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Christelle Terreblanche

Is he an astute politician who speaks to ordinary people's concerns, or a dangerous populist who may be undermining the Constitution?

Jacob Zuma's controversial remarks on the pre-election campaign trail that has taken him around the country have left in their wake a number of questions - and while his comments may have hit the right spot with his audiences, constitutional experts and gender rights activists are not amused.

The ANC president told a rally in the Western Cape last weekend that truant learners and pregnant teenagers "should be caught and sent to faraway boarding schools by force until they get degrees".

He accused teenaged mothers of abusing the government's child grant and talked about "a war on street kids".

He also repeated previous remarks, including one that crime suspects enjoy too many privileges. But since he sensationally pronounced last year that he was willing to reconsider the death penalty, there has been little indication of how he wants to get this past the country's progressive human rights Constitution.

The man is certainly playing to his audiences across South Africa's deep social divides.

His allegorical, vernacular rally style contrasts sharply with his measured and reasonable utterances last week at the Cape Town Press Club, where his audience was a world apart from the mostly poverty-stricken people who turn up at rallies.

Constitutional and human rights experts believe Zuma's campaign approach to be "dangerous" and "populist", one that's testing the limits of the country's Constitution.

Some are incensed by Zuma's suggestion that teenaged mothers should be separated from their babies.

"There is a complete lack of acknowledgement of the responsibility of the father in any of this. Teenage girls are a nice, easy cheap target and it plays to a conservative populism to bash teenage girls," is the verdict of Lisa Vetten, senior researcher at the Tshwaranang Legal Advocacy Centre to End Violence Against Women.

"Frankly, for the ANC Youth League to have not said anything about this either, just goes to show how much they care about the difficulties that face adolescent girls. Why girls fall pregnant is a lot more complicated than we think."

Two legal commentators say they believe aspects of Zuma's statements may be in conflict with the country's Constitution.

University of the Western Cape constitutional expert, Professor Pierre de Vos, says if Zuma indeed meant that women should be forcibly sent away for education, he was making them into "criminals" when they were not accused before the law - "even more grave if it is directed at pregnant women".

"It is obviously preposterous, because you once again make women the scapegoats and the men (who made them pregnant) get away scot-free. It is the old patriarchal approach," said De Vos.

While acknowledging that the scope of teenage pregnancies was a shame to society, Unisa's Professor Shadrack Gutto said the ANC president's solution was not necessarily "child friendly", did not address the root causes of the problem and "from a constitutional legal perspective (was) very problematic".

"As a safeguard you should build in the question of development of children," suggests Gutto.

"In legal terms, the interests of the child (babies) come first, and critical to that is the interests of the child, for instance, in breastfeeding.

"We know breastfeeding is universally acknowledged to be better for the child than other forms of feeding (although) other forms are not necessarily bad for the child."

He said in this context, the statement "could violate the constitutional principle of protecting the rights of children" even before considering the interests of the mother. From the child's point of view "the statements are unfortunate and in many ways opposite to the principles of law".

"We need proper reflection really on this issue - which is a populist statement not properly thought through," he suggested.

But ANC national spokesperson Carl Niehaus believes Zuma has been misunderstood.

The comments - often mistranslated - are derived from listening to communities where the problem of teenage pregnancies "means that mothers and grannies then have to look after the children of their children" and teenage mothers are stigmatised.

Niehaus said Zuma was merely raising real concerns in communities that beg for a response from the government.

He said that when teenagers leave a community to give birth, they are seldom welcomed back "because there is a kind of social sanction".

"It is first of all not an attitude to let men walk off scot-free. It is important that young men are also kept responsible. The suggestion is not at all to withdraw the children by force, but where possible for them to be taken into a new community where they will be able to grow with the children," he explained.

On the ANC president's statements that the rights of criminals should be curtailed, experts argue that this will not solve the underlying problem of weak judicial and police systems that result in offenders walking free.

But what it does do is infringe on people's constitutional rights.

The constitutional legal basic rights of all persons have limitations, stresses Gutto.

"But then to be saying criminals should not have rights, really the ANC president is speaking in a language (that) I think is contrary to our Constitution and the principles of the right to freedom of movement and the rights of expression and freedom of association, which will be severely limited."

Centre for the Study of Violence and Reconciliation's senior researcher David Bruce says that while there's evidence that a control-orientated approach to criminal justice is likely to convict more criminals, it also comes at the cost of convicting higher numbers of people who are innocent.

Bruce warns that a human rights approach, however, depends on a criminal justice system which is staffed by people who are highly skilled and knowledgeable.

South Africa has been struggling to get this right, but all efforts must be exhausted before we start intruding on human rights, he stressed.

"Incarceration is a process which brutalises people. We are living in a country that is already severely brutalised. So we need to be very wary of it," he said.

De Vos says it's a "typical politician's quick-fix" answer to complex problems in our deeply unequal society.

But Niehaus stressed that Zuma had been trying to respond to communities' serious battles against crime and to encourage discussion about whether this could be dealt with "in a tougher way without transgressing the Constitution".

Gutto also acknowledges the flip-side - that South Africa offers little for victims of crime.

"If you put all those together, you can see where the sentiment is coming from - but the ANC president should not be speaking so loosely."

Niehaus denied Zuma was being populist.

"It is more about being sensitive to the issues being raised in townships and rural communities where things are really difficult.

"These are really issues that I think he is quite right to raise," he stressed.

    • This article was originally published on page 17 of Cape Argus on November 14, 2008

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