Zuma’s trousers (from 2012)

Trousers of Zuma must be de­clared a Key Point

Business Day, 25 May, 2012

 An­thony But­ler

FOR­MER pres­i­dent Thabo Mbeki once com­plained in­el­e­gantly but with some jus­ti­fi­ca­tion that Euro­peans have con­ceived of Africans as “ram­pant sex­ual beasts … un­able to keep it in our pants”. De­spite this pres­i­den­tial prece­dent, it is dif­fi­cult to be­lieve that Pres­i­dent Ja­cob Zuma was per­son­ally trou­bled by Brett Mur­ray’s depic­tion of him.

Mur­ray’s art­work has now gen­er­ated pro­found re­ac­tions across South African so­ci­ety — but of course it could not have done so sim­ply spon­ta­neously.

How then can we un­der­stand the po­lit­i­cal decision by Zuma’s ad­vis­ers — taken af­ter some days of re­flec­tion — to mo­bilise the deep sen­ti­ments that sur­round con­cep­tions of sex­u­al­ity?

First, Zuma has been un­able to shake off neg­a­tive per­cep­tions about the en­rich­ment of his rel­a­tives, the e-tolling saga, and the lead­er­ship of crime and jus­tice in­sti­tu­tions. The Mur­ray con­tro­versy has pushed these is­sues to the side­lines and po­si­tioned Zuma once again as a vic­tim.

Sec­ond, Zuma’s team has used racial sol­i­dar­ity to trump valid con­cerns about the trib­al­i­sa­tion of the African Na­tional Congress (ANC). Last week Zuma was the head of an in­cum­bent eth­nic fac­tion; to­day he rep­re­sents all Africans in their strug­gle against white de­hu­man­i­sa­tion.

Third, Zuma’s ad­vis­ers are lay­ing down a pat­tern of com­plaint around the pres­i­dent’s “right to privacy”. If Zuma leaves crit­i­cism of his sex­ual be­hav­iour un­chal­lenged, he might be un­able to counter sex-re­lated ex­posés in the days im­me­di­ately be­fore the Man­gaung elec­tive con­fer­ence. Zuma’s team ap­pears es­pe­cially pre­oc­cu­pied with how legally to re­strain the news­pa­per that most promi­nently re­pro­duced the paint­ing.

The ANC has claimed “this dis­taste­ful depic­tion of the pres­i­dent has vi­o­lated his in­di­vid­ual right to dig­nity as con­tained in the con­sti­tu­tion of our coun­try”. Many le­gal com­men­ta­tors ap­pear un­trou­bled by the po­ten­tial im­pli­ca­tions of the right to dig­nity. They in­di­cate that the pres­i­dent is less fully pro­tected by such a right than an or­di­nary man or woman be­cause of his vol­un­tary ex­po­sure to public scru­tiny. Le­gal scholar Conor O’ma­honey, how­ever, has high­lighted con­sti­tu­tional con­fu­sions that can arise where dig­nity is treated both as a prin­ci­ple and as a right.

In most le­gal sys­tems, dig­nity is un­der­stood as a fun­da­men­tal prin­ci­ple that un­der­pins hu­man rights law. Hu­man be­ings pos­sess dig­nity by virtue of their hu­man­ity, and their equal and in­alien­able rights de­rive from this in­her­ent dig­nity.

In the South African con­sti­tu­tion, dig­nity is in­deed un­der­stood in just this way. It is also, how­ever, con­fus­ingly de­scribed on four oc­ca­sions as a right in it­self, and Sec­tion 36 ap­pears to sug­gest that the right to dig­nity can­not be sub­or­di­nated to any other right. Par­lia­ment has al­ready passed an Equal­ity Act that pro­hibits hate speech — so cur­tail­ing the right to free speech — in part it seems to de­fend the right to hu­man dig­nity. It seems pos­si­ble that less gifted judges travers­ing this in­tel­lec­tual mine­field may yet trig­ger un­pre­dictable le­gal ex­plo­sions.

Pop­u­lar af­front at the por­trait has been linked re­peat­edly to Zuma’s po­si­tion as state pres­i­dent. His dig­nity ar­guably em­bod­ies, or at least sym­bol­ises, the dig­nity of other, es­pe­cially black, cit­i­zens. His spokes­men have de­lib­er­ately con­flated the pres­i­dent’s right to dig­nity with the right to dig­nity of the in­di­vid­ual who hap­pens to be pres­i­dent.

A pres­i­dent’s dig­nity is al­ways hard to sep­a­rate from mat­ters of state au­thor­ity. One pri­vate re­ac­tion to Mur­ray’s por­trait was that the pres­i­dent’s trousers should hence­forth be de­clared a strate­gic in­stal­la­tion un­der the 1980 Na­tional Key Points Act. The gar­ment would then be sub­ject to an­nual se­cu­rity com­pli­ance au­dits; pho­to­graphs or draw­ings of the Key Point would be pro­hib­ited; and in­for­ma­tion about “ac­cess and egress” in­ci­dents could be re­vealed by the news me­dia only with the writ­ten per­mis­sion of the min­is­ter of safety and se­cu­rity.

Dig­nity is un­for­tu­nately et­y­mo­log­i­cally as­so­ci­ated with qual­i­ties such as majesty, deco­rum, great­ness, and in­vi­o­la­bil­ity that can eas­ily be con­strued as the in­her­ent at­tributes of ev­ery state pres­i­dent.

But­ler teaches pol­i­tics at Univer­sity of Cape Town.