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We accept your invitation to address the Portfolio Committee on International Relations and Cooperation on the issues raised.
Dear Mr Mahumapelo,
We have taken note of the statement issued by you on behalf of Parliament on 19 October in response to my open letter to the Minister of International Relations and Cooperation, Mr Ronald Lamola.
Let me begin with the most important point: We accept your invitation to address the Portfolio Committee on International Relations and Cooperation on the issues raised.
You state that Lex Libertas should present its evidence on farm attacks, property rights and transformation legislation publicly before Parliament, under oath and subject to questioning. You further state that the committee's invitation to engage is genuine and that Parliament is an appropriate forum for evidence and counter-evidence.
We welcome this.
Lex Libertas is prepared to appear before the Committee and to present the evidence underpinning our international campaigns, and in particular the White Cross Project and its campaign report. We are prepared to answer questions, defend our conclusions and subject our claims to scrutiny.
We would also encourage the committee to invite other experts who addressed the White Cross Project Conference in Washington, D.C. on the abovementioned issues. A serious parliamentary engagement would be strengthened, rather than weakened, by hearing a range of informed perspectives.
If the committee is sincere in its invitation, please advise us of the proposed process, format and possible dates. We will participate.
In my letter to Minister Lamola, I said that if Lex Libertas has spread misinformation, identify the statement, provide the evidence and allow us to respond.
In your statement, you attempted to do exactly that. We welcome this.
However, if we are to have a serious discussion about truth and misinformation, the first requirement is that our actual claims be stated accurately. One does not disprove an argument by replacing it with a more extreme argument that was never made, and then responding to the fabrication.
Several of the examples in your statement unfortunately do exactly that.
Before turning to those examples, there is one constitutional point that requires correction.
Your statement says that freedom of expression under section 16 does not include propaganda for war, incitement to imminent violence, or advocacy that deliberately misrepresents the country for material advantage.
That is not what section 16 says.
Section 16(2) excludes three categories of expression from the protection afforded by section 16(1): propaganda for war; incitement of imminent violence; and advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm.
There is no provision in section 16 excluding speech because government regards it as misinformation, because it damages the country's reputation, or because it is allegedly advanced for material advantage.
That does not mean freedom of expression is unlimited. Rights protected by the Bill of Rights may, in appropriate circumstances, be subject to limitations that satisfy the requirements of section 36. But that is a different proposition from inserting an additional exclusion into section 16 that simply is not there.
This distinction is of particular importance in a debate that includes concerns raised about incitement of violence directed against particular sections of society (the part left out in your reference to section 16), and about whether political criticism should attract punitive consequences (the part erroneously included in your reference).
Your latest statement also appears to represent a material change, or at the very least a significant clarification, of your position regarding citizenship.
You now state that no one proposed withdrawing citizenship merely because someone holds a different political view, and later add that your call for consequences was not a call to strip citizenship ‘arbitrarily’.
We welcome any retreat from the suggestion that citizens could lose their citizenship because of international advocacy.
However, this is difficult to reconcile with the original reporting of your intervention. Eyewitness News reported on 8 October that you had proposed legislation that would allow citizenship to be stripped, in the same report in which Lex Libertas and several other organisations were specifically named. If you believe that report materially misrepresented your remarks, the appropriate course would be to seek a correction from Eyewitness News or to approach the Press Council.
Yet, as a result, it is not accurate to suggest that the concern regarding citizenship was invented by Lex Libertas.
Section 20 of the Constitution is, in any event, unequivocal: no citizen may be deprived of citizenship.
If your present position is that citizenship should not be stripped from people associated with Lex Libertas or any other institution because of their international advocacy, we welcome that clarification. It would be helpful for you to state that position without qualification.
Your statement identifies as false the supposed claim that there is a state-sponsored ‘white genocide’ or state-sanctioned campaign of farm attacks in South Africa.
