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*Ban on song is bad for independence of courts* *Steven Friedman, Business Day, Johannesburg, 7 April 2010*WANT to destroy constitutional democracy? Here's how: use the courts to fight political battles and cheer when a judge invokes the constitution to issue an apartheid- era banning order.
The belief that the law and courts can solve political problems has been a dangerous delusion of the post-1994 era.
The courts can help to safeguard democracy. But if they are used to impose on the racial majority the will of a minority, majority politicians will resist and the independence of the courts will be destroyed. All of which explains why the court actions against the singing of a struggle song by African National Congress (ANC) Youth League leader Julius Malema are bad for democracy, the constitution --- and minorities themselves.
One reason why it is bad for democracy is that it may have enabled Malema to escape accounting to society. Those who tell him what to do knew a diversion was needed to draw attention away from his personal finances. The claim that the Pan Africanist Congress did not organise Sharpeville did not have the desired effect of rallying the ANC behind him and the song was no doubt seen --- accurately --- to be a more effective method. Had it been greeted merely with predictable minority outrage, the storm would have blown over in a few days. Now, because of the court action, Malema's finances may be placed on the back burner for months as the ANC and others committed to majority rule support his right to sing a song. Not even the reaction to Eugene TerreBlanche's murder may prevent Malema from deflecting attention from his finances.
It is bad for minorities because, if they use the courts to silence those they would prefer not to hear, they are opening the door for politicians elected by the majority to begin demanding that they be silenced too. And, since the majority's representatives have powers to legislate and appoint, the minorities are certain to lose.
If struggle songs are banned, can De La Rey be far behind? And why stop there? Every radio phone-in or newspaper letters page contains material which could be seen as offensive to the black majority. Once minorities rely on bannings, judicial or otherwise, they are certain to invite unwelcome scrutiny of what they say.
It is bad for the constitution because it could prompt assaults on judicial independence and free speech. Inevitably, governing party politicians have reacted angrily to the idea that a single white judge can tell them what to sing and have demanded changes to the judiciary.
These calls are, in one sense, helpful to the constitution. Any judge who, in a divided society, issues a highly sensitive ruling without giving any reason for his decision, and then accompanies it with an order which looks exactly like one of the sweeping edicts issued by the apartheid state (the judgment may well have made it an offence for readers to write to this paper denouncing the song if they mention its words) ought not be allowed onto the bench. If the politicians ensure that judges who think they can issue apartheid- style decrees without even bothering to justify them are no longer appointed, they will be taking us forward.
But calls for the courts to change can become a means of ensuring that they respect the wishes of the political authorities. This becomes more likely when the delicate balance protecting the courts' independence is disturbed, as it was by the ban on the song.
Opposition politicians who cheered the judgment --- and warned others not to appeal against it --- clearly have no idea what is needed to preserve a fragile democratic order or the interests of their voters. It is one thing to reject a song, quite another to demand that it be banned. Endorsing the use of the constitution as a battering ram to impose the will of the minority is bound to discredit the politicians who endorse the judgment. Sadly, it may discredit the constitution too.
But what about the argument that singing the song can get people killed --- which is being raised with greater force after TerreBlanche's murder?
Again, those who claim to value the law and constitution should begin to take seriously some of the core values of a fair legal system --- that judgments are made on evidence, not prejudice. There is no evidence that the song had any influence on TerreBlanche's killing or that of anyone else: unless and until there is, the courts have no role in deciding whether people can sing it.
Of course no one should be allowed to incite violence against anyone else. But using the law to prevent incitement requires clear evidence that the speech or song directly encourages acts of violence by someone specific on someone else --- the vague claim that struggle songs contribute to violence against white farmers is no more tenable than a claim that those who sing some Afrikaans songs or malign black people contribute to violence against black farm workers.
The judgment is a far greater threat to our constitution and democracy than any song could ever be. The sooner it is subjected to the scrutiny of the constitutional court, the safer we will be.
* Friedman is director of the Centre for the Study of Democracy, an
initiative of Rhodes University and the University of Johannesburg.
*From: http://www.businessday.co.za/articles/Content.aspx?id=105483*
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