently sexist. Rather, as these feminists correctly argue, their articulation forms part of a wider critique on the hegemonic structure of society and the integration of marginal groups into it [Connell. 2002].

Dworkin’s call is based on five main premises.

Firstly, she contends that rape, the gendered-crime on which she focuses in this speech, is a by-product of a wider context of institutionalised patriarchy [Dworkin. 1984]. It is important to understand this as it frames the later claims which she makes. The particular importance of this claim however is that it illustrates the convergence of feminists in their thinking that the problem of female discrimination is not a superficial or surface issue where women are merely excluded from doing certain things. Rather it speaks to the systematic and engrained manner in which the concept of male superiority is perpetuated in society [Connell. 2002]. This can happen either explicitly or unwittingly. Either way, the result is that a restrictive environment is created in which women – and other minority or marginal groups – are limited in their progress and success. Accordingly, given the oppressive nature of this system, women are vulnerable to abuse at any given time.

Secondly, the assertion is made that whilst men may understand the intellectual and ideological objections to the differential treatment of women, men on the whole are unwilling to show solidarity with the struggle of women where it necessitates them forgoing some of the privilege that they enjoy from an oppressive system [Dworkin. 1984]. This is important as it shows that whilst men may have good intentions, the fact that they are slow to act by (specifically) taking political action against such discrimination, men are unable to truly assist with their cause. This is an indictment on all men who irrespective of their misogynistic or pro-equality beliefs.

Thirdly, and in relation to the first contention, the power dynamics which permeate society are inherently male [Dworkin. 1984]. This is owing to three factors:
(a) the overt proliferation of violence as a legitimate means of discourse has male overtones because it used as a state-sanctioned method of order and control [Kennedy. 2005]. The argument is that through the state’s response of violence to disorder, and a failure to seek alternate methods of solving problems – even where criminals have been detained and the threat of force is used to coerce them into behaving, makes it relatively normal and by so doing, seemingly empowers men – who enjoy a monopoly on the physical power needed to be physically violent – to use force to subjugate women. This is evident by the state of aggressive militarism pursued by nation-states today [Dworkin. 1984];
(b) men enjoy the monopoly on economic power within society [Connell. 2002]. This is as a result of societal and institutional responses to women in the workplace. Society, has over time, been socially conditioned to believe that a woman’s place is in the home providing support to her husband, who should be the breadwinner, and her family, to whom she must devote herself. She faces stigma – which deters her from entering the workplace – in two ways: firstly, she would find it difficult to find employment – the absence of women makes mostly male employers hesitant to employ females; secondly, she would be hesitant to leave the home from fear of incurring society’s disapproval. Whilst the latter may seem superficial, the effect that this may have on the social standing of the women concerned, it cannot be underestimated [Kennedy. 2005]. This is evident in the proliferation of pornography (and prostitution) in modern society [Dworkin. 1984]. The reason for this is that women are economically subjugated and are forced into the situation where they have to ‘accept’ their objectification for the purposes of survival. This is pertinent as it is reflective of the situation in wider society. Women are unable in many instances to support themselves and are forced to be second-class citizens dependent on men. The institutional response of hesitancy to employ them creates this. Further, even if women are able to gain employment, the attitude that exists within these institutions is distinctly male. Accordingly, they are stripped of their femininity and are forced to conform to the hegemonic culture of these institutions – lest they be even more isolated - and inevitably end up discrimination against women themselves; and
(c) heterosexual men are particularly disparaging and discriminatory towards homosexual men [Dworkin. 1984]. Whilst this is not specifically related to the subjugation of women, it is indicative of the way that the hegemonic ‘class’ deals with different groups within society. Dworkin argues that this is an attempt to preserve male power. The prohibition of (male) homosexuality preserves male power as it disallows men – who, being powerful beings, as she argues, are capable of various acts of inhumanity [Dworkin, 1984] – from delegitimating the power of other men. It keeps women as the object of sexual desire and thus allows them to be subjugated. Allowing men to sexually desire other men would allow heterosexual men to be equated with women and objectified by other (homosexual) men. By doing so it would challenge the hegemonic dominance of (heterosexual) men – which again as she argues, is something that men systematically seek to prevent.

Fourthly, the politics of the (religious) Right is centered on the idea of traditional family values [Dworkin. 1984]. Whilst these traditional family values may be presented in a way that speaks to solving the social ills of the broken family and promiscuity, the real effect of this political ideology is the subjugation of women [Dworkin. 1984]. This is owing to the fact that the basis of these beliefs is religious doctrine. However, religious doctrine is a societal institution that in itself entrenches the supremacy of men. This is owing to the fact that modern religion, from Christianity through to Islam, is a societal construction that has been used to concentrate political, economic and social power in a small clique of men. Accordingly, for any political programme of action to be based on these religious beliefs the effect must be the continuous subjugation of women [Connell. 1994].

Lastly, Dworkin contends that the normative principle of equality is not been effect to by the contemporary political regimes that supposedly uphold it [Dworkin. 1984]. The problem with this is that equality is not true equality in the sense that it had definite and accessible outcomes for those whom it is supposed to benefit. Essentially she contends that male politicians who hold a position of predominance in the structure of society, as illustrated above, pay lip service to the tenets of equality whilst actually do not properly support it as it would eventually result in their loss of power. Whilst the advent of democracy may have given men and women equality on paper it is time that society start acting to ensure that the equality of the Constitution start being lived by us all [Essed. 2005].

These factors all contribute, either directly or indirectly, to the proliferation of rape in our societies [Dworkin. 1984]. Rape typifies the underlying power dynamics of male-female relations and is pertinent in two ways. Firstly it is significant in terms of how men feel entitled to sexual access even when the person they intend on having sex does not consent [Dworkin. 1984]. Secondly, it allows for the manifestation of injustice alas the criminal justice system is limited in its ability to have a positive effect on the lives of those who suffer the injustices of crime.

