Ipsa scientia potestas est
21 December 2014 11:01 (South Africa)
Opinionista Gushwell Brooks

Stop hating the Constitution, it’s not the source of your misery

  • Gushwell Brooks
We South Africans are constantly at odds with our Constitution. When tragedy strikes (which is often, it seems) the first reaction is to revisit the “far too liberal human rights” debate. It’s time to gain a little perspective and to revisit the Constitution to understand whose responsibility it is to instil values and more in our children and whose responsibility to police crime.

Three recent incidents have catapulted our “far too liberal human rights” debate back to centre stage. They are all are extremely shocking and tragic in their own way. Two involved students flipping out violently – one shot a teacher in the leg, the other assaulted a teacher viciously. The third was a story out of Lenasia where two elderly sisters were murdered by a 24-year-old during in a suspected robbery.

Society once again expressed its outrage at these incidents, pointing to two usual suspects: a degradation of societal mores and the fact that criminals have too many human rights. Many ascended their soapboxes, nostalgically referring to a time when discipline was lashed into you and some people of Lenasia called for the return of the death penalty and police training to deal with the criminal element.

Reactionary? Of course! Valid, justified and righteous anger? Indeed! The solution? Hell no!

But rather than descending into a lengthy debate about the inefficiency of the death penalty as a deterrent (notwithstanding the fact that it is an inhumane, human rights violation that has no space in our Constitution) the epiphany I wish to share is the fact that we, as South Africans, have a very loathsome relationship with our own Constitution.

Unlike the Americans, who fight tooth and nail to protect very dated protections such as the 1791 Second Amendment giving Americans the right to bear arms, South Africans are constantly at odds with our Constitution.

Apart from being famous for starring in Ben Hur and other such biblically themed cinematic epics, Charlton Heston has also made it clear that you would have to pry his rifle from “his cold, dead fingers”. Despite the Columbine school shootings and more recently Aaron Alexis’ seizure of a naval base, Americans won’t lay down their guns.

So, despite a practical and societal need to bolster gun control in the US, 222 years later the Constitutional principle of the right to bear arms doesn’t seem to be losing momentum. Here, however, where the rights to dignity, to not be subjected to cruel and unusual punishment and to life should be seen as positive protections, we want to return to a time where we hung them high and beat good manners into the kids in our schools.

On top of this, our President and a few of those that report to him ignored two realities of South Africa. The first being that we give equal legal protection to the gay community; in fact, as a young democracy we very quickly afforded gay people the right to enter into permanent domestic partnerships akin to marriage. The second is that the majority of children are born into single parent families. Instead, the President and his entourage would rather focus on the sacrosanct nuclear family, bordered in white picket fences with a heterosexual mommy and daddy and 2.5 children.

All these issues point to a total disregard of what our guiding laws and supposed mores dictate to be a free and fair democracy.

On the issue of corporal punishment, it is simple: if you wish to hit your children as part of your discipline regimen, you can go ahead and do so. Provided it is not construed as physical abuse impinging on the rights of others, including those of your child, go ahead, give them a good lashing. The Constitution protects your child’s dignity by ensuring that he/she is not subjected to unusual and cruel punishment by being beaten in front of their entire class for whatever misdemeanours and indiscretions committed.

It is not as if they cannot be disciplined at school. Last time I checked suspension, detention and other punishments suffice, especially if you, the mommy and daddy, augment the punishment with a good spanking at home. So, all in all, I am happy with the fact that the Constitution inadvertently places the responsibility of responsible physical punishment in your hands as mommy and daddy.

As for the death penalty, in the recent comparison the Gauteng Provincial Crime Statistics and the National Crime Statistics one thing becomes clear. Crime is impacted by effective policing rather than by placing gallows at the city gates, or placing convicted criminal’s heads on spikes. The US still dabbles in capital punishment and it has become the world’s most incarcerated society because it still has a serious problem with crime, especially in areas where capital punishment is practised.

For the Constitution to be truly meaningful, we need to come to terms and accept a few basic fundamentals. As much as we have far-reaching rights, it is for us as citizens to enforce and enact these rights responsibly. We need to discipline our own children, a difficult feat considering that they spend substantial amounts of time at school, exposed to bad company, drugs, weapons and pornography in some instances. But whose responsibility is it to instil values that guard against these divergences?

A lack of service delivery and resources by our police should be addressed when dealing with issues of crime. How can we claim to be progressing as a country if I wish to have my six-shooter strapped to my hip to protect my wife, virginal daughter and property? In fact, we shouldn’t be spending exorbitant fees on private security companies, high walls and electric fences to keep criminals away from us. It’s actually, if you check the legal codes, the SAPS’ job.

Here is the solution to loving the best Constitution mankind has ever devised. Kids are not assaulting and shooting their teachers because they are not being beaten in schools, as we should not, on a wholesale basis, defer discipline to the office of Angie Motshekga. Our President and his political cohorts need to live in the real world where men regularly abandon the children they fathered and where you, despite your sexual orientation, have the right to pursue a family.

If our law enforcement agencies were employed as law enforcers and evidence collectors (rather than revenue collectors), many more perpetrators of crimes would end up in jail for lengthy sentences. Maybe if our lobbying for the return of capital punishment was redirected as lobbying for better policing it might yield the desired results: a real reduction in crime. DM

  • Gushwell Brooks
gushwell brooks for DM

Gushwell F. Brooks is an LLB graduate from the University of the Witwatersrand. He did not go on to become an attorney, but much rather entered the corporate rat race. After slaving away for years, he found his