The difficulty is that this is not the claim advanced by Lex Libertas. The White Cross Project Campaign Report report does not base the White Cross Project on a claim of state-sponsored ‘white genocide’. Nor does it claim that the state directly organises farm attacks.
What it does argue, with supporting evidence, is that farm attacks constitute a distinct and unusually brutal form of rural crime; that political and racial motives are present in at least some cases; that political incitement forms part of the broader environment in which these crimes occur; and that successive governments have responded through denial, downplaying and a failure to provide an adequate specialised rural-safety response. The report gives specific examples, including attacks during which ‘Kill the Boer’ was used, and then proposes a dedicated rural-safety strategy, better intelligence, rapid-reaction capacity and cooperation with rural communities.
That is the case we are prepared to defend. If you wish to challenge it, we invite you to do so. But the proposition that must be tested is the proposition we actually made.
The same problem arises in your treatment of the Expropriation Act.
Your statement says that it is false to claim that the Act permits the arbitrary seizure of land without compensation or judicial oversight. Again, that is not an accurate description of the argument in our report.
Our report states that the Expropriation Act expressly creates circumstances in which nil compensation may be considered. It further points out that the statutory list is expressly non-exhaustive, and argues that this creates uncertainty and scope for subjective application.
Those are factual and interpretive propositions that can be debated.
We do not deny that judicial recourse exists. Our concern is not that South Africa has abolished courts. Our concern is that Parliament has created a statutory framework in which compulsory acquisition at nil compensation is expressly contemplated and in which the circumstances in which it may occur are not confined to a closed list.
If you disagree with that assessment, we would be happy to debate the wording of the Act itself before the committee.
You also reject our description of B-BBEE as race-based discrimination, citing section 9(2) of the Constitution and the constitutional legitimacy of remedial measures.
This does not resolve the argument.
The fact that you believe racial differentiation to be constitutionally justified does not mean that the differentiation ceases to be racial.
B-BBEE and Employment Equity laws expressly classify citizens according to race and attach different consequences, opportunities, targets and ownership requirements to those classifications. Our report argues that racial criteria should be replaced by needs-based and merit-based measures and that rights and opportunities should attach to persons rather than racial categories.
You are entitled to defend what you describe as race-based redress, and we are entitled to argue that permanent racial classification and unequal treatment are both undesirable and unjust.
That is precisely the kind of substantive disagreement that ought to be debated publicly rather than resolved by labelling one side ‘misinformation’.
There is one point on which we should be equally clear about our own position: Lex Libertas has advocated for international pressure.
We will not seek to obscure that fact.
As part of its White Cross Project, Lex Libertas proposed, among other measures, targeted sanctions against political actors directly responsible for incitement against minorities or the systematic implementation of discriminatory race laws. It also proposes conditional economic engagement, exemptions for American companies from B-BBEE requirements, support for reformers and diplomatic pressure regarding incitement and rural safety.
These proposals can and should be debated. For that reason, it is important that they should be described accurately.
There is an important distinction between advocating indiscriminate punishment of a population and advocating targeted consequences, diplomatic pressure or conditionality directed at support for a sustainable policy environment.
You may disagree with our proposals. That does not make it dishonest for us to advance them.
Your statement places considerable emphasis on South African sovereignty and suggests that Parliament, rather than a foreign legislature, is the appropriate forum in which these matters should be discussed.
We agree with the first half of that proposition: Parliament is indeed an appropriate forum.
However, we are not convinced by the word ‘rather’.
Domestic and international engagement are not mutually exclusive.
As I argued in my introductory remarks at the White Cross Project Conference in Washington, D.C., our position begins by acknowledging that states are sovereign and that sovereignty must be respected. But sovereignty is not the only principle recognised by international law. The United Nations’ 1970 Declaration on Friendly Relations affirms both the sovereignty of states and the right of peoples to self-determination. It further links the protection afforded to sovereign states to governments that represent the whole people without distinction as to race, creed or colour.
