On 21 March, Julius Malema celebrated Human Rights Day by once again inciting the killings of (primarily white) farmers. The Supreme Court of Appeal last year decided that calls for racial slaughter are consistent with South African law. Among other foreign observers, however, US Secretary of State Marco Rubio is somewhat taken aback.
On 24 March, Rubio posted the following on X:
It should not require an American politician to point out the screamingly obvious that our own ostensibly acclaimed courts ought never have missed.
But it is not entirely surprising that judges have erred so badly. Indeed, this is not a new problem in thinking around the rule of law as a mode of governance distinct from the rule of man.
Malema’s call
That “Kill the Boer,” when uttered by the likes of Malema, is a call to violence is not up for meaningful debate. Its own history as a struggle song (in the abstract) does not negate the exhaustive testimony that Malema provided under oath that he meant nothing figurative about what he was chanting.
And, unfortunately, our judges’ willingness to bend over backwards to specifically accommodate Malema in particular, in legal precedent does not negate the factual reality of the “Kill the Boer” chant.
For the Supreme Court of Appeal, which has access to Malema’s own detailed testimony, to choose to ignore everything the “commander-in-chief” said in the witness box was a substantial error. The Court has explained that because Malema was a politician who understandably used emotional rhetoric to cultivate support, the “reasonable person” in society would understand that he was just being figurative in his language.
Rarely has the ‘reasonable person’ test been so obviously replaced with the preferences of the judges, who should at least make an attempt to step into the shoes of the average person.
In the real world, so-called “hate speech” dispensations adopt the converse approach: it is precisely politicians – those who seek to control the coercive machinery of state – who are particularly bound by the hate speech law, rather than being somehow exempt owing to their political status.
Rule of law
The bizarreness of the judgment aside, it was foreseeable that a South African court could rule this way.
Firstly, it is clear that our judiciary has been unduly politicised by institutions like the Judicial Service Commission. This means that judges would be reluctant to issue judgments against the most vocal and influential among their own appointers and promoters.
But there is a more general reason that speaks directly to the rule of law.
Legal and economic polymath Friedrich von Hayek writes in his The Constitution of Liberty that:
“Law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people, and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time.”
As a result, “The lawgiver cannot foresee what will be [the effect of their laws] on particular people or for what purposes they will use them.”
This “ideal form” of law, notes Hayek, works when legal subjects can say that the lawgiver “does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans.”
Hayek’s conceptualisation of the rule of law, then, is that the law must be – and must be applied to be – impersonal and general.
One might intuitively think that it is better for a lawmaker or judge to understand the particular context and specific circumstances for which they are legislating – and often this might be better – but it is a double-edged sword. Close familiarity can breed grievance and prejudice just as much as it can cultivate expertise and consideration.
Just as knowing the history and context of South Africa could make judges more attuned to nuances, could it be that the judges themselves share certain historical grievances and agree that certain scores, understandable only within the local context, must be settled? The law, however, if it is to bind all and if all owe it obedience, may not be invoked as a tool for score-settling.
Decentralisation
This is why, despite being a federalist and decentralist, I have never been an in-principle localist. I submit that the notion that all problems must be solved locally (however “local” happens to be defined) is a dangerous one.
It is why you will never see me accusing others of being “globalists” or anything of that sort.
Simply, the more general, more distant, more unfamiliar is sometimes the more sensible option than the more particular and more familiar. Sometimes you need an uninvolved, dispassionate mind to adjudicate your dispute, because the rule of law becomes next-to-impossible when one’s own judges are (active or passive) participants in the political and discursive ecosystem in which the dispute came about.
Virtually everyone at home and abroad who is not a direct participant in the discourse looks on, in horror, as the South African legal and political dispensation countenances genocidal rhetoric directed at a disfavoured and ethnically-coded profession (or a disfavoured racial minority – take your pick). This speaks to just how unduly involved and passionate our legislators and judges may have become.
The principle of the rule of law and a so-called independent judiciary cannot function as intended when the judges themselves have the same grievances that those party to the controversies before them have.
Ideally, legislators should not be party to these grievances, but this is ultimately a democratic problem. Judges, however, in particular, need to be the brake, not the lubricant, on the excesses of democratic score-settling.
We have the constitutional infrastructure for it.
Hayek’s standard is incorporated into the South African Constitution by virtue of section 1(c) – part of the founding provisions – that says the rule of law enjoys co-equal supremacy with the written Constitution itself, and also section 36(1), which provides explicitly that constitutional rights can only be limited by “laws of general application.”
However, much work remains to be done to make this a reality.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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