Whilst Dworkin’s arguments have some merit there are three main objections that must be registered to her work.

Firstly, she often generalizes about the willingness of men to participate in changing the system which she so opposes. By saying that all men are guilty of benefiting from the system and not wanting to change it due to a loss of benefits creates the following problems:
1. it ignores the contribution of men who have fought for equality and specifically for women empowerment [Moore. 1994], if anything it gives legitimacy to the criticism that feminism and its articulations, irrespective of how correct they may be, are sexist and thus will result in greater inequality;
2. it fails to recognise that change is not as easy as she makes it seem. Indeed the concessions on which her speech is based on is that (a) this system has existed for such a long time, (b) it is entrenched within society and even manages to distort the beliefs of women who manage to get assimilated into the system and (c) it makes the incorrect assertion like the Africanists did during the Apartheid Struggle, that merely because they benefit from the system that they do not want it to change. Indeed many white people advocated for the deconstruction of the racially oppressive Apartheid state at great cost to them personally and so on. To disregard their contribution is to disregard the hardship that they themselves underwent to give voice to the struggle when it had not proponents to carry it on. If anything, by being part of the system – which incidentally these men did not choose – allows them to speak directly to power when the persons suffering would not be able to do so [Leon. 2008].
3. she at times demonizes men which Is counter-productive to the debate on gender equality. Most academics believe that this discussion cannot happen in isolation as it requires the buy-in from men, being part of the system, and women, who want to access it [Kennedy. 2005].

These problems aside however, Dworkin’s call highlights the institutionalised problems that we face. Like rape, domestic violence is another common crime in South Africa that requires special attention [Hargovan. 2005]. This is owing to the fact that it encapsulates power-dynamics perfectly in relation to all facets of life. Indeed it also requires special attention as given the nature of the crime, it requires it happens in the private domain. The response of certain quarters, that domestic violence is not really a crime given that it happens in a private sphere and that the interference of the state is an erosion of the protection of the right to violence must fall on two grounds. Firstly, it must fall as irrespective of whether it happens in a public or private sphere it happens in violation of the constitutional protections that people are given. Whilst privacy may be one such protection, it was not intended to be absolute where it would allow the development of further injustice to occur [Kennedy. 2005]. Secondly, it must fall on the premise that the government, by means of the social contract theory, has the obligation and duty to protect its citizens from harm irrespective of where such harm happens if that citizen respects and is subject to that government’s authority [Heywood. 2007].

In her 2005 article on Restorative Justice (RJ), Hargovan makes several contentions.

Firstly, that the present Criminal Justice system requires reforms owing to the fact that it fails to meet the challenges of domestic violence. The perpetuation of a cycle of force through traditional sentencing processes merely hardens criminals to be sensitive enough to understand the particular harm which their crime has caused [Kennedy. 2005] and leaves the victim feeling uncatered for in the sense that even though the perpetrator has committed against the crime against them (a very personal thing), at no stage in the trial process does the victim get to express his/her dismay – a process that is vital to the healing process. This is owing to the fact that this system, RJ, caters to the victim’s need to be empowered especially after suffering a crime that in all likelihood gives them a feeling of helplessness. The crime is prosecuted by the state (which is a removed and impersonal body). This then creates the situation where the victim may feel that he or she personally has bnot been vindicated even though the perpetrator of the crime may be arrested. This can be achieved through Victim Impact Statements and so on [Hargovan. 2005]. The importance of this is that the balance and impartiality of the Criminal Justice system is maintained.

Secondly, the system of RJ unlike the traditional sentencing system does not allow for the development of the perpetrators of crime [Hargovan. 2005]. Criminals are merely put into jail where, due to financial constraints, they are forced to suffer even worse treatment. Whilst some may think this to be justified, some argue that this compounds the psychological problems of the criminal in relation to the apparently male-centric power-dynamic that exists. The perception that is created is that men are supreme in society [Dworkin. 1984] and when they act with that attitude in mind and are subsequently punished, the present system does not seek to mend the disjoint between their perceptions and reality [Kennedy. 2005]. Further, suffering the squalor of prison in turn victimises criminals and runs the danger of giving their crime legitimacy. The downfall of this is when they are released they are not rehabilitated and are likely to re-offend. This is effectively neuters the point of the criminal justice system which attempts to allow for retribution for the crime committed, rehabilitation of the criminal for their deviancy and reintegration of the criminal into society so that they may lead as normal a life as possible.

Hargovan believes that if RJ was integrated into our existing criminal justice system that this would result in the decrease of domestic violence and contribute to the decreasing of gender based violence in our society.

