He has threatened and abused. Incited violence with a nod and wink. Yet Julius Malema, self-styled commander-in-chief of the Economic Freedom Fighters (EFF), has seemed untouchable.
It’s one of the conundrums of South Africa’s supposedly even-handed law enforcement and judicial system. An old white woman is jailed for three years for using the K-word, after swift prosecutions in both the Equality Court and then, criminally, in the magistrate’s court.
In contrast, Malema – who says he won’t call for white genocide “just yet”; who talks of “war”, “power through the barrel of a gun”, “cutting the throat of whiteness”, “killing for Zuma”, and that his opponents’ “lives could be lost”; and who wants to send “home” Indians and Chinese, who are all “racist” – has never been held accountable in the criminal courts.
But things are changing. Not, it might be said, by the government.
The National Prosecuting Authority (NPA) is still, after half a dozen years, waiting for “investigations to be completed” before deciding on whether to bring charges relating to R52 million in tender fraud. The SA Human Rights Commission, too, has determinedly been spinning its wheels on dozens of complaints about his racist and misogynistic tirades.
No, it’s not the mighty institutions of the state that are acting. It’s the citizenry that is taking the battle to Malema, using the legal mechanisms afforded by a good constitution.
Last week, journalists named by Malema as “apartheid-era spies” approached the courts to force an EFF retraction and the payment of R1 million in damages.
This week, Public Enterprises Minister Pravin Gordhan laid charges of crimen injuria and criminal defamation against Malema and his deputy, Floyd Shivambu. He has also laid unspecified charges with the Equality Court, where the process is speedier and the burden of proof less onerous.
In 2010, Malema was found guilty by the Equality Court of hate speech and harassment for saying that Jacob Zuma’s rape accuser had a “nice time”. In 2011, again, for singing “Shoot the Boer”.
AfriForum has been particularly adept at using civil processes. In the past 18 months, it has won five tussles with the EFF, following a court order it obtained interdicting the EFF from inciting land invasions. The EFF must pay AfriForum more than R550,000 and the amount is rising, as the EFF tries to have judgments overturned.
In Nazi Germany in the 1930s, the theologian Martin Niemoller memorably pinpointed – in his poem, First They Came – the tendency of groups to be complicit in silent in the face of fascist scapegoating until they, too, are affected. The same is true here, 80 years later.
It took a Malema attack on Indians to rouse the Kathrada Foundation to bemoan his long-evident racism. And it has taken Malema’s attacks on journalists to cause the media to question their generally uncritical, often benign, depiction of him and his party.
The government has in its armoury all that it needs to curb Malema and the EFF. Since it apparently lacks the moral courage to use these weapons, it’s fortunate that activist citizens are stepping into the breach.