Does our Constitution protect polygamy? I don’t think so.

I agree with columnist Justice Malala that polygamy is a selfish and predatory practice – but is it, as it now seems widely believed, a constitutionally protected practice?

I am not a constitutional expert, but I can read, and I can’t find any reference at all to polygamy in the constitution. What the constitution does is to protect cultural practices that do not clash with other protected rights in the Bill of Rights (see Section 30). In other words, you may live according to your culture, as long as you do not trample on the rights of others.

Polygamy was legalised by the Recognition of Customary Marriages Act of 1998. But the mere fact that the practice of polygamy (and polyandry) is given legal status by statute does not mean that it is constitutionally acceptable. No aspect of the Recognition of Customary Marriages Act has , as far as I can ascertain, been challenged in the Constitutional Court. In my view, a strong case could be made the polygamy constitutes unfair discrimination on the basis of gender (especially in forms which grant different hierarchical status to wives).

Perhaps a constitutional expert out there would care to comment?

No Mr President, it is not unconstitutional to criticise your culture

President Zuma has called for a national discussion about our “moral code” as a nation because, he says, it is unconstitutional to judge others by the standards of one’s own culture.

“Each one of us must be respected,” Zuma said, according to News24.com. “That’s what our Constitution says. No matter how you feel, some of us have very strong feelings about some of the things, but we respect the Constitution, no matter how we feel… It is about redefinition of ourselves. Who are we? What are our values?

“For, there is no standard that is agreed. The Constitution says there are diversities. It recognises this. And that we should respect cultures of others.

“No-one has a right, therefore, to use his or her own to judge others. It’s unconstitutional if you do so.”

In one sense, I agree with the president. There is a tendency among some South African and foreign observers to judge African behaviour by Western standards, and to belittle some apsects of African culture. We should respect cultural differences. But when Mr Zuma argues that it is unconstutional per se to criticise the cultural practices of others, he is wrong (and I suspect the fact that his own so-called cultural practices have come in for severe criticism has something to do with his this).

Why President Zuma’s love child is a public issue

President Jacob Zuma, married to four wives, has an adulterous affair (not his first), out of which a child is born. Is this a “personal matter”, as the the ANC and the presidency insist, or is it a matter of public interest on which the media have a right – indeed, a duty – to report?

Our common law recognises the public interest as a justification for invasion of privacy, but the concept is notoriously difficult to define.  A distinction is often made between the public interest and that which merely titillates the interest of the public: the public interest is NOT the same as “that which interests the public”. A public interest implies that the public can derive some meaningful benefit from the information published. As a famous jurist stated in an oft-quoted judgment: “Whenever a matter is such as to affect people at large so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them and others; then it is a matter of public interest.”

Communist Party’s attack on Zille is puerile and defamatory

This is what passes for political debate in South Africa these days:

We cannot tolerate a situation wherein ugly Zille uses money that is supposed to build toilets to buy her own make-up and Botox. You can’t use that money to buy your Botox, that money belongs to service delivery…

The speaker was Buti Manamela, leader of the Young Communist League, at the launch of the SA Communist Party’s “Red October” campaign in Khayelitsha, Cape Town (read the full report in The Times).

How does he get away with this? And why do senior ANC leaders, such as Education Minister Blade Nzimande and ANC deputy secretary-general Thandi Modise, who were present, allow him to spew such vile sexism? Shame on them.

It is OK to attack the DA’s record in service delivery in the Western Cape. But it is not OK in 21st Century South Africa for a male politician to attack a female politican opponent by calling her “ugly” – especially not one who was in the front of the chorus condemning Zille for “sexism” when she appointed an all-male cabinet. And it is not OK to accuse an opponent of stealing public funds to pay for make-up and cosmetic surgery. That is not only puerile, it is also defamatory, and I hope Zille sues Manamela for every penny he has.

