Open Letter to Ramaphosa: We Demand that the Constitution and Our Rights Be Respected

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Cyril Ramaphosa
President Cyril Ramaphosa participates in a dialogue with Colin Coleman, Goldman Sachs' Sub-Saharan Africa's Chief Executive Officer, at the Goldman Sachs' investor conference at the Four Seasons Hotel, The Westcliff in Johannesburg. The conference brought together chief executive officers, chief information officers, chief financial officers and chairpersons of leading companies and financial institutions across all industry sectors from South Africa and other parts of the continent. 15/05/2019, Elmond Jiyane, GCIS

Denigration of the President, the violation of the Constitution and of the rights of citizens and subjects of South Africa

Honourable Ramaphosa

President of South Africa

22 September 2020

In the name of the citizens of South Africa, we hereby table a set of constructive demands. Others are breaking down the country by de­structive demands. In this letter we shall focus only on some basic demands in the sphere of law and the sovereignty of law. In further letters we shall focus on economic development and education.

1. We have demands regarding the neglect and violation of human rights

1.1 It touches us as citizens when the Cabinet and the African National Congress (ANC) acts as if the President of the country does not count. When senior members of the ANC and their families come down like vultures and hyenas on relief funds and state assets, after you have promised more than once that corruption will end, it is clear that your party and Cabinet colleagues despise you. We appreciate the open letter you wrote, but when your Minister of Defence breaks all security and diplomatic protocols and hijacks an Air Force plane to carry members of your party whom few of us have any respect for due to their own records, then she pokes you and the citizens in the eye. It is our plane, and you, being the head of the Defence Force, has been entrusted with this. Even if you do act against her now, the very fact that she dared act in this way all on her own is an insult to you and to the citizens and casts doubt about your ability to lead. All through the lockdown we struggled to figure out whether you are poked in the eye or whether you collude with the ill will of imploding the middle class and the irrational management of taxis and buying and selling.

1.2 Our deepest concern, however, is your grabbing after the straw of “racism rearing its ugly head again” after so much work on inequality. This is the stock story of our lame Human Rights Commission which seems to be on the lookout for racial flies to catch at the detriment of action against very serious trampling on human rights last week by the Economic Freedom Fighters (EFF) and daily by the ANC and other criminals. Last week, the EFF was up to its old game of theatre and terror and blackmail, and your government failed in is duty to protect the public: protection the integrity of the person and protecting property are the basis of all our rights. It is doubtful if the advertisement had been of such a kind as to warrant threats to persons, vandalism, assault of journalists, blocking people from getting to chronic medicine, destruction of property, obstruction of freedom of movement, freedom of expression, threatening “whites” (discrimination with no base at all). The state and its Constitution exists to protect these rights in the first place.

Note, Mr. President, that without blaming Marikana on you, we should have learnt one thing from those tragic events: the moment the first violence occurs, put the situation under guard and hold the leaders accountable and let them call of all action. Last week had us on the brink: Citizens would have had reason to make a firm stand and it could have led to bloodshed.

1.3 We constructively demand in the sphere of the Constitution, law, and application of law an end to submissiveness to the “demand and entitlement culture” of those who back their demands by blackmail and terrorising the public to gain unaffordable freebies and power in areas where they have no authority.

This is a twofold demand: the limitation of intervention by state power formations in non-state formations such as marriage and family, faith communities, educational institutions (even public ones), sports formations et cetera. Such limiting also implies the protection of the autonomous functioning of such formations. We demand that public funds not be used for ideological domination, and that government and politicians abstain from acting as master of all peculiarly human relationships (even where public funding is needed).

2. First demand: Government must focus on its primary responsibility

2.1 We want to practically see that government, through its law enforcement agencies, acknowledges that its primary duty is the safety and security of person and property as it legally now stands and takes action to save South Africa from the scourge of crime in every sphere.

2.2 The Minister of Police and the Commissioner of Police have failed in their primary responsibilities during last several weeks’ terror and blackmail (where an advertisement was used as an excuse for violence). By definition, when innocent members of the public are frightened by political action for publicity’s sake and a moral high ground, it is terrorism and ought to be treated as such. If I understand our laws correctly, when a person or persons attack another person or persons who may have transgressed in some way and demand something favour for himself or themselves, it is blackmail, and blackmail is criminal. If a political party goes out and punishes anybody for some perceived transgression, then this is taking the law into one’s own hands, it is contempt of the whole judicial system. We have had this from members of the EFF and of the ANC at our educational institutions, causing millions in damage which the taxpayer and consumer must foot. Politicians of the EFF and ANC seem to believe that they have policing and magisterial authority to judge and punish and the South African Police Service (SAPS) stand idly by: Thus, our SAPS presides over blackmail, terror, and anarchy by politicians.

It was a serious error on your part, Mr President, when during your election campaign an ex-convict official of your party was allowed to appear on stage with a tire. Using such a symbol in a constitutional democracy should have horrified the President of the country and should immediately have led to disciplinary action within the ANC, but also public warnings that threatening the voters with “necklacing”, metaphoric or not, is terrorism.

2.3 We demand accountability from you, Mr. President (as head of all security formations and chief executive in the Constitution), from the Minister of Police, from the Commissioner of Police, of why we constantly have such failures of duty. (In fact, the Minister and the Commissioner have failed enough now: They honestly should resign.)

3. We constructively demand official recognition of the critical necessity of voluntary civilian support in the legal administration

3.1 We want to be allowed to support the law enforcement structures of South Africa by more voluntary work. During lockdown, it became clearer than ever before that government institutions, for different reasons, do not have the capacity to serve the country. This leaves the citizens and subjects vulnerable and unsafe.

3.2 We want to see experienced lawyers and advocates volunteer in the courthouses to work away the court rolls, files, et cetera. It has already been shown to be an effective way of speeding up processes and relieving the permanent officials to pay attention to more important cases.

3.3 We want to see the same in the prosecution. It is necessary and urgent that senior prosecutors who have become controversial be suspended. There are senior lawyers and advocates who have years of experience of such work, and will surely be willing to revive the court system and the fair execution of law. We need to see the National Prosecuting Authority use every good and honest support from civil society.

3.4 We urgently need to see the police reservists be re-established. Home protection ought to be done by constant patrols and reservists together with police officers. We must control our own neighbourhoods. The presence of members of neighbourhood watches and police reservists would also help prevent easy police corruption and abuse of citizens.

3.5 We need a coordinated volunteer service to support police officers with paperwork, etc. It is clear that police officers spend a lot of time writing statements and filling in forms. Retired people can easily take these off the hands of the police.

3.6 We are concerned about safety and corruption at schools. We want to see a serious revision of discipline at school level (especially where carrying weapons and drugs by learners are concerned); we also want to see the school governing bodies take a more effective oversight role over schools, and less political intervention from provincial authorities.

3.7 We constructively demand subsidy for self-protection. That is: We want to see support for neighbourhood watches, farm guards, et cetera for security cameras, observance posts, fuel and more. The township dwellers need fences and/or movement control in the neighbourhoods. In the long run this will become a saving for government and the country.

4. Demands regarding the appointment of officials in the sphere of law

4.1 We constructively demand that the independence of judges and the court system, Chapter 9 and similar institutions be supported by also having politically independent appointment institutions.

4.2 We want to see the Judicial Service Commission (JSC) consisting of senior lawyers, advocates under chairmanship of experienced judges or magistrates. The actions of politicians in the JSC clearly tend to politicise the appointments.

4.3 We want to see the Public Protector appointed in a similar way. An extended Judicial Service Commission may function quite well for this.

4.4 We want to see non-ideological protection of human rights. The Human Rights Commission is a disappointment for the whole country due to the fact that its approaches are ideologically slanted. Part of this slant may again be lack of a real understanding of the constitutional values and rights, or alternatively too much ideological favouring of the right to equality and victimhood in this sphere. The Human Rights Commission must consist of senior lawyers and or judges appointed by an independent Judicial Services Commission.

It is questionable whether we need a human rights commission: Lawyers, magistrates, and judges are supposed to know the Constitution and are supposed to be able to balance the protected rights. The Human Rights Com­mission can be replaced by human rights judges at provincial High Court level.

4.5 Some parole boards are clearly lacking in the necessary legal sophistication. The newest legislation that allows for input from victims is much too wide and can too easily replace legal and social merit with revenge. Pastors are not judges, and – as in the case of the Human Rights Commission – are not be allowed to act as judges in the legal sphere.

5. Restructuring procedural law

5.1 We constructively demand that procedural law be adjusted urgently. Apart from the dearth of prosecutors and judges, procedural law is too easily abused to delay clear cases. The assault cases against Andile Lungisa and Julius Malema are relevant here. Postponement “for further investigation” in clear-cut cases are unacceptable. Endless appeals of where the appellant takes as long as possible to file the affidavits are cases in which victims and the public do not see justice to be done and the delay of such justice allows violent and criminal people to continue earning salaries, wiping away evidence and be a threat to the public. Even Cabinet ministers are guilty of playing for time: Filing affidavits late, et cetera.

5.2 We want the prosecution for serious crimes to be fair but fast. Investigating officers must ask for help from private investigators. Where scientific evidence such as DNS or pathology reports are concerned: We need to strengthen these specialist sectors urgently. It is clear that affirmative action in these areas has broken down the ability of the law enforcement sector and the courts to act as safeguards of person and property.

5.3 We constructively demand that only very serious appeals that have some constitutional implications be sent through to the Constitutional Court. Approaching the Constitutional Court directly with artificially concocted “constitutional issues” must not be allowed. A High Court must be able and authorised to judge whether there may be a constitutional side to a case. Only in such cases must an appeal to the Constitutional Court be allowed.

5.4 We constructively demand, regarding the right to protest, that the legislation or regulations immediately be reviewed. Firstly: When a leader uses media like Twitter to send instructions to “attack” somebody or an institution, then such a message must be considered as riotous, threatening, and potentially violent, and both the sender and the medium must be held accountable both civilly and criminally. Secondly, where a legal protest is organised, the leadership must inform the police at least 24 hours in advance, must appoint their own guards who must ensure none of their protesters break ranks; must make their ranks recognisable by a scarf or similar clearly visible identification. It is up to the organisers to have a list of their participants and to ensure that foreign elements do not enter into their rank and file. Protesters are to be held accountable for any violation of non-protesters’ rights: Damage to property, obstructing of free movement, attacking the press, assault, intimidation, et cetera. The leaders must take responsibility for any all transgressions.

5.5 We constructively demand that members of Parliament and government who instigate illegal extra-parliamentary actions that include vandalism, violation of property right, violation of constitutional provisions, must be held accountable summarily before a High Court or the Constitutional Court as well as possible criminal prosecution in the light of 5.4 above. Disciplinary action at every level of government against anti-constitutional and illegal actions (that violate any right of ordinary subjects of the state), must be severe.

5.6 We constructively demand respect for our courts by banning explicit propaganda inside and for 200 meters around court buildings similar to that around voting stations. Support for victims must not be politicised.

6. Concluding note

Note, Mr President, we remain constructive in support of the country under very difficult circumstances. Many citizens are in despair. The brain drain is strong because we live in fear. We even fear our government. The above demands are a form of constructive and legal protest. We want our country back from criminals, and we do not want to be forced to take into our own hands.