However, there are six objections to her thesis that her article fails to address:
1. that such a system is reliant upon resources. Whilst governments of the world pump millions of currency units into law enforcement, the pressures that they face from their electorates means that instead of putting more money into the rehabilitation of criminals, they put more money into catching them – governments do not want to appear as being soft on crime [Kennedy. 2005]. Whilst this means that the criminals may re-offend, these efforts are usually coupled with efforts to increase sentencing periods which means that criminals do not get the opportunity to do so. If they do however, owing to the emphasis placed on catching criminals they are likely to get caught again. Where resources are constrained, as they are in South Africa, governments prefer to lock people away as opposed to holding their hands and trying to make them feel better about themselves [Kenndy. 2005]. The challenge that Hargovan faces is to break this thinking system of governments;
2. the problem of the type of message that is being sent to society. This is closely linked to the point above in that where such violent crimes are being committed the government wants to react in a way that is proportional to the seriousness of the offence. Failure to do so, as indicated above, may result in electoral losses for the party in power or worse it may result in an increase in the particular offence if the approach used does not act as a deterrent [Hargovan. 2005];
3. the fact that victims may not want to pursue this process if they are empowered by being given the choice to do so, especially in circumstances where they are dependent upon their abusers, as they often are [Dworkin. 1984]. If the state were not to prosecute the person for this crime but instead the victim were allowed to decide whether that person is ‘punished’ it could result in many more offenders walking free because of their economic dominance. Whilst Hargovan suggests that certain people are treated differently, this is dealt with in more detail below, she then runs the risk of creaing an inequality in the law between the perpetrators of crime in violation of legal traditions and actual, entrenched legal principles – such as the right to equality. Further, even if the victim did want to have the crime discussed in the RJ system – it ignores the secondary trauma that the victim may have to suffer in discussing the crime again. The state-led process allows for the victim to be isolated from that possibility and allows him/her to be involved only to a reasonable degree;
4. the situation where RJ is introduced and it creates an inequality between alleged perpetrators. Whilst equality like privacy may not be an absolute right to hide behind [Kenndey. 2005] the fact that differential treatment may be a ground through which an alleged criminal may escape liability does not seem worth the risk. Further, the implementation of this system may result in two forms of justice developing – one less punitive (that is RJ) and one that is more punitive (i.e. the traditional approach). This is problematic as it could result in the unfair treatment of citizens which is a further inequality that RJ seeks to overcome;
5. the problem that it allows the government to abdicate its responsibility. By allowing victims a great deal of say as to whether or not perpetrators are prosecuted or not, the government by default is allowed to abdicate its fundamental responsibility to protect the citizen according to the tenets of the social contract theory which state that the citizen surrenders its right of autonomy to the state in exchange for state protection even in situations where the citizen may not want or seek that protection directly but where the crime committed against the citizen that it offends the nature of the society itself [Heywood. 2007]. The latter point justifies why, even where the victim requires protection, why it is the state and not the victim that is directly allowed to prosecute the crime – society has an interest to see that justice is done as part of the way in which that society functions but not a direct interest to see action taken against them as a victim does which may give way to revenge [Kennedy. 2005]. This obviously is ignoring the fact that the victim may not have the capacity to prosecute the crime to the degree of proof that is required fro a conviction;
6. the constraints of domestic violence being a less-policebale crime owing to the fact that it is usually perpetrated in the private arena [Dworkin. 1984].

However, Hargovan’s article and the objections to it, also highlight the primary contention with the judgment – and prevailing attitudes within the judiciary in relation to gender-based violence – delivered by Mr Justice Van der Merwe in the matter S v Zuma. Whilst this essay will not dispute the reasoning of the judgment, it will however object to the manner in which it is presented.

This objection is based upon two interrelated things
Firstly, the use of the sexual history of the victim by the defence in an effort to blacken her credibility [Kenndey. 2005]. Whilst it may be relevant to the extent that it shows whether or not the victim has been previously sexually active, the illustration of, or rather the insinuation that, the victim is promiscuous if faulty on three grounds. Firstly, there is no real method of measuring what a normal sexual life is in terms of the number of partners that one has. Secondly, even if a woman has a high number of partners, the mere fact that she does is no justification for her to be raped nor can it be used as an attempt to say that she is ‘loose’ [Dworkin. 1984] and thus deserving of her treatment. This notion entrenches the idea that women are not allowed to enjoy sex whilst men are, further perpetuation the inequality that already abounds. Thirdly, it feeds into the stereotypes that exist in society and further prop them up especially where they are seemingly accepted by the Judge hearing the matter. This is especially the case in law where the judgment in a matter becomes part of the institutional memory of the law as part of society.

Secondly, the contention between the rights of the victim to be treated with dignity versus the right to the victim to have a fair trail. This is owing to the fact that our legal system operates on the presumption that an alleged criminal is innocent until proven guilty. Further, our legal system predicates that anyone convicted of a crime is convicted on a standard of proof that cannot be doubted. Whilst this is necessary to ensure that balance and fairness are prevalent in our legal affairs and that we are all equal before the law, the judiciary it would seem need to be sensitized to the particular subjugation of (rape) victims [Kennedy. 2005]. Failure to do so leaves them to far removed from the realities of the horrors that people who come before them face and as such they are unable to understand why the tactics of defence lawyers may particularly distress a victim which in fact limits their ability to access justice. Indeed in the spirited defence of their client’s good name and right to liberty, many of the tactics used by lawyers infringe upon the victims dignity and right to be treated equally.

In conclusion, the analysis that this essay provides is simple. The systems that are used, whether explicitly or inadvertently, to oppress women are engrained into the very fabric of society. However the solution to this problem itself requires that all of us do not become engaged in a gendered debate on who suffers more or who suffers less. Rather it requires an approach that allows us to see each other as individuals who should be afforded the degree of protection and equality that we ourselves require. It requires that we act as activists challenge and breakdown the prejudices that exist in our society so that one day we may give effect to the call for a “twenty-four-hour truce in which no rape is committed” [Dworkin. 1984].

Judicial Independence in South Africa: Why the Superior Courts Bill Must Go!

2010-05-28T15:57:00.001+03:00

Introduction

The purpose of this essay is to consider the concept of judicial independence with particular emphasis on its advantages and disadvantages. It will establish that judicial independence is an important doctrine that needs to be adhered to, especially in the face of an increasingly powerful executive.[1] After establishing this, this essay will specifically examine sections 7 and 8 Superior Courts Bill by contrasting the effects of these sections with the concept of judicial independence as articulated by this essay. It will speak to the dubious intentions of this piece of legislation and attempt to demonstrate how it may undermine the very thing it purports to protect. In doing so it will question whether there should be an inevitable tension between the judiciary and the executive and what the possible advantages and disadvantages are thereof. It will conclude by arguing that judicial independence must be protected given the fundamental nature that the judiciary has, as an organ of state, of giving effect to the spirit of the Constitution.

The Importance of Judicial Independence

Judicial independence can be understood in two ways.