The point is therefore bo no means that any foreign entity should govern South Africa, nor that sovereignty is irrelevant. The point is that sovereignty cannot be invoked as an absolute shield against scrutiny when a government is accused of persecuting sections of its own population. This is why I argued on behalf of Lex Libertas in Washington that: a government’s right to sovereignty does not extend to the right to persecute.
This is also why engagement with foreign governments is legitimate, not just according to the South African Constitution, but also according to International Law and the inalienable principles of justice and fairness that we often describe as the Law of Nature.
I believe that, in your analysis, the debate is about whether South Africa is being misrepresented abroad. In our analysis, however, the debate is about whether minorities are being persecuted in South Africa. These two questions are perhaps two sides of the same coin. This is precisely why both should be debated. We are prepared to be scrutinised under oath on these issues.
Parliament is therefore indeed an appropriate forum for this discussion, but it is not the only legitimate forum. We will engage Parliament, the South African government, civil society and the public at home. We will also continue to engage policymakers and institutions abroad. Those forms of engagement are not contradictory.
Sovereignty does not confer unlimited authority, nor does it place a state beyond criticism or lawful international scrutiny.
I should point out that there is another point in your statement on which we find substantial agreement.
You refer to unemployment, economic vulnerability, the importance of foreign investment and the serious consequences that political and economic instability can have for ordinary citizens.
We agree wholeheartedly. They are also precisely why Lex Libertas does this work. We do not want South Africa to become poorer, more unstable or more dangerous. We want the opposite. We want more freedom – not just for our own communities, but for all communities in South Africa.
Our argument is that the policy and political framework that has contributed to unemployment, institutional decline, racial division, insecurity and declining investment must itself be examined critically.
The proper response to the possibility that criticism may damage confidence is not to suppress the criticism. It is to address the conditions that give rise to it.
Your statement further says that Lex Libertas has ‘consistently’ failed to engage domestic institutions.
That claim is false.
Lex Libertas has engaged and continues to engage domestic institutions, office-bearers, civil-society organisations, media institutions and policymakers. We have repeatedly sought dialogue with government and will continue to do so.
Indeed, this very exchange arose from an open letter addressed to a Cabinet minister in which we call for dialogue.
As part of the White Cross Project, Lex Libertas drafted extensive recommendations directed specifically at the South African government, including practical steps on incitement, farm attacks, race laws and property rights.
The fact that we also engage internationally does not negate domestic engagement.
It complements it.
Finally, we welcome your rejection of what I described in my letter to Minister Lamola as ‘ceremonial listening’.
You say the committee's invitation is genuine, and that we should bring our evidence and defend it publicly. We appreciate the invitation and we will take you at your word.
We therefore propose that the Portfolio Committee arrange a formal session at which Lex Libertas can present our position, the evidence underlying its central claims and the solutions it proposes.
We further suggest that the committee invite other relevant experts and witnesses, including those who addressed the White Cross Project Conference in Washington, D.C., so that the discussion does not become a contest between political slogans but a serious examination of evidence.
We look forward to receiving the committee's proposed arrangements.
Yours sincerely,
Dr Ernst Roets
Executive DirectorLex Libertas
Verken meer inhoud oor soortgelyke onderwerpe
'Ons aanvaar die uitnodiging,' het Roets gesê. 'As die Parlement die bewyse wil hê, sal ons dit bring. Ons is bereid om vrae te beantwoord, ons gevolgtrekkings te verdedig en ons bewerings aan openbare ondersoek te onderwerp.'
'Wanneer die staat miljoene hektaar landbougrond besit en volgens velkleur besluit wie dit mag bewerk, is dit nie 'n alleenstaande fout nie.'
'Twee persone word geteiken, nie vir iets wat hulle by die UK gedoen het nie, maar vir die geselskap wat hulle hou en die menings wat hulle uitspreek.'