The anti-democratic demagoguery of LeadSA
by The Editor
FEATURE: In a mindless bit of populism and in response to the horror rape and murder of Anene Booysen LeadSA has called for bail for rape suspects to be abolished. That is a profoundly ignorant and anti-justice notion that runs directly against those rights established in the constitution. Were it to be acted upon, we would take the first step down a slippery slope that would pervert the criminal justice system itself. It is indicative of an unprincipled organisation with no sound moral compass.
The anti-democratic demagoguery of LeadSA
By: Gareth van Onselen
4 February 2013
Yesterday LeadSA spokesperson Pippa Rowles was quoted as saying on behalf of the organization and in response to the horror gang-rape, mutilation and murder of Anene Booysen (17) the following:
“It is necessary to demand a series of actions including no bail for rape suspects, harsher and mandatory sentences for rapists, a speedier justice system and more easily-accessible resources to assist victims.”
[The full statement can be found here.]
The suggestion that we do away with bail for rape suspects is a deeply disturbing and irresponsible statement from an organization that clearly has no sound moral compass or principles outside of whatever public outrage has it in its grip at any particular time.
First, I suspect it is important to place on record my position on the gang-rape in question, because the sheer brutality and inhumanity of that act and the emotions it generates can detract from the issue at hand. It was an act of absolute savageness, the full extent and effect of which cannot be properly fathomed, it is simply too ghastly. Those responsible should be caught and prosecuted and the punishment should be the absolute maximum possible under the law. It was a profoundly sick attack, by profoundly sick people and in no small part inevitably symptomatic of a generally sick society.
That said, the notion that we should do away with the right to bail for rape suspects – and the key word here is ‘suspects’ – is abhorrent and anathema to the principle of justice and equality before the law. It represents the attitude of a democratically ignorant organization that cannot distinguish demagoguery from best democratic practice, or constitutionalism from moral outrage. LeadSA should be ashamed and, if it has any real sense of responsibility to South Africa or the greater good, it should retract that statement.
Every suspect, whether a possible rapist or mass murderer, has the right to bail, if the evidence and interests of justice permit it.
Section 35 (3) (h) of the South African Bill of Human Rights states that every accused person has a right to a fair trial, which includes the right “to be presumed innocent”. And section 35 (1) (f) that every person arrested for an alleged crime has the right “to be released from detention if the interests of justice permit, subject to reasonable conditions”.
The constitution thus demands, from first principles, that every accused person be assumed innocent before the law until otherwise proven guilty and, unless there exists compelling evidence to the contrary, has the right to bail and cannot be detained without reason or cause (in other words, subject to the limitations clause).
Were this not the case, were the charge of rape enough to arrest and hold an accused person for trial, the door to false accusation and a fundamental abuse of the criminal justice system would be opened. Anyone could lay a charge of rape against any other person and, on that basis alone, they could be imprisoned (in South Africa, with a desperately under-resourced court system, no doubt for a substantial period of time) ahead of a trial to determine their guilt or innocence.
As things stand, if there exists powerful circumstantial evidence, a court can deny bail, but the state needs to make that case, in order to overcome the first principle right – that everyone is assumed innocent until proven guilty. That principle is a cornerstone of our justice system and a basic human right South Africans have fought and sacrificed so much for. To remove it would be to take the first step onto a slippery slope that ends inevitably with the outright abuse of power.
For LeadSA to call for it to be abolished is deeply irresponsible. Despite being an organization that claims to protect and uphold the constitution, and which holds some significant public sway, such a call suggests it lacks both basic democratic principles and understanding.
It is worth asking why that is. For one, LeadSA is little more than a marketing campaign. Certainly it has no ideological belief system or principled set of guiding values. It responds to public sentiment and so, when push comes to shove, it is no more able to distinguish right from wrong, moral from immoral, than the front page of a tabloid. LeadSA is South Africa’s ultimate tabloid newspaper.
And you could make the case that LeadSA being asked for comment by those institutions it partners with is unethical too. Rest assured, none of the newspapers or radio stations it is aligned with will critically examine this appalling sentiment. In a modern democracy, such a primitive suggestion that we do away with ‘innocent until proven guilty’ principle would be pilloried. But LeadSA tries to influence both our moral code and the way that code is reported on, so it will no doubt act to protect itself from any serious interrogation.
The truth of the matter is that, such is the force of political correctness in South Africa, under the guise of patriotism and with the aid of hysteria, LeadSA gets away with a relentless stream of moralizing. It uses panic to justify anti-democratic and illiberal sentiment. Well this time it has gone too far. Anyone with a real commitment to democracy and constitutionalism should speak out against this proposal and the unprincipled and anti-democratic sentiment that informs it.
- Gareth van Onselen (@GvanOnselen) is the Editor of Inside Politics (@insidepols), Winner: Best Political Blog 2012.
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The simple solution is to keep it as it is in the constitution. However if the person has a criminal record then automatically no bail is applied.
One just has to listen to the way John Robbie cuts off legal argument when he has a sentimental interest in a topic. He often loves sensationalizing things that are not even really newsworthy
I received the comment below via email, and thought it worth posting to the site:
While I agree with Gareth in condemning rape in the strongest of terms and in his concern for the rights of suspects, I believe there are two other aspects he has not dealt with:
(1) Bail is not the punishment but should be the reflection of the risk of the suspect not being duly tried whether through flight, injury by self or others, trying to contact witnesses, or some other reason. Anecdotally, there seems to be a widespread public ignorance of the distinction between bail, the verdict and the sentence. Like verdicts and sentencing, bail-setting is best left to independent courts hearing all the evidence rather than being decided by populist politicians. That’s what the Rule of Law implies.
(2) Human rights are indivisible. Even when found guilty, rape suspects have certain rights, such as not being executed, not being castrated, not being “locked up and the key thrown away” or other punishments sometimes suggested on news sites by righteously indignant citizen-commentators or armchair jurists, *and* receiving humane treatment. A Human Rights Society must extend its rights to even the most reviled “others” and that even those we dislike the most are protected by those rights, even if it offends at first glance – as in “why do convicts have more rights than victims?” This is analogous to the “I do not agree with what you say, but I will defend to the death your right to say it” attributed to Voltaire. The alternative is to risk being caught in a Niemoller slippery slide (where initially the rights of gypsies, Jews, the insane, the weak, or other deemed undesirables don’t count) towards another apartheid society where “some animals are more equal than others” [Animal Farm].
The Rule of Law (i.e. a Human Rights Society) is the antithesis of mob justice. Finished & klaar.