Firstly, it can mean that the judiciary is created sufficiently independent from the influence of the other branches of state, namely the executive and the legislature. This is also referred to as institutional independence. This concept includes, but is not limited to, (a) involving the executive and the legislature in the appointment of Judges but curtailing their discretionary powers of appointment by requiring exacting standards of Judicial officers (this limits the ability to appoint party-supporters to the Bench)[2]; (b) arduous procedures to remove Judges from office, once appointed, on specific grounds (e.g. a two-thirds majority vote of both Houses of Parliament in the UK – this ensures that Judges are free to apply the law without fear of favour) [3]; and (c) judges’ remuneration being fixed by legal instruments (this ensures that the executive cannot use its ability to alter Judges’ salaries as a coercive factor in bending the Judiciary to its will).[4]

In South Africa, the drafters of the Constitution sought to give effect to this high standard of integrity by constitutionally entrenching judicial independence.[5] Being fully aware of the damaging effect that the undermining of judicial independence can have on the stability of society as a whole, as exemplified by the Apartheid regime when in power, they sought to create a judiciary that could hold other organs of government to account but at the same time integrate them into a system that would not allow them to hold the other organs of state to ransom. The creation of the Judicial Service Commission as the body to primarily influence the selection of Judges – with its components coming from partisan and non-partisan backgrounds – is an example of the drafters’ triumph in attempting to give effect to such exacting standards of judicial independence.

Additionally, it can be understood to mean that the judiciary is created sufficiently independent from the public.[6] The reason for this is that organs of state, excluding the judiciary, face unique pressures that may sometimes lead to them exercising their power in ways that are not procedurally or substantively fair. An example of this is a government that does not want to raise taxes because if it does so, it runs the risk of becoming unpopular with the electorate and is in danger of losing the next election even though an increase in public spending, funded through raised taxes, is necessary. The judiciary must be created independent from public opinion so that in all its decisions it can uphold the rights of the parties to a matter before it[7] and not pay any regard to the public rebuke it may or may not face in respect of its decision. [8] The reason for this is to ensure that merely because a political party enjoys a majority in Parliament that it does not feel that it is entitled to change the Law without paying due regard to the rights of other people. [9]

Advantages of Judicial Independence

There are three primary advantages of judicial independence. Firstly, it allows for the creation of an organ of state that is empowered to ensure that all exercises of power – be they public or private – are upheld by the concept of the Rule of Law.[10] This is important as the Constitution would not be a document worth paying attention to if no organ of state was empowered to ensure that it was being enforced. Judicial independence allows the judiciary to do that without undue influence from other organs of state that it sometimes has to rule against. Secondly, it ensures that all people – including organs of state – are equal before the law. This allows the judiciary to be free from any biases that may exist which in turn ensures that the application of the law is consistent from case to case. Thirdly, it also ensures that power is not overly concentrated in a single entity of the government (usually the executive or the legislature) which is then able to circumvent being accountable to either another organ of state or the electorate in extreme circumstances. Thus judicial independence can be seen to strengthen democracy as it ensures that government fulfils its mandate and cannot escape some form of remonstration where it fails to do so.[11] In each of these cases, these advantages have overarching political, economic and social benefits to the society that respects the Rule of Law[12].

Disadvantages of Judicial Independence

There are two possible disadvantages to judicial independence. Firstly, there is the problem of the counter-majoritarian dilemma. This speaks to the situation where the judiciary, through a strict or unpopular interpretation of the Constitution is said to effectively disallow the ‘will of the majority’ to be given effect to by their elected representatives. A possible example of this is the ANC winning an election having campaigned on a ticket of disallowing homosexuality and attempting to pass legislation to that effect. If such a situation were to arise, given precedent, the judiciary is bound to declare such legislation unconstitutional and therefore inapplicable. In such a case the ANC would argue that such an exercise of judicial authority is counter-majoritarian in that it disallows the express will of the majority of the people – which is a fundamental tenet of democracy. Secondly, there is the problem of the democratic deficit. This is similar to the problem of counter-majoritariansim in that it highlights the problem with the judiciary in that they have no real sense of accountability to the elected structures of government.[13].

Each of these problems highlight the balancing act that the liberal democratic systems of government attempt to achieve between obeying the will of the majority as its source of legitimacy whilst at the same time being aware of the special protections that minorities need.[14] These critiques on judicial independence may be discounted through the following responses.

Firstly, the law as an institution may be affected by the changing morality of society, but must not be sacrificed at the feet of public opinion where such opinion would deprive a litigant before the Courts of relief despite being expressly entitled to that particular right.[15] If such a situation were to occur, the danger is that the law – given its inconsistent application – may deconstruct its own legitimacy. This may lead to the situation where, owing to its fickleness, the Rule of Law is abandoned and people take the law into their own hands. In a way, where the law fails to be reflective of an aggregation of the competing demands of the majority and the minority and rather seeks to unfairly benefit one at the expense of the other, it provides reasons for agitation and in extreme circumstances, revolution to occur.

Secondly, whilst Judges may not be directly elected[16], the appointment process that is used in South Africa is one that allows for the suitability and accountability of judicial officers to be of paramount importance. This then ensures that judicial officers themselves are subject to varying forms of scrutiny for their decisions but at the same time are protected from frivolous interference by other organs of state who may be afflicted by decisions of the judiciary that goes against it.