Service delivery? I don’t know if Manamela, Nzimande or Modise read The Times, but if they do, they should turn to page 6 of today’s paper, where they’d see a photograph of a child running through a cess pit of untreated sewage in a street in Ezakheni township, at Ladismith in KwaZulu-Natal. Despite residents’ frequent complaints, the municipality has done nothing to prevent sewage spills like these. This is in an ANC municipality in an ANC-controlled province. Calling Helen Zille names won’t make those people’s lives any better.

Nyanda for communications minister: is this some kind of sick joke?

Some journalists believe that President Jacob Zuma’s inauguration speech signalled a thaw in his relationship with the media. But actions speak louder than words: look who he appointed as his communications minister.

Of all the surprising cabinet appointments – and there are many - that of former Defence Force chief Siphiwe Nyanda as minister of communications is the most puzzling. Not only has Nyanda no obvious qualifications for the job, he has an active dislike of the media. He has been one of the most vocal media conspiracy theorists among Zuma’s closest supporters. 

In an article in November 2006, when Jacob Zuma was facing a charge of rape, and the corruption and fraud charges were still hanging over him, Nyanda accused the media of pursuing a vendetta against the president-to-be. Likening media reports of Zuma’s legal troubles to “name calling and scare-mongering”, he argued that the media were part of a giant complot of “forces opposed to Zuma’s ascendancy to high office”, and concluded, somewhat ominously: ”With media like this, South Africans should not only be afraid – they should be very afraid. They should fight to reassert their rights to balanced, unbiased news reporting.”

Two years later, after the NPA dropped charges against Zuma, Nyanda again accused the media of “connivance” in “a grand scheme to persecute a citizen and violate his rights”; part of a “grand strategy” to undo the ANC president.

(Nyanda himself, it must be noted, was a target of unfavourable media attention some years ago, when it emerged that, while still chief of the defence force, he had bought a car at a discount from a company which successfully tendered for a chunk of South Africa’s arms deal; and again after he had left the defence force and went into business with a shady – to say the least – operator in the defence industry. Whether this is part of the conspiracy he doesn’t say.)

In his new position, Nyanda won’t actually have that much to do with the news media. He has a role in the appointment of a new SABC board, but the power to appoint and fire board members lies with Parliament. He oversees ICASA, but the communications authority is independent from ministerial interference. He will be the political head of the Government Communications and Information System. Arguably his most important job will be to oversee the liberalisation of South Africa’s telecommunications authority. He has no legal authority to exercise control over the news media.

But he will set the tone for the relationship between the media and the government, and if his past utterances are anything to go by, we should not expect a new era of glasnost. While the ANC has shelved its Polokwane proposal for a statutory media tribunal, the kind of thinking that led to it in the first place is still prevalent among some of those who believe Zuma was persecuted. It is the kind of thinking, as media commentator Anton Harber has noted, that “does not discriminate between acceptable criticism, discussion and debate, and the actions of the country’s enemies (whoever they are). It lumps everyone together in a lazy, sloppy and potentially dangerous way. The party’s critics are at one with the country’s enemies”.

You could argue that Nyanda simply got his just rewards for his steadfast support of Zuma; and there is nothing intrinsically wrong about appointing your closest allies to the cabinet. That is how politics work. I suspect Nyanda didn’t get Defence – for which he is imminently suited due to his military background – because he has too many business ties with the defence industry. So it may be that Zuma slotted him into the communications portfolio simply because it was available. But it just seems to me that by appointing Nyanda as communications minister, Zuma is saying something different to his ringing endorsement of press freedom in his inauguration speech.

Nyanda may prove me wrong; I hope he does. After all, it was his boss – the victim of the “media conspiracy” – who said on Saturday:

“We must defend the freedom of the media, as we seek to promote within it a greater diversity of voices and perspectives.”

