FIKILE-NTSIKELELO MOYA: The state must operate within its own laws


The South African government is not the first, nor will it be the last, to resort to populist rhetoric when faced with trying times. This, however, should not be seen as justification for such an approach.

Tough times demand decisive and honest leadership. To say anything that you think society wants to hear, is to postpone the pain the reality will bring about.

South Africa is a constitutional democracy. The Constitution guarantees certain rights to everyone, including those for whom there might be consensus that they are the scum of the earth.

The first duty of the government is to ensure that the state operates within its own laws. If it does not, it will cultivate the Hobbesian fate where life is eventually “solitary, poor, nasty, brutish and short” as everyone starts taking the law into their own hands and the strong dominate the weak.

Back to the point about South Africa being a constitutional democracy: Minister of Justice and Correctional Services Ronald Lamola should not be giving anyone false hope about the possibility of the death penalty returning as a lawful penalty.

The minister must, as he was doing, show that his government is serious about giving justice to women and girls who continue to endure violence and even death at the hands of men.

To be fair to Lamola, he did not say that the Cabinet would discuss the penalty itself, but rather whether to approve a referendum to that effect.

Still, it is a non-starter. Some things, such as whether we should pay more or less taxes, or the desirability of the death penalty, are not popularity contest questions. In a constitutional state, it simply does not matter how many people approve or disapprove.

The death penalty is just one of many items that the state has sought to pronounce itself on, to show that it is not indifferent to public sentiment regarding social and economic difficulties the country faces.

The state must be honest with the public and not create the impression that courts have the power to decide that a convicted person never gets paroled. It is not in the hands of a trial judge to determine whether a prisoner is at a later stage deemed to have been sufficiently rehabilitated to be reintegrated back into society.

The same applies to bail. The state has no business contributing that the concept of bail is commentary on the guilt or innocence of an accused person but rather a mechanism of securing their presence at their next court date.

Incidentally, the state has demonstrated that it is capable of ignoring public sentiment and doing what it believes to be for good of society.

President Cyril Ramaphosa has ignored calls to get “tough” on foreign nationals and instead sent former Cabinet minister Jeff Radebe to Nigeria to apologise to that country’s President Muhammadu Buhari.

South Africa has enough spin-doctors. It needs leaders who will not patronise an already hurting nation with promises it knows it cannot deliver.

One would be naïve to not appreciate that in politics, being a populist is not a handicap. Unfortunately, that privilege is for those whose ambition is to be seen in the legislative houses rather than those who see their public position as an opportunity to leave a positive legacy for future generations.

Fikile-Ntsikelelo Moya is an independent journalist and former editor of The Mercury and The Witness.