Thirdly, any advocate of the democratic-deficit critique equates being elected with somehow being more capable of upholding people’s rights irrespective of the irrational voting patterns of the electorate that allowed them to acquire public office. However, as this essay has argued above, the fact that judicial officers do not face the same motivations to act means that they are better suited to make decisions based on their merits as opposed to the spoils of office that they may lose if they do not act in a certain way. However, this (and the counter-majoritarian dilemma) is countered by the basic structure doctrine based on Indian Jurisprudence as was held in the case Kesavananda v State of Kerala.[17] The Indian Supreme Court held that the amending powers conferred to the national legislature did not extend to any amendment which would alter the basic structure of the Indian Constitution. [18] This means that the application of this doctrine must inherently be counter-majoritarian where the proposed amendments to the Constitution are purely based on the so-called ‘will of the people’ and where said amendments undermine the very tenets of the Constitution itself. This is especially the case where the Constitution is supreme and is entrenched to be such. Whilst it is important for the law to reflect the general will of the people the law itself, and the Courts empowered to protect it, must remain as far as possible neutral – and uninfluenced by the popular beliefs prevailing at the time – in the sense that it attempts to balance the rights of the majority and the rights of the minority especially in the case where the latter can easily be subjugated by the former. Whilst it is agreed that this doctrine will only be applied with the greatest circumspection and only in a situation where the intention of the legislature is to patently attempt to undermine the democratic nature of the Constitution this approach, as was referred to in the UDM case[19], must be given due consideration.

As such, we can hold that judicial independence is fundamental to the functioning of the modern, liberal-democratic state. [20]

Analysis of Sections 7 and 8 of the Superior Courts Bill

The intention of the Superior Courts Bill[21] (herein referred to as the Bill) is to bring the judiciary under greater administrative control of the Department of Justice and Constitutional Development. This is not necessarily a bad thing. Having an understanding of judicial independence is important as it determines the criteria against which an examination of this intention (as per s7 and s8 of the Bill) must occur and what the implications of these particular sections are, if promulgated, to the concept of judicial independence.

Section 7 of the Bill allows for the Minister of Justice and Constitutional Development (herein referred to as the Minister) to, appoint persons to the Constitutional Court, the Supreme Court of Appeal and the respective Provincial Divisions of the High Court. It will be the responsibility of these persons to it will be to administer the functioning and operation of these Courts. [22] This section also empowers the Minister to appoint the replacement of the person if they are unable to continue their duties by means of a way of way of absence or incapacity. [23] Further, said persons will be accountable to the Minister by virtue of their being part of the Public Service. [24]

Each of these allowances, taken in turn has significantly negative implications for the independence of the judiciary. In terms of appointment of persons to oversee the administrative affairs of the Courts, it is the Minister and not the respective head of Court that makes the appointment. This is owing to the fact that although the Bill mentions that the appointment must be made in consultation with the head of the Court, the legal definition of the concept of consultation is vague. Consultation is defined as ‘a conference at which advice is given or views are exchanged.’[25] This means that whilst the Minister can receive the views of the respective head of the Court, he/she is not bound by their views even where they may raise a serious objection on the matter at hand. [26] This means that a person who performs the important functions as Master of the Court may be disagreeable to the head of the particular Court in which they serve. The implication of which is that Justice may be sacrificed as a result of tensions between the judicial and administrative components of the Court.[27] Such a risk cannot be contemplated especially where the judiciary plays so vital a role in the functioning of society.

Additionally, the Minister may use his/her power of replacement in a similar manner to that raised by the first contention – namely that a person will be appointed that the head of Court and his/her colleagues do not find agreeable. This is especially alarming where the person initially appointed is more judicial-independence-minded than the Minister would have liked him to be. The replacement appointee may be nothing more than an attempt on the Minister’s part to consolidate his/her control over the judiciary.[28] Further, once the person is appointed to his position, and as if suggested by the contentions raise thus far, he/she is subject to the provisions that are applicable to the public service.[29] This means that if the Minister finds him/her to be to ‘pro-judicial-independence’ at the expense of executive control he/she may be dismissed.[30] Whilst merely being pro-judicial-independence is not a ground on which to be dismissed, this provision creates the incentive to keep these officers under particular scrutiny so as to possibly find a reason for dismissal. Whilst scrutiny in itself is not a bad thing we see that in this instance the powers afforded to the Minister by the Bill[31] are more invidious[32]. This is owing to the fact that administrative control now becomes the mechanism through which the executive can attempt to influence the way in which the judiciary makes decisions. Administration cannot be undermined as it encompasses the support services available to judges in the execution of their duties, which judges hear which matters and what degree of protection can be offered by the administrative services of the Courts if they properly act as a buffer against interference.

Section 8 of the Bill allows for the Minister to, inter alia, have direct control of the Courts and their budgets. Whilst public bodies need to financially accountable[33], as the contention above mentions, this could be done for invidious purposes. Further, as indicated above the Minister is only bound to consult with the head of the particular Court when making financial decisions.[34]

Each of these allowances, have significantly negative implications for the independence of the judiciary. Giving the Minster financial control over the judiciary and its expenditure may result in the judiciary losing out on much needed resources that are tied to the delivery of justice. The Minister may determine high spending rates (such as those associated with the cost of ordering blood tests, in loco inspections of crime scenes and the like) as being unnecessary. This in turn means that the burden would fall to the individual to protect their rights as enshrined by the Constitution. This opposed to the duty created for the judiciary by that same document.[35]

The idea behind making the state pay for the through investigation of matters of judicial notice is two-fold. In one instance it best affords the alleged perpetrator the opportunity to protect his liberty and have his name cleared without doubly punishing him (through putting him through a trial process and then making him have to pay for that process if it absolves him of responsibility or finds him guilty which is the real social debt that he has to pay). It also absolves the victim of a crime having to suffer twice in the sense that having already suffered a wrong i.e. the crime committed against them; they do not need to suffer again by having to pay to have their rights properly protected. Assuming this were allowed, by the time a judicial challenge to non-expenditure on the ground of expense had happened, the will for people to see justice done may have waned thus resulting in an apathetic attitude towards crime developing. These reasons ignore the obvious fact the fact that the state is in far better a financial situation to afford such costs.

