A recent decision by the Constitutional Court to release Chris Hani's killer on parole may have angered many but it was a defining moment for our constitutional democracy, writes Nkanyiso Ngqulunga.
At the beginning of this year, I sought to understand something about justice and post-conflict nations that have ever been built around the world, so in the casual conversation I had with my dad, I asked, "Can Settlers Become Natives?". He gave both a comprehensive and profound answer.
"No, they can't. [Commentator Mahmood] Mamdani argues that both natives and settlers can transcend the identities of settler and native by becoming 'survivors’'. He further said that in an inclusive post-colonial political order, they could all become citizens. The main proposition is that true decolonisation requires discarding the colonial identities of settler and native by building a political order of inclusive citizenship."
Recently the Constitutional Court ruled that decision by the justice minister to refuse Polish immigrant Janusz Walus parole is irrational. This was a politically charged case, and a lot a stake was at stake either way. While the decision angered many leaving the members of the SACP dazed alongside a visibly angry Limpho Hani, wife of Chris Hani, it was a defining moment for our constitutional democracy.
In this article I try to argue that their reactions were valid, but at the same time, nation-building is moving towards an inclusive society. Criminal justice is obsessed with punishment and deterrence. I argue that this negates the essential historical context behind the cycle of violence and political violence.
Neville Alexander in his essay titled 'The state of nation-building in the New South Africa' says that if we do not problematise the old political order, the consequences of that is we cannot arrive at strategies that promote minimally, networking, and optimally, the integration of the population of South Africa. This is unless we can invent a new discourse involving a new set of concepts that is more appropriate to the peculiarities of South African history.
The history of South Africa is a complicated one, but one may argue that there were many alternatives when the country was in its transition period, for example to choose war, expel all white people or go the Nuremberg trial route to hold the apartheid perpetrators accountable for the atrocities.
Polarised
Our founding fathers chose constitutional democracy. Where does this new rainbow nation utopia put us? Former apartheid survivors would live in one country side by side with their perpetrators. Could justice be attained under that political order? It is these ideas that have left us in a polarised environment about what is to be done. I argue that without addressing these issues, we are bound to make mistakes in our efforts at nation-building.
Can justice be achieved through a court? Is it possible that the perpetual imprisonment of Walus would have achieved anything? This requires that we understand political violence at its granular level, that it is part of the previous political order and as such, is part of the violence unleashed on black people by the apartheid state. We should avoid situations where we link violence to individuals or isolate individual behaviour from the entire political order that is a provenance of the very same violence.
Mamdani argues that 'the assumption is that you can easily and eternally separate the bad from the good. The more our notion of violence is depoliticised, the more we tend to shy away from the issues and think that the solution for violence is to target the perpetrator'. It is this fundamental principle that we should always remember regarding the crimes committed by Walus and his accomplice. It was considered to be crime even under the apartheid law, even though apartheid-sanctioned violence was inflicted upon black communities such as forced removals, land dispossessions. Can we then exclude apartheid and just brand Walus as only its representative? He was an institutional implementor of violence overseen and administered by the government of the time. His perpetual imprisonment would not have brought about justice in the same way his release means nothing.
Reform
Mamdani further argues that in the case of South Africa, there was no country designated to the victims in the same way Israel was given to Holocaust survivors. Following the end of apartheid, victims and perpetrators, blacks and whites had to live in the same country. He says that the goal was not to punish individual criminals but to change the rules of political life to reform the political community.
When our founding fathers made the Constitution, they had in mind this difficult trade-off whereby the victims of the apartheid would have to benefit equally from the very same constitutional democracy they were building. It was a historical turning point and was an attempt to reform the political order and forge new dawn in our country free from the circle of violence. The introduction of the court system and constitutional sovereignty meant that the Constitution is above anything else in the country.
The Constitutional Court has found itself giving judgments that are counter-majoritarian in nature due to the prevailing circumstances as well as considerations of the rights in the Constitution. The abolishment of the death sentence is a prime example where the court used its power to interpret the law as deemed appropriate and the Constitution was used further to develop these new values of the new constitutional democracy.
It is important to remember that there was no referendum around the issue. The courts are sometimes confronted with decisions that are political in nature, while the critics of the judiciary often say that courts should not enter into the political arena with their decisions. Still, in the case of Walus, we see a different situation whereby politicians encourage the court to enter the same arena they often speak against.
It has been fashionable within political circles' to slander the judiciary and turn it against the public as an enemy of the people. It is my argument that they are doing so out of ignorance. They are also sanctimonious by projecting their failures into the court system.
The decision of the Minister is public in nature, regulated by the Constitution and legislation. In contrast, it is very odd that the complainant against the court decision has the legislative power to do anything, but they elected not to do so.
The current correctional service legislation is from the apartheid government. The amendments were since done in 2012, and most of the legislation from the apartheid regime had to be struck down through the courts despite politicians having the power to act.
It is easy to stand in an ivory tower and catalogue the atrocities but when you have the power to do something, you instead would rather attack the judiciary that is confined to the very same laws that politicians agreed upon as a settlement for South Africa's transitional period.
- Nkanyiso Ngqulunga is a gender activist and legal scholar with an interest in feminist legal theory and decolonisation.
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