The simple answer is, no. I’ve attempted to answer this question once before, in 2009. My argument at the time was that South Africa had a strong Constitution, which ensured the country stayed on democratic course. Unlike Zimbabwe, post-apartheid South Africa has endeavoured to consolidate democracy by empowering independent institutions such as the judiciary.
Soon after independence in Zimbabwe, an astute Robert Mugabe made sure that he amassed a significant amount of personal power through legislation such as the Presidential Powers (Temporary Measures) Act, allowing him to pass laws without having to go through parliament if such laws are meant to urgently deal with an emerging crisis or one that has already developed.
In a normal state, this is not a problem, especially considering how other world leaders have had to act in the face of crisis. But, when paranoia governs the conduct of your leader, this law can be used to pursue undesirable and anti-democratic ends such as overturning judicial rulings via presidential decrees.
In 2009 the Democratic Alliance (DA) used, some would say successfully, scare tactics to mobilise votes against the African National Congress purportedly to prevent the latter from manipulating the Constitution for its own benefit. A careful analysis shows, however, that even if he had secured a two-thirds parliamentary majority so dreaded by the DA, there was — and still is — no way President Jacob Zuma could ever change the Constitution, given the sober-headedness and robustness of institutions such as Parliament itself and the judiciary.
Interestingly, that same year, 2009, the figure of Western Cape Judge President John Hlophe seemed to lurk menacingly behind the then incoming chief justice, Sandile Ngcobo, and this had quite a number of people uncomfortable. Their fear: Deputy Chief Justice Dikgang Moseneke was being deliberately overlooked for the post of chief justice because he was one of the judges who had complained to the Judicial Services Commission about Hlophe, alleging that the latter had tried to improperly influence the outcome of cases before Moseneke and two other judges, cases involving corruption charges levelled against Zuma. Could the same script have been used again this year, albeit with a slightly different cast, but achieving the same outcome — block Moseneke’s ascendency?
Contrast this with events leading up to the forced resignation of Zimbabwe’s former chief justice, Anthony Gubbay, in March 2001. A year earlier, a number of judges had ruled against the chaotic, Zanu-PF-led land reform programme but the police commissioner, Augustine Chihuri, repeatedly failed to comply with rulings requiring him to enforce orders for farm invaders to vacate the farms.
In November that same year, so-called war veterans marched to the supreme court, forcibly entering the building while chanting Zanu-PF slogans and calling for out-of-favour judges to be killed. They were not met with the full might of the law.
A recently launched report of the International Bar Association (IBA) makes the observation that “since 2000, the Government [of Zimbabwe] has appointed to the bench judges with previous connections and known sympathies to Zanu-PF. These have also been recipients of land that the government has seized under its controversial land allocation programme”. Renowned Zimbabwe lawyer Sternford Moyo remarked, at the launch of this report, that incidents were rife of judges who failed to pitch or arrived late for court hearings as a result of their farming engagements.
While the judiciary in South Africa has showed admirable character of strength it has also made remarkable blunders. A case in point is Judge Colin Lamont’s ruling banning the liberation song Dubul’ iBhunu (Shoot the Boer) insisting rather that those who sing this song (predominantly blacks) “pursue new ideals and develop new morality”. Analysed within the discourse on colonialism — which it must — the judgment shows glaring contradictions between itself, the Constitution used to justify it, and the history that informs that Constitution.
Since colonisation happened in three distinct phases; dispossession of land, introduction of cash economies and military invasion, it is not difficult to appreciate the role played by violence in achieving all those ends on the part of the oppressor. Understandably, the oppressed also had to use violence, albeit at a lesser degree, to oppose domination in order to protect their own humanity which was under serious threat.
But in asking a formerly oppressed people to “pursue new ideals and develop new morality”, Judge Lamont is invoking a fourth, and arguably more dangerous, phase in the process of colonisation; the colonisation of the mind.
“The colonisation of the mind,” writes Pal Ahluwalia, “is manifested in the manner in which a people’s history is denied and they are made to feel inferior and incapable of challenging colonial order. In this way, the national identity of a people is denigrated and made non-functional. The colonised are rendered not only economically dependent but also psychologically dependent, thus making them the subject of colonial power”.
This is the (dis)order Zanu-PF pretended to be fighting in the post-2000 era — and for the wrong reasons too. The scales had fallen off Zimbabweans’ eyes and it became apparent that the former ruling party’s political hegemony could be seriously challenged. The party had to defend itself. Hence, you could always bet on Mugabe proclaiming “Zimbabwe will never be a colony again” every time he opened his mouth in misplaced attempts at invoking the violent and destructive imagery of colonialism.
Quite critically, however, Mugabe failed to understand one simple truth: that you cannot right a colonial wrong with another wrong. Having inherited colonial instruments of repression and wielding a monopoly on violence, his land-reform programme became exactly that which it opposed and lost credibility. Radio and television propaganda drives spoke the truth: “the land is the economy and the economy is land” but that was as fallacious as a regime could be because we all know that no farming happens on TV, radio or indeed newspapers if no one is actually tilling the land and planting crops.
Needless to say, judges who ruled against farm invasions were characterised as being in the pockets of white commercial farmers, for how could they deny that land reform was a post-colonial necessity that had urgent appeal in order to redress the economic imbalances introduced by colonialism?
Addressing captains of industry early this week, President Jacob Zuma insisted there would be no Zimbabwe-style land grabs in South Africa because his country’s Constitution guides its citizens on what to do. He is right.
But, if Judge Lamont’s ruling is to be read as an attempt at denying the former oppressed their history by creating a legacy of silence (“develop new morality”) around their painful suffering, loss of land, dignity, pride and humanity then there is an urgent need to uncover and recover the truth of all those apartheid repression experiences in order to constructively move forward. Clearly, the Truth and Reconciliation Commission had its pitfalls.
It is also incumbent upon leaders such as Zuma to stop pandering to shallow and malefic white fear, which is unnecessarily causing alarm and deep despondency through organisations such as AfriForum. Zuma should begin to actively lead the streaming of new forms of consciousness that can allow the former oppressed to reclaim — and not deny — their history and as a result be able find springboards to effectual self-expression in tandem with their own hopes, dreams and aspirations but with the single-mindedness and awareness of fostering the collective ownership of the nation together with their former oppressors. To achieve this, they don’t necessarily need new morality or ideals, just their humanity.
Therefore, the pursuit of social and economic justice in South Africa should not adopt a racist outlook, which denies whites or the so-called beneficiaries of apartheid their citizenship and human rights because this is their country too and they have an important role to play in contributing to its development.
This is the mistake Zimbabwe made and that is exactly how the erstwhile breadbasket of Africa has ended up with the curious and profoundly instructive case of one Roy Bennet, a white Zimbabwean farmer who was dispossessed of his land and cannot be sworn in as deputy minister in the current inclusive government setup simply because of the colour of his skin. No type of justice undermines one’s citizenship or humanity.
Perhaps unwittingly, Judge Lamont’s ruling has opened up critical space for robust debate and deep reflection on the future of a non-racial South Africa as it was envisioned in the Freedom Charter. This space must not be left void. South Africa will not become another Zimbabwe but it is quite critical that the institutions that guard the spirit and letter of the Constitution always be guided by the sacred principle of promoting social and economic justice in doing so.
That, in any society, is the ultimate struggle.