This could also mean that less money is afforded to the state lawyers (such as legal aid) who appear on behalf of impoverished people, to whom the cost of litigation is a luxury, when said people have been wrongfully prejudiced by the state decide to challenge such unjust administrative action. The judiciary invariably in situations like these excoriates the executive for its failings which it may want to avoid at all costs – one of the methods to do so being to curtail the independence of the legal fraternity that a largess gives them.[36] Additionally, this allows the Minister to interfere in the operation of the Courts[37] as through the curtailing of the budget the Courts will have a limited ability to award litigants amount they feel appropriate for the impugning of their rights.[38] It also impugns any possible-litigants s33 rights[39] as it places an unnecessary burden on the Court to which it applies for relief[40] in that it would have to determine whether it would hear the matter not on the basis of legal merit but rather on the basis of how much it would cost the Court to hear the matter.

Should there be an inevitable tension between the Judiciary and the Executive?

Beyond the confines of this Bill, this question requires the contemplation of whether there is an inevitability for a degree of tension between the judiciary and the executive. As this essay will argue, such tension is predicated upon three things, namely (1) that said degree of tension will only exist in a system of government where there is a supreme Constitution and the judiciary is allowed to review the acts of the other branches of government but there is no reciprocal arrangement[41]; (2) that such a tension is to the benefit of the larger society[42]; and (3) that the tension is a manifestation of the separation of powers.[43]

Section 165(3) of the Constitution explicitly protects the Courts from the interference of external persons on its decision-making processes. This is owing to the fact that the Constitution is supreme and the Courts are empowered to give effect to its meaning whilst the other branches of state are bound by and subject to the authority of the Courts.[44] This means that even though the other branches of the state may be given more ‘electoral power’ they are not as powerful as the Courts[45] and are often thwarted by it.[46] Inherently this means that the government of the day may face difficulty in securing its electoral power at the next election if it is unable to fulfil its electoral promises.[47] This, if severe enough means that there will be tension between the judiciary and the executive.

However, for the reasons above and those to come, we can see that this tension is to the benefit of society. This can be summarised in the following way:

“the Court to issue a declaration of rights and that the doctrine of the separation of powers requires that the Court make no order which would have the effect of requiring the executive to pursue a particular policy, the Court acknowledged that ‘there are certain matters that are pre-eminently within the domain of one or other of the arms of government’, and that all branches of government ‘should be sensitive to and respect this separation. This does not mean, however, that Courts cannot or should not make orders that have an impact on policy.”[48]

This means that where the government through its incompetence or lack of care pursues an action that is detrimental to the same public that gives it its position of strength, can be held to account, despite its support, by the Courts who look after the interests of afflicted citizens.[49] This results to a greater net benefit to society when they comply with the order.[50]

Lastly, as already mentioned judicial independence is a manifestation of the separation of powers in that it prevents power from being concentrated in a single person or entity.[51]

Conclusion

Ironically it is with the words of a former Apartheid Justice Minister, Mr H J Coetsee, that I conclude this essay.

‘Our legal system cannot be outclassed ... There are attacks, incriminations and accusations that our judgments in law are not objective and independent . . . To say our courts are just and impartial is not saying much. The truth is that there are no courts anywhere in the world whose judges’ . . . integrity is higher than ours.’[52]

