Julius Malema’s “war talk” forms part of a pattern of conduct of a fascist nature displayed by the EFF, says George Devenish.
It has been reported in the press (The Star: “Cops to probe Juju over his war talk”, April 26) that the police have confirmed that they are investigating Julius Malema for declaring on the Al-Jazeera network that he would remove the government through the barrel of a gun if necessary.
This follows the laying of a charge of high treason by the ANC against him for this statement in which, in effect, he declared that he would take up arms against the government if needs be.
High treason is the most serious of all crimes and, according to a police definition, it consists of any conduct committed by a person owing allegiance to the state with the intention of:
(a) Overthrowing the government of the Republic;
(b) Coercing the government by violence into any action or inaction;
(c) Violating, threatening or endangering the existence, independence or security of the Republic;
(d) Changing the constitutional structure of the Republic.
High treason is a widely defined common law crime that has its origin in the British legal system, which we have adopted.
Malema’s actual words in the Al-Jazeera interview were that his party would remove the ANC “through the barrel of a gun”.
He also declared that “Zuma is not going to intimidate us. We are not scared of the army, we are not scared to fight. We will fight – yes, literally, we will fight”.
The ANC, DA, Cope and UDM have all condemned the EFF leader’s war talk. The DA also accused Malema of inciting violence with his comments.
In the notorious Boeremag trial, Judge Eben Jordaan rejected the argument on behalf of the accused in this case that the common law crime of high treason was so wide that it violated several rights guaranteed by the constitution.
In South Africa’s traumatic and tragic history there have been many prosecutions for high treason and related issues such as sedition and sabotage – the most notorious being those of the Treason Trial of 1957 and the Rivonia Trial of 1964 involving Nelson Mandela and other ANC activists.
Although prima facie Malema’s statement that his party would remove the ANC government “through the barrel of a gun” appears to fall within the ambit of the definition of high treason as set out above, the State has a discretion to prosecute or not to prosecute in relation conduct falling within the ambit of the definition of criminal conduct of any kind, including high treason.
This will depend on a variety of considerations, both legal and political.
What is clear is that this incident forms part of a pattern of conduct of a fascist nature, displayed by the EFF, which it has been involved in, involving disruptive behaviour in Parliament, since August 2014, when its members disrupted President Zuma in answering questions in the National Assembly.
What is categorically clear is that, because South Africa is a constitutional state, premised on the rule of law, threats of violence by political leaders are unacceptable and in manifest conflict with the letter and spirit of the Constitution and its values.
Furthermore, it also appears that Malema has violated his code of conduct as a MP by his belligerent statement, concerning which he is answerable to Parliament, which is duty bound to investigate and take any necessary punitive action.
Malema’s conduct in general is also manifestly inconsistent, in that he championed the cause of constitutionalism in relation to the Constitutional Court’s judgment in the Nkandla judgment, but by implication rejects this philosophy with his “barrel of the gun” statement in the Al-Jazeera interview.
In the robust political discourse in South Africa in the run-up to the election in August, it is imperative that violence should be eschewed.
We are a constitutional democracy and the conduct of all the roleplayers must be undermined by a basic discipline to pursue our political actions and utterances in a peaceful and lawful manner.
Malema and his party appear to reject any such discipline.
This poses a serious problem which must be handled firmly but correctly.
This is a challenge to our constitutional dispensation since it is submitted that freedom of political expression, however important, cannot be used to subvert the foundations on which the constitutional state is built.
Although the EFF and its members are entitled to the rights as set out in the Bill of Rights, when it as a party or its leader abuses the freedom accorded to it in the constitution, it must be called to account in no uncertain terms.
Liberty is not licence and the cost of liberty is “eternal vigilance”.
South Africans, having crafted and adopted an exemplary constitution at inordinately great cost, cannot permit its values and substance to be subverted by predations, or indeed by those in the body politic who have an unscrupulous desire to use violence, or a threat of such violence, to advance any political agenda.
* Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.
** The views expressed here are not necessarily those of Independent Media.