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16 Oct 2019 15:21
Interesting and important complexities that the case of convicted Fees Must Fall activist Kanya Cekeshe raises are missing from public debate about whether he should be released from jail. They’re missing for the simple reason that debate in a time of Twitter often collapses into lazy dichotomies, and muscular performances of self-assuredness, as if any hint of uncertainty is evidence of cowardice.
Let’s sketch why this case — and whether Cekeshe should be pardoned by the president — really isn’t a black and white matter.
Cekeshe was sentenced to an eight-year prison term, three of which were suspended, for public violence and malicious damage to property.
There are reasons to both be sympathetic to Cekeshe and to worry about the effect of pardoning him. Puzzling through these various factors isn’t a simple matter.
It doesn’t seem as if the judicial officers that have adjudicated the matter thus far have grappled adequately with the idea of justice. Justice is not only a legal concept. It is not even obvious that it is primarily a legal concept. Justice is a normative concept that is imbued with moral and political meaning and value. That is why many legal theorists and political scientists agree that law and justice can sometimes part ways.
Not every application of the law is an affirmation or promotion of justice. If that were the case, to take an obvious South African example, every time an interracial couple was jailed by the apartheid government for violating the Immorality Act, we would be forced to think of such incarceration as inherently just. Clearly that is madness.
Sometimes law and justice co-incide but on other occasions that’s not the case.
The reason judicial officers, especially in an unjust society such as ours, cannot behave like robots when applying the law is precisely because what we were aiming for after 1994, with the help of the new constitutional order, was a more just legal system, one that is cognisant of the injustices built into the foundations of our nascent democracy. This is why, when we watch the interviews of candidates to become judges, especially of the Constitutional Court, we assess not only their technical competencies as lawyers but also their commitment to value-laden hermeneutics.
What does this have to do with Cekeshe? Well, it means that a just society is one in which the judiciary must concern itself adequately with context and biography. A young man did not simply wake up one morning and set a police vehicle alight for fun. Sure, he bears moral and legal responsibility for his actions and is competent to be judged for his action.
But how the law views his actions, situated in a sociopolitical context of political activism aimed at bringing about a more just and equitable education system, tells us a lot about the ability of a judicial officer to balance accountability and the entrenchment of the rule of law, on the one hand, and wrestling with difficult questions about what a just form of punishment is, on the other.
Once you recognise these competing goals of the legal system, there is plenty of space to not promote lawlessness yet also to show due regard for the normative aim of promoting justice in all its complex moral and political glory. You could, for example, find someone guilty without sentencing them to prison. Why is incarceration, in light of the particular circumstances and historical facts of this case, compulsory and irresistible?
There is no sense that our courts get these nuances. One is left wondering whether some magistrates wake up and go to work to promote justice or whether they are human versions of old computer programmes that apply simple formulae slavishly with no regard for complexity.
On the other hand, there are some poor arguments in support of releasing Cekeshe. It’s fair to point out that some Fallists have gone to Parliament, others have continued their studies and still others are working for corporates. Inconsistency in how we deal with two or more individuals who transgress either some social norm or the law itself tells one a lot about how unjust a society is. But it is not true that we regard anyone deserving of a presidential pardon or of not being prosecuted at all just because others got away.
I admit, however, that this is not an easy issue to settle. Sometimes one or two people are prosecuted as a form of scapegoating. We have seen this with apartheid-era killers who languish in jail while countless foot soldiers of colonialism and apartheid live among us as if morally blameless. Yet, it always struck me as wrongheaded to imply that we should release someone found guilty of an atrocious crime because he cannot be jailed unless or until all of his mates are also brought to book.
The implication of the inconsistent administration of justice should surely be that the justice system should be improved to make it more consistent rather than us effectively settling for the conclusion that we should exculpate anyone convicted of a crime. Surely?
Then there is the issue of what counts as political activity. We are, as we know, a nation of protesters. Because service delivery is tardy, and millions of people live under conditions of poverty and deep inequality, the destruction of public property that accompanies many service delivery protests is also political. I have never been convinced by the cheap moralism of some citizens on the cushy side of the inequality divide who imagine that poor people, through sheer stupidity or vicious moral character, “decide” to be violent.
The obvious needs to be pointed out at this stage — that one can and must ascribe agency to all citizens and hold everyone, poor or wealthy, employed or unemployed, accountable for their actions.
I am not suggesting that poor people should be treated with kid gloves. But the nexus point is that if we are going to show complexity in how we handle a case such as Cekeshe’s, how many of us are prepared to extend our analysis to thousands of people who are incarcerated because they were implicated in violence during an explicitly political protest that is in the news for just a few seconds before a magistrate jails them? And it’s done without a Twitter hashtag being formulated in solidarity with these “political” prisoners.
In a weird way, Cekeshe is benefiting from the visibility of the Fallist movement. Others are not so lucky. Where is the activism for all these politically motivated cases of destruction of public property to be handled similarly? Will Justice Minister Ronald Lamola take up these cases too? And, at that point, what might the practical consequences be for entrenching a culture of accountability and upholding the rule of law?
The only way to avoid this dilemma is to insist that Cekeshe’s case is uniquely political and therefore distinguishable from other cases. But that claim needs some serious fleshing out and further argument before it can be accepted as cogent.
For now, it is simply an assertion despite the obviousness that a lot of public violence in protests, on a weekly basis, also have a political character.
So what does all of this mean? First, we need our courts to be filled with more magistrates and judges who can grapple with what the true requirements of justice are. They should be guided by the values of the Constitution and a deep regard for context, personal biography and restorative justice principles when handling certain kinds of cases.
Second, we should all be aware of the danger of regarding our initial intuitions as axiomatic truths. The public debate about these issues has betrayed a tendency to be unkind to one another, to be recalcitrant in the face of counter-argument. We would benefit from sometimes doubting ourselves.
Last, this is a reminder of how blunt an instrument the law is when it comes to the justice project. If we want to live in a just and equal society, the journey to that end should not chiefly rely on court battles. By the time a case about the fight for quality and affordable education lands up in a court of law, something has gone horribly wrong with our democracy itself.
We need to get back to the core project of building a capable, caring and responsive state that delivers on the promises of our lofty constitutional edifice.
Read more from Eusebius McKaiser
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