This essay has conclusively shown that judicial independence is a fundamentally important concept that needs to be implemented and protected in South Africa. It does not work for the government or against it. It works for what is right in the Law. This essay has shown that whilst prima facie the Superior Courts Bill may be an attempt to make the justice system more effective, in the hands of a power-hungry government it openly attempts to undermine the integrity of our Judges and the system of which they are part of. Sections 7 and 8 specifically fall short of the criteria established by this essay which form part of judicial independence. Further, this essay has argued that tension between the judiciary and the executive is by no means a bad thing and that where it exists it is to the benefit of society as a whole. Let this essay accordingly be treated as a call to arms by all those who love our Constitution, a sense of justice and our democracy – the Superior Courts Bill and the subversive encroachments on judicial independence, the very mechanism that could have averted Apartheid and now prevents a similar catastrophe from occurring, must be stopped at all costs.
[1] Corder, H. 2009. Judicial Authority in a Changing South Africa. University of Cape Town.
[2] Ibid.
[3] Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).
[4] Currie and De Waal. 2001. The New Constitutional and Administrative Law. Juta Law. Vol 1. pg 15.
[5] This is evident from many sections in the Constitution of the Republic of South Africa 1996. ss165 – 180 of the Constitution, contained in Chapter 8 appropriately titled ‘Courts and Administration of Justice,’ detail the safeguards that are in place to protect the integrity of our judiciary.
[6] Note 4 supra.
[7] s165(2) of the Constitution of the Republic of South Africa 1996 which reads that “The Courts are independent and subject only to the Constitution and the law, which they must apply impartiality and without fear, favour or prejudice.” This principle was evident as having influenced the Constitutional Court’s thinking even before the Final Constitution, from which s165(2) is taken, was ratified. This can be seen from paragraph 88 of the judgment of the Constitutional Court given in the case S v Makwanyane and Another 1995 (3) SA 391 (CC). Later, when the Final Constitution came for Certification before the Constitutional Court, at paragraphs 131, 133 and 146 in their judgment in the case Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) spoke directly to the importance of judicial officers being impartial.
[8] s165(5) of the Constitution of the Republic of South Africa 1996 which states that “An order or decision issued by the court binds all persons to whom and organs of state to which it applies”. This principle was upheld in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) in which the Court held that it would uphold the law without fear or favour of the public and its opinion. However this does not mean that the Courts may act in a capricious manner for they too are bound by the Constitution and must take into consideration the rights that the Constitution affords everyone. The disregard that is referred to is when an objection to a Court’s decision is based on something other than a legal principle – such as homophobia in the case of granting same-sex couples the right to marry.
[9] This was upheld by the Constitutional Court in the case New National Party v Government of the Republic of South Africa 1999 (3) SA 191 (CC). If such a situation were allowed to develop it is submitted that this would be a return to parliamentary sovereignty which would be in violation of s2 of the Constitution of the Republic of South Africa which reads that “This Constitution is the supreme law of the Republic…”
[10] The concept of the Rule of Law has not been widely dealt with by our Courts however, the Constitutional Court in many recent Judgments have contributed to the development of its definition. The following list of cases may be consulted but are by no means an exhaustive list: Dawood v Minister of Home Affairs 2000 (3) SA 963 (CC); Pharmaceutical Manufacturers Association of SA: in re: Ex Parte President of the RSA 2000 (2) SA 674 (CC); New National Party v Government of the Republic of South Africa 1999 (3) SA 191 (CC); Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 (2) SA 374 (CC); National Party v Jamie NO 1994 (3) SA 483 (EWC); ANC (Border Branch) v Chairman, Council of the State of the Republic of Ciskei 1992 (4) SA 434 (Ck).
[11] Ackerman, B. 2000. The New Separation of Powers. Harvard Law Review. Vol 113, No 3. pp 623 – 729.
[12] Leon, T. 2008. On the Contrary: Leading the Opposition in a Democratic South Africa. Johannesburg and Cape Town: Jonathan Ball Publishers. Pg 411.
[13] Both the ‘counter-majoritarian dilemma’ and the ‘democratic-deficit’ are explained by Note 1 supra.
[14] Joyce, P. 2006. Teach Yourself: Politics. Reading, Berkshire. Hodder Education.
[15] Note 1 supra.
[16]Consult s174 and s178 of the Constitution of the Republic of South Africa 1996, which speak to the Appointment of Judicial Officers and the Judicial Service Commission and the role it has to play with the appointment of Judges and oversight of the legal fraternity in South Africa respectively.
[17] Kesavananda Bharati v State of Kerala and Others AIR 1973 SC 1461
[18] This point was made in ‘ANC provincial grab would be more than a mere amendment’ by Prof G Devenish on 30th July 2009 in the Business Day. Online version available from: http://www.businessday.co.za
[19] United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4th October 2002)
[20] Heywood, Andrew. 2007. Politics (Third Edition). Hampshire and New York. Palgrave Macmillan.
[21] An explanatory summary of the Superior Courts Bill is published in Government Gazette No. 25282 of 30 July 2003.
[22] s7(1) of the Superior Courts Bill.
[23] s7(3) of the Superior Courts Bill.
[24] s7(1)(b) of the Superior Courts Bill.
[25] Definition of “consultation” from http://www.thefreedictionary.com/consultation accessed on 14th August 2009.
[26] For a corollary example, see the furore surrounding the ‘appointment’ of Acting Chief Justice Sandile Ngcobo to his present post. As reported in the Mail and Guardian on the 19th August 2009, the DA, COPE, IFP and ID have all attacked President Jacob Zuma’s appointment of Ngcobo ACJ as falling short of s174(3) of Constitution of the Republic of South Africa 1996 which prescribes that “the President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice…” The problem with the term ‘consultation’ as Helen Zille notes is that there is no legal test to determine whether ‘consultation’ has had any effect on the thinking of the President. She also correctly notes in her online weekly letter, SAToday, that the President is free to consult with leaders of the political parties represented in the National Assembly and summarily ignore all of them even if they object to his proposed cause of action.
[27] Again for a corollary example see the tension which existed at the Department of Home Affairs (i.e. a seat of the Court) when IFP Leader Dr M Buthelezi MP was Minister and their was tension between him (i.e. the Head of the Court) and his Director-General (i.e. the person envisaged by s7 of the Bill) as explained by Barry Gilder at the DoHA on 25th November 2003: “The tension between the previous DG and the Minister had in many respects paralysed the Department” This attention may have been averted if Buthelezi had been able to appoint his own DG as opposed to having to inherit one (or have one forced upon him as may the situation with the Heads of Court).
[28] If this is promulgated, it is argued that this will be in violation of s165(3) of the Constitution of the Republic of South Africa 1996 which states that “No person or organ of state may interfere with the functioning of the courts.” As a continuation of Note 27 Supra, Dr M Buthelezi MP, in response to the press conference held by Barry Gilder on 25th November 2003, accused the ANC-led Government, in his online newsletter accessible from www.ifp.org.za, of foisting an ANC ‘stooge’ onto him that undermined his efforts to properly head up the DoHA.
[29] The Public Service Act 1994 as amended by the Public Service Amendment Act 30 of 2007.
[30] Ibid at s3(7)(b) which makes provision for the relevant public service official as envisaged by the Minister and not necessarily to the person to whom the official is directly accountable.
[31] Note 21 supra.
[32] General Council of the Bar. 2005. Submissions to the Portfolio Committee on Justice and Constitutional Development: The Fourteenth Constitutional Amendment Bill 2005 and the Superior Courts Bill 2003. Johannesburg.
[33] As envisaged by the Public Finance Management Act, 1 of 1999.
[34] Note 22 supra.
[35] s165(2) of the Constitution of the Republic of South Africa.
[36] This point is superbly argued by The Baroness Helena Kennedy of the Shaws QC in her book Just Law published by Vintage in 2005
[37] In violation of s165(3) of the Constitution of the Republic of South Africa.
[38] Which they are entitled to as per the Constitutional Court’s Judgment in Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). This is especially the case where the Courts awards litigants relief that the executive is unhappy with, as was the matter in the Nyathi case.
[39] s33 of the Bill of Rights (The Right to Just Administrative Action) in the Constitution of the Republic of South Africa.
[40] Note 22 supra.
[41] Horowitz, D. Constitutional Courts: A Primer for Decision Makers. Duke University. Project Muse, Scholarly Journals Online. The reason for this is that the judiciary is viewed as being best equipped to protect the Constitution. Not only do they have the best skills, they are also placed in a situation where they are theoretically free from political interest to see the particular resolution of a matter – they judge it on the merits of the case. Accordingly the judiciary is given the status of the ‘supreme guardian’ of citizens. Such notions are sometimes codified by statute e.g. that High Courts (formerly Supreme Courts) were the ultimate guardians of the interests of the minor as per The Supreme Courts Act. This is especially true when it comes to interpreting legislation and holding the executive to account where legislative processes fail. This ensures that there is a ‘higher’ degree of accountability is expected from the executive (and the legislature) other than merely receiving the support of its party members in Parliament. Such powers also include the ‘activism’ of the judiciary in the creation of new laws where the current legislation fails to adequately reflect the boni mores of society or the spirit of the new Constitutional dispensation. This was held by Freidman J in Baloro and Others v University of Bophutuswana and Others 1995 (8) BCLR 1019 (B). Further, if one considers that the government is given the right to interefere in matters of personal choice (which is in violation of John Stuart Mill’s Harm Principle – ‘my liberty ends where your face begins’ : essentially, that one has the right to do whatever they want to themselves) where it believes that it will result in greater harm to the individual, analagoulsy, the Judiciary should be empowred to act where they think that particular action by the government, even though it may want to do something, will result in greater harm (to society).
[42] Labuschagne, P. The Doctrine of Separation of Powers and its Application in South Africa. Department of Politics, University of South Africa (Unisa). Accessed on 14th August 2009. from: http___search.sabinet.co.za_WebZ_Authorize_sessionid=0&bad=ejour_ejour_badsearch.html&portal=ejournal&next=images_ejour_polit_polit_v23_n3_a6.
[43] Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) in which the Court held that the Separation of Powers is implicit within the Constitution and must be adhered to, at paragraphs 45, 54, 77, 106 – 113, 115, 117, 122 – 123, 125, 141, 151.
[44] s165(5) of the Constitution of the Republic of South Africa 1996. Further, the case National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (6) BCLR 726 (W) is an example of the Courts giving meaning to the Constitution via their interpretation. In this landmark ‘test-case’ “the High Court indicated that … where the respondents abide the decision of the court and make no attempt to justify an infringement of rights, this attitude cannot be decisive on the matter. The court itself must determine as best it can if there is anything to be said in favour of the law.” [Currie and De Waal. 2001. The New Constitutional and Administrative Law. Juta Law. Vol 1. pg 339.]
[45] Notes 40 and 41 supra.
[46] This can even be the case where the Constitution is not supreme as with Harris v Minister of the Interior 1952 (2) SA 428 (A); Minister of the Interior v Harris 1952 (4) SA 769 (A) and [zRPz] Collins v Minister Of The Interior And Another 1957 (1) SA 552 (A).
[47] Note 14 supra.
[48] Note 1 supra.
[49] Advocate Paul Hoffman SC of the Institute for Accountability in South Africa writing in the Business Day (21st August 2009) quoting Conradie JA in Jeyiya’s case (2004 (2) SA 611) and Cameron JA in Ngxuza’s case (2001 (4) SA 1184) in the Business Day on the 21st August 2009.
[50] This should happen anyways given s165(5) of the Constitution of the Republic of South Africa 1996.
[51] In the words of Lord Acton, “power corrupts and absolute power corrupts absolutely.”
[52] Note 1 supra.

