Beware the whataboutists

One of the principal proclamations of the Freedom Charter is that “all shall be equal before the law.”

Article seven of the Universal Declaration of Human Rights adopted seven years before the Charter in 1948 had similarly asserted that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination.”

This perspective signalled the ascendancy of a progressive outlook over barbarous notions of a caste system in which race, class, gender, religion and political persuasion are organising principles. Apartheid was but one such a system.

The Freedom Charter envisaged a society of one law for all citizens regardless of race, class, gender, religion and political persuasion and other social constructs. Undoubtedly, its drafters sought to promulgate a state-society symbiosis which would, in turn, promote social cohesion.

The Canadian political scientist, Judith Maxwell, described social cohesion in ways which arguably exercised the minds of delegates to the famous Congress of the People at which the Freedom Charter was adopted: “Social cohesion involves building shared values and communities of interpretation, reducing disparities in wealth and income, and generally enabling people to have a sense that they are engaged in a common enterprise, facing shared challenges, and that they are members of the same community.”

Why is this important? Well, on the legal as with other fronts, South Africa is witness to processes of incitement whose effects would be to create a society that is hugely unequal before the law, above all, so rancorous as to render social cohesion a pipe dream.

A cacophony of embarrassing noises that are often stated more than they are rationally and logically argued, the incitement cries political and other motives to impugn the integrity of the prosecution authorities, judges and others when especially individuals in the political sphere charged for various misdemeanours.

They are also typically driven by a diversionary and often racialised whataboutism which is quick to point out real and perceived weaknesses in the criminal justice system’s track record in bringing wrongdoers to book.

There is perhaps no better whataboutist example in our contemporary public and political discourse than the Steinhoff corporate fraud which led to the spectacular collapse in the company’s share price in December 2017. That no one has been prosecuted to-date has become a low hanging fruit to quarters who pretend commitment to equality before the law.

However, their track record suggests that they have good reason to muddy the waters in order to frustrate law enforcement authorities efforts to apprehend in particular, those who believe that it is their turn to eat. On the face of it, Steinhoff looks like a complex corporate crime whose untangling requires specialised investigative more than your ordinary run-of-the-mill constable skills.

It is also common knowledge that the commissions and omissions of those at the helm of public affairs in the recent past has had the effect of eroding what little capacity the country had built on in this area since 1994. That said, the authorities’ silence over the Steinhoff case does not help matters since it is used to cast aspersions on the criminal justice system and erodes the public’s confidence in the system and the rule of law.

Of course, the conundrum is that investigations are never – or ought not to be – conducted in public. The attempt to force the authorities to act otherwise would simply aid wrongdoers and defeat the purpose of bringing them to book. And the social and political effects of such failure would be enormous.

The biggest losers in such an equation are always invariably ordinary citizens who lack unofficial and illegal networks that eschew anything remotely resembling principles of accountability and restraint. Since it is not populated by fools, society never fails to see things for what they are.

Sooner or later, widespread social consensus in the ineffectiveness and even bias of the criminal justice system forms and ultimately renders the system ineffectual for lack of public support. Political players who engage in whataboutist expeditions believing that theirs is but a once-off affair had better think of the long-term social and political effects of such harebrained schemes.

Simply put, certain things do assume a life of their own, sometimes boomeranging on their progenitors. After all, everyone reaps what they sow. So, the National Prosecuting Authority (NPA) should be encouraged to pursue Steinhoff as they should all other cases they have reason to believe perpetrators have reason to answer.

The fact that the NPA is yet to prefer charges against individual or corporate citizen Y does not mean that the prosecution of individual or corporate citizen X is illegitimate or unwarranted. We should all point out inconsistencies in the application of the law to strengthen the rule of law – not to weaken it by questioning and demanding that the state abandons charges preferred against an accused.

Concepts such as “narco-state”, “mafia state”, “criminal state” and others that depict such lower depths arose under circumstances of the collapse of the criminal justice system; itself a reflection of larger state failure. Criminals superordinate society and the state becomes an instrument to commit crimes against society.

Society’s confidence in the rule of law will also be better served by a concomitant investment in a larger public discourse about the nature of society the delegates to the 1955 Congress of the People envisioned. Social equality eschews the moral corruption of apartheid.

Part of what is missing in today’s attempts to fashion a post-apartheid society is that there is little investment in a discussion about matters moral – what Nelson Mandela referred to as “the RDP of the soul”. Whereas the rule of law is crucial to the post-apartheid endeavour, it is not, in of itself, sufficient to achieve a society in which all are equal before the law.

And if political players are to be party to the solution as they ought to be, they should pay sufficient attention to bridging the gap between what they say in official speeches and what they do every day.

Mukoni Ratshitanga. Picture: Neil McCartney

Ratshitanga is a consultant, social and political commentator.

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