Xenophobia. What should government do

2015-04-16 06:16

President Zuma and his cabinet are in a quandary. No amount of condemnation can calm the waters of xenophobia. Add to that are the spate of vandalism associated with the desecration of statues and monuments. As if that is not enough, labour unrest looms whilst load shedding is fast becoming the albatross around the neck of President Zuma. In the words of Henry the Fourth, “uneasy lies the head that wears a crown”.

The latest, at this time of putting this together is that the President of Malawi has seen it fit to cut short his visit to US to fly to SA for talks with President Zuma around concerns that Malawians are the highest number of victims. Malawi, Nigeria and other African countries contemplating recall ambassadors and cutting trade. Like King Henry IV, President Zuma is feeling tired,sick,guilty and is beset by rebellion and yes, whilst the even the vile of his ‘realm’, after hours of drudgery and skulduggery can in ‘their loathsome beds’ get a good nights sleep,President Zuma cannot. Neither can we. So what should he do? Resignation is not an option for that would please his detractors and howling critics singing the Nkandla dirge out of tune. We have an immediate existential problem. What should the President do? Let’s see if we can , as good citizens, unfold our hands and rather than point fingers, join him and help him in suggesting a solution to the immediate threats posed by xenophobia. As a first hand witness to what went down in Durban Central the other day, I say that he must with steely resolve show his hand and stop what is going on. Deploy the army? So, what should he do? Deploy the army? Not so easy that for there is the Constitution and the principle of rule of law to which government is committed. Yet, this is the call that many a citizen understandably  makes. We must be careful so as not to easily succumb to this temptation for it could set a precedent for the very evils that the Constitution was ratified as the grundnorm of our country to eradicate.  When the NATS went down that slippery road there was a bloodfest whose impact still echoes to this very day. Declare a state of emergency?

As we wring our hands in despair there is a provision in our Constitution that allows for exceptional measures to be taken by the President, at the behest of Parliament, to declare a state of emergency in KwaZulu-Natal or any part of the country where the very existence of our constitutional democracy and the life of the nation needs protection. He can, in terms of section 37 summon Parliament and get a law passed for three months at a time permitting extraordinary measures to be taken to restore peace and order but bear in mind that whilst government can arrest and detain those who threaten the very stability of our country and peace order, our courts still retain the constitutional power to supervise and, if necessary, override excessive measures and given the fact we have a strong and pro-active judiciary this is a plus.

So yes, he can deploy the army as peace keepers and order restorers but not as enforcers of law and order for that constitutionally remains the domain of the institutions established under the Constitution.

I reiterate, he cannot declare a permanent state of emergency but for periods of time and if the period needs to be extended then he needs parliamentary approval of at least 60% voting in favour. Whilst that is permissible there are certain rights in the Bill of Rights that are non-derogable especially rights pertaining to the right to life, the rights of arrested persons, human dignity and freedom of security of persons. These rights cannot be taken away and remain sacrosanct at all times. International human right organisations have the right to monitor and access those detained during the state of emergency. I repeat our courts remain as the bulwark against excesses that can occur. Are we facing exceptional circumstances? Is the life of our nation being threatened? In my opinion, yes to both. Starting with the issue of statues and monuments we have agent provocateurs riding on the coattails of the discontented populace facing lack of jobs, poor service delivery, crime and corruption and a limp wristed response to all of the above, who have lit the fuse and we have authorities dithering about how to douse the flames being fanned and spread like a wild bush fire. Whilst we wring our hands and stage ‘protest marches’ lives and lawful properties of foreigners are being looted and lost and, understandably calls for the President to deploy the army are growing louder by the minute. Supporting international jurisprudence

Pictures of police men in riot gear and armed watching and doing nothing whilst human beings were being set of fire is a shocking reminder and a wakeup call that we are indeed facing an exceptional threat that requires strong measures since the current limp wristed efforts are having no effect. The European Court of Human Rights has well established and tested jurisprudence that in such circumstances the President and his government must urgently debate the issue in Parliament, obtain the necessary power in terms of the State of Emergency Act No 64 of 1997.

So the time for pontificating, Mr President, is long past midnight. We are facing a dawn of insurrection short of civil war.

He knows what has to be done.

Saber Ahmed Jazbhay

Thursday 16.4.2015


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