Monday, September 10, 2007

Dali Mpofu should rather not dabble in constitutional law

It’s a good thing Dali Mpofu, Group CEO and Editor-in-Chief of His Masters Voice also known as the SABC has stopped arguing constitutional law cases because he obviously has no clue of how to interpret the Bill of Rights.

In his letter announcing the SABC’s resignation from the South African National Editors Forum (SANEF) he argues (quite correctly) that at the heart of our Bill of Rights is the protection of human dignity and that most rights flow from the understanding that peoples’ human dignity should be respected and protected.

But then he makes a logical jump: human dignity must trump the right to freedom of expression and newspapers therefore never have the right to publish things that would affect the personal dignity of an important elected representative like our beloved Minister of Health.

We cannot remain quiet while our mothers and our democratically chosen leaders are stripped naked for the sole reason of selling newspapers.

The problem is that Dali – like many lawyers still stuck in the pre-constitutional common law paradigm – confuses the personal subjective dignity of an individual usually protected by the common law and the very different objective constitutional right and value of dignity.

The constitutional notion of dignity flows from the assumption that every individual has an inherent human dignity because he or she is human being. The apartheid government did not respect this dignity because it denied individuals the right to moral agency and thus the right to define for themselves who they are and how they want to live their lives. If one denies people the right to an identity, one denies that the person has an inherent moral worth and thus deny that person her dignity.

Protecting a person’s dignity in the constitutional sense therefore has very little to do with ensuring that important politicians do not have their feelings hurt by the truth - the common law of defamation takes care of that potential harm in appropriate cases. The Constitution, on the other hand, deals with a far more profound and important notion of dignity because it aims at creating a society in which each human being’s humanity is equally respected – whether one is a mother of the nation, an elected official, a homeless DA supporter or even Dali Mpofu.

This notion of dignity is aspirational and deeply optimistic. It suggests that humans are so special that we should respect their moral agency equally so that they can decide for themselves who they are and how they want to live. In short: a society where the equal moral worth of all will be respected.

But we cannot decide for ourselves how to live and who we are, we cannot begin to have moral agency, if we are not informed by the media about what is happening in the world and what our options are. To suppress information of public importance is to treat people like children and hence to disrespect their human dignity.

Politicians and boot-lickers of the powerful and influential who claim that their personal subjective dignity should trump the objective, more profound, dignity protected in the Constitution, are therefore self-serving charlatans hiding behind a completely false understanding of the Constitution.

The constitution protection of the dignity of every person therefore demands that we protect the vigorous, critical and fearless media from interference by self-serving politicians and other higher ups.

What people like Dali Mpofu really seem to think is that the Constitution should protect politicians and others important people from the truth – especially where the truth would reflect badly on that person and may reveal that the person is incompetent, corrupt, dishonest, craven or just plain stupid. Such revelations would obviously be personally hurtful and would affect the persons subjective dignity, but it would have nothing to do with the Constitutional concept of dignity.

To argue otherwise is obviously dangerous and perverting of the Constitution and should be resisted at all cost.


Anonymous said...

The "right to dignity" clause has never stood right with me. It's so vague and wishy washy it seems to have been put in the constitution for no other reason than to make people feel good.

In reality all it does seem to be used for is suppressing media freedom. Judge Mohamed Jajhbay quoted this "right" when he blocked the Sunday Times from publishing the Danish/Mohammed cartoons. Exactly whose dignity was being attacked , considering the subject of the cartoons has been dead for over a thousand years, was never exactly spelt out. Have their been any other cases where the "right to dignity" was referenced?

If government was serious about protecting the right to dignity as enshrined in the constitution then surely the Dept of Health would be swooping through our rural areas scooping up dying AIDS patients from ramshackle mud huts where they die alone and placing them into well funded hospices... right?

Pierre de Vos said...

In Dawood v Minister of Home Affairs the Constitutional Court relied on the right to dignity to declare invalid that section of the Aliens Control Act which allowed Home Affairs Officials to send the foreign spouse of an SA citizen back to their country to go and apply for a residence permit there. The Court said the right to dignity implies a right to marry and to family life and to send people away from their spouse and family would infringe that rights. The Court thus used the right to dignity to "invent" the right to family life....

Anonymous said...

The word 'dignity' has its root in the Latin 'dignus' (worthy). It can mean many things, as in the dignity of labour; beneath one's dignity; stand on one's dignity etc. In my view, 'dignity' is more often than not confused with 'self-esteem', which is not the same as 'self-respect'. And, surely, self-respect is something no-one should be able to take away from me.