It’s payback time: Zuma’s record Cabinet

Can someone explain to me why South Africa needs 31 Cabinet ministers? According to The Times, Jacob Zuma is planning to enlarge the Cabinet from 28 to 31, plus 19 deputy ministers. That would make South Africa’s Cabinet, as far as I could ascertain, the largest in the world.

The UK has 22 cabinet ministers; France, a country synonymous with bureaucracy, needs only 16. India, with a population 25 times ours and developmental problems as huge, has 30; Nigeria makes do with 23. And we need 31, plus 19 deputy ministers to tie their bootlaces? You’ve got to be kidding me.

The idea, Zuma said at a media briefing on the eve of the election, is to make Cabinet “more effective and efficient”.

“The incoming administration will make changes to certain Cabinet portfolios based on the experience of 15 years in government and the priorities for the five years ahead,” The Times quoted him as saying. “We know that our people have greater expectations as the ANC campaign message has captured their imagination. They will expect faster action and visible change in their lives.”

The Times bills this “Zuma’s plan for South Africa”.

My suspicion is that it has less to do with the needs of the country than the need to reward loyal comrades. Among those to be given Cabinet positions are prominent Zuma supporters such as Communist Party leader Blade Nzimande, Women’s League president Angie Motshekga and ANC MP Enoch Godongwane, The Times said. It is payback time, and the hundreds of executive mayor, MEC and provincial premier positions available just aren’t enough (or high enough).

I mean, how else do you explain three deputy ministers for foreign affairs? How would this make the department of foreign affairs more efficient? One deputy, according to The Times, will be responsible for Africa; another for multilateral institutions; the third for a “military skills development programme”. What is left for the minister to do?

And a deputy minister for youth affairs? Julius Malema needs that job more than South Africa.

It is true that the government has a problem with delivery. And the ANC has promised a lot in this election campaign. But appointing more ministers will not solve the problem. Firing a few may.

Mangcu accuses the media of “cowboy justice”. Where’s the evidence?

A favourite tactic of media critics is to use anecdotal evidence to tar the whole profession. In his Business Day column this week, Xolela Mangcu goes one better. He convicts the media of “cowboy justice” in its coverage of Jacob Zuma’s legal travails, without providing one shred of evidence in support.

Sweeping statements are made, and then applied to the media at large in support of Mangcu’s argument that Zuma isn’t getting a fair deal. For example: “Journalists and cartoonists have continued to describe Zuma as a rapist” even though he has been acquitted on a charge of rape. But which journalist? Which cartoonist? Similarly, “they” – the media – “have convicted Zuma in the court of public opinion of the murder of ANC cadres Ben Langa and Thami Zulu”. But which media specifically? Where is the evidence? Of course there have been ethical lapses in the coverage of Zuma’s political and legal battles. Nobody is perfect. But you can’t condemn an entire profession for the mistakes of a few. For one who accuses the media of “riding roughshod over the rule of law”, Mangcu shows remarkably little respect for due process.

What’s more, Mangcu is plain wrong when he states that the law does not differentiate between politicians and ordinary citizens when it comes to protection of their rights. Our law relating to the protection of privacy does indeed make a distinction between ordinary people and public figures such as politicians, who are deemed to have a diminished right to privacy. Similarly, the law of defamation recognises that a politician has less of a claim to the protection of his reputation than ordinary citizens. The mechanism used to decide under which circumstances a politician’s privacy may be legitimately invaded, or his reputation impaired, is the public interest (not, as Mangcu states, “public opinion”). The public interest is a difficult concept to pin down, but we have a long line of judicial precedents to guide us. It does not mean “what the public is interested in”, and neither is it the same as the “national interest”. It means, more or less, what the public should, or needs, to know about our politicians. By that standard, much of what Mangcu describes as “cowboy justice” is in fact legally justifiable.

It is not, as Mangcu complains, that “some of our most senior journalists” expect Zuma to meet “a higher standard than that in the Bill of Rights”. They expect him to meet a higher standard than ordinary citizens, because he wants to president of our country. There is nothing wrong with that.