Letter: No special protection for president - Business Day, 10th July 2012.

The Institute's Head of Special Research, Dr Anthea Jeffery, argues that Zapiro's main offence is not disrespecting the office of the president but rather that the insight he has offered with his controversial cartoon "cuts far too close to the bone".

Jackson Mthembu, spokesman for the African National Congress (ANC), has condemned Zapiro’s cartoon in the Mail & Guardian on July 6 as "offensive, demeaning and insulting to President Jacob Zuma ", his family, and the entire ANC "membership and leadership".

Mr Mthembu also says "there is a lot" that Zapiro needs to "learn and appreciate" about what the bill of rights contains, "particularly the right to human dignity and the respect to the Office of the State President" (sic). The bill of rights says nothing about the latter, which seems to be Mr Mthembu’s own addition. It does, of course, say that "everyone has inherent dignity and the right to have their dignity respected and protected". But it also makes clear that "everyone has the right to freedom of expression, which includes freedom of the press and other media … and freedom of artistic creativity".

What the ANC wants is for Mr Zuma’s right to have his dignity respected to trump Zapiro’s right to free expression. However, these rights should not be in competition with one another. The only reason they seem to be in conflict stems from a sleight-of-hand on the ANC’s part during the constitutional talks.

Contrary to constitutional norms elsewhere, the ANC insisted that our bill of rights must have not only a vertical application — allowing citizens to invoke it against abuse of power by the state — but also a horizontal application, which would make it binding on ordinary people as well. As the South African Institute of Race Relations warned at the time, this fundamentally changed the very nature of our bill of rights. In part, of course, it still provides a shield against the state — but in part it also turns it into a sword in the hands of the executive.

In a normal constitutional democracy with a normal (vertical) bill of rights, Mr Zuma might be able to sue Zapiro under the common law of defamation, but he would have no constitutional right to invoke against him or the newspaper.

Zapiro, by contrast, would have a right to free expression and artistic creativity to rely on in commenting on the president’s conduct.

But because the right to dignity is seen as having horizontal application, Mr Zuma now seeks to invoke it against Zapiro and the Mail & Guardian. In return, the cartoonist and the newspaper will no doubt seek to rely on their guaranteed rights to press freedom against curtailment by the state.

Horizontal application thus limits media freedom and allows the president to invoke the constitution against two private persons. This makes a travesty of the protection a bill of rights is supposed to provide to ordinary people. It also pits one guaranteed right against another — and leaves it up to the courts to decide which right ought to prevail in the particular circumstances of each particular case.

The degree of discretion this gives to the courts makes it all the more disturbing that Mr Zuma — and many senior figures in the ANC — have been putting so much pressure on judges to make their judgments conform with what the ruling party wants.

Mr Jackson’s hostility is also not because Zapiro has breached a mythical constitutional duty to respect the office of the president. Zapiro’s main offence is not this, but rather that the insight he offers — like Brett Murray’s painting of The Spear — cuts far too close to the bone.

- Dr Anthea Jeffery

 

(To read the letter on the Business Day website, please click here.)

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