State of the Union

2010-02-02T21:58:00.001+02:00

President Obama made his ‘first’ State of the Union address last month. What was noteworthy about this speech – and how it differed from the one delivered on Inauguration Day, just over a year ago – is that President Obama is no longer the golden child of US politics (or world politics for that matter).

Since having taken office, his opinion poll ratings have plummeted (at one stage he was less popular than George W Bush); he has lost two gubernatorial races (despite his personal appearances for both his party’s candidates); and was robbed of that vital 60th Senate seat recently (when an unknown Republican romped to victory in what was a Kennedy/Democrat stronghold for over 3 decades).

A cursory glance at the Democrats’ dismal showing at the polls may be brushed aside as an indictment on local parties and not the President himself. However, what stands out to those less idealistic about the Obama administration is that the little-known Senator from the state of Illinois who managed to use his lack of Washington politics to get to 1600 Pennsylvania Avenue is now being thwarted by that same thing! Talk of changing fortunes! Voters are voting their feelings on national issues (particularly the handling of the banking crisis and healthcare reform) in local elections! Marginal Democrat candidates or newcomer-challengers should be very afraid!

This especially when fear is something that can work magic in US politics. Look at the fight back of the Republicans in the House under Newt Gingrich in 1994 to thwart Bill Clinton pre-Lewinsky! The Republicans have always had a special relationship with the average US voter – their clarion calls about big the interfering powers of big (Democrat) governments have kept them in power for more than anyone bothers to count. More so, the Republicans have shown themselves to be an effective fighting machine when they’re down – and that is what they are now!

This fact, coupled with the nature of the American electoral system that usually swings against incumbents, makes for bad reading for anyone anti-GOP!

Most analysts agree that Obama is in danger of losing both Houses in the mid-term elections to be held later this year.

If Obama isn’t too careful – Congress may not be the only thing he loses: a dismal show now may come to hurt him later in 2012. Apart from potentially destroying whatever chances he has of reforming healthcare in the US, the Democrats may dump him if he isn’t able to bring back some of his old charm. Case-in-point: the two lost governor mansions and that all-important 60th seat. Obama’s presence on the campaign trail was a kiss of death!

Before the 2008 election the Republicans were falling all over themselves in their feeble attempts to hold onto their own seats. With McCain unable to even wake up his fellow geriatrics and the terrible legacy of the Bush era hanging over them, Republicans dropped the ball instead of scrapping with the Democrats as a party to win the Whitehouse, scrapped with Democrats as individuals to win their own seats and thus doomed any candidate of their own.

A Democratic party under pressure in 2012 may do the same – and sink his chances of a second term with them.