The judge, the president and the cartoonist

BY ZACKIE ACHMAT (for Writing Rights)

Justice Albie Sachs has struck a violent blow at freedom of expression. In a speech in Durban at “The Time of the Writer Festival”, Justice Sachs (a retired Constitutional Court justice) spoke of one of the most important legal matters before our Courts: the case of President Jacob Zuma against cartoonist Jonathan Zapiro. This speech should be studied by those who value democracy and justice.

In the speech, he says that somebody asked him:

"Justice Sachs, what do you think about the cartoon by Zapiro depicting president Zuma about to rape the female form of justice?” I said “I’m sorry but I’m a judge and President Zuma is suing Zapiro, and I can’t respond to that, the matter could come before the Court".

Whether one agrees with his conclusions or not, any reasonable person who reads “the Sachs speech” will see his declaration of legal neutrality as disingenuous. (See full text of “the Sachs Speech” below)

Justice Sachs first describes the terrible tragedy of the car bomb that severed his right arm. The bomb was planted by the South African security forces. Ruth First and Dulcie September were killed by such bombs; the Truth Commission tells us of many terrible atrocities against Matthew Goniwe and others over the half century of apartheid.

Then, “the Sachs speech” garners sympathy for President Jacob Zuma by recounting their shared joke about his bombing in the presence of the late John Nkadimeng who had known Sachs’s father. Sachs tells us that Zuma and Nkadimeng were sent to visit him by Oliver Tambo (the ANC leader in exile). Apparently, the story Sachs told of the bombing’s aftermath almost let Jacob Zuma fall of his chair with laughter.

He also tells a story of a meeting with Jacob Zuma at his home with Nkosazana Zuma (then the President’s wife). Again, he paints a picture of domesticity in exile with Zuma doing family’s laundry.

Justice Sachs’s recollections are probably accurate but he uses the mataphor of a “Jewish joke meeting up with humorous storytelling in the African way” to win our sympathy for current President Jacob Zuma. That President Jacob Zuma was a freedom fighter who sacrificed cannot be denied; just as the loss of Justice Sachs arm is one of the most painful reminders of sacrifices made by many. Recounting past events is important. However, Justice Sachs’s speech misappropriates the sacrifices of countless people in our liberation struggle for a different purpose and to a dangerous end.

After telling us that he admires both the President and the cartoonist, Justice Sachs (who identified both litigants) speaks of the offending cartoon. The Judge uses President Zuma’s suit against Zapiro to introduce the important topic of freedom of expression, human dignity and defamation. Justice Sachs also consciously racialises his comments.

"I’m dealing with what seems to be a witty sharp political observation by a satirist of great calibre and great personal courage. Can we laugh at or bring a smile or a sense of satisfaction to people at looking at a cartoon that might be deeply wounding to millions and millions of other people out there, decent ordinary people who feel we might criticize President Zuma, poke fun at lots of things that he does, but still recognize that he is our President. In their view, you don’t depict the President of the country about to open his fly, with Ministers at his side urging him on, with a woman lying prone and helpless in front of him. For millions of our people that kind of scene is reminiscent of the stereotype of the black male rapist. It ravages the soul, the issue is deep, it’s hard, it’s sharp".

“The dogs bark and bite, even in cartoons. They inflict wounds in the silent soul. They bark as they tear the soul apart.” These are the words of Mongane Wally Serote that Justice Sachs uses to criticise Zapiro’s cartoon that identifies the rape of justice. The justice seems unaware that the cartoon had a context that was serious and no laughing matter. Every thinking person who looked at it would have found its depiction deeply discomforting. It concerned the President of the ANC (not the country) escaping a trial for corruption in the Arms Deal because his predecessor President Thabo Mbeki had manipulated the judicial system against his rival.

Executive lawlessness was a norm in the Mbeki administration and the majority of thinking people in the country feared that the state would become corrupt while the independence of the judiciary was being undermined. Justice Sachs also ignores the fact that the Court on which he served twice turned down appeals by President Zuma to stop the legal proceedings for corruption; he fails to mention that the entire judiciary was brought into disrepute when Western Cape Judge-President John Hlophe attempted to intervene on the President’s behalf with Justices of the Constitutional Court.

Justice Sachs himself is a party to that complaint which is still a live issue before the Courts.

The greater tragedy is that this intervention by a retired Justice of the Constitutional Court invoked a recent precedent of that Court to bolster his argument.

"Now I stress, I’m not dealing with the legal side. Interestingly enough just this week there was a case in which the Constitutional Court said that in matters where defamation and dignity are involved, a court should strive wherever possible to get an apology rather than put a money value on the indignity imposed. Possibly something could emerge from that. It’s painful for me personally. I mentioned Jacob Zuma coming to see me after I came out of hospital. I remember him on another occasion telling me how poignant it was when he came out of Robben Island prison and went to his mother; a working class woman, in a township in Durban".

The issue here is not the “pain” of Justice Sachs, or the sacrifice he and President Zuma made in the liberation struggle. Central to the question of a free press (a cartoon published in the Sunday Times) is a President who had been accused of corruption, failed in the courts to have his charges dropped and then was able to cut a political deal.

The argument Justice Sachs used of speaking to writers and “not as a judge” is spurious. He cited litigants, he identified the issue between them, he cited two precedents and took sides. Justice Sachs could have written a great lecture about freedom of expression and dignity without once mentioning Zapiro or the President but he did not.

Judges must speak out on issues and Justice Sachs often does. Justice Sachs could have written a great lecture about censorship and dignity. However, a judge (retired or not) should not simply be circumspect in speaking about cases that are live before courts; they should avoid discussing them until the matter had run its course. This is not “self-censorship”, it is restraint and restraint is a key element in a judicial temperament.

Justice Sachs uses his enormous authority not simply as a judge but as a freedom fighter to attack a cartoonist and freedom of expression. The questions that must arise in any reasonable person’s mind after reading the “Sachs speech” are these: Why this case, why now; to what end; and what impact will it have on a case that will not simply affect media freedom but good governance, an independent judiciary and the rule of law?

Justice Sachs has done great damage to our democracy with his sentimentalism arguing that it is “painful for me personally” does not do justice to the very important questions of freedom of expression, dignity and the rule of law.

Zackie Achmat (Ndifuna Ukwazi/Writing Rights)

Posted on Apr 11, 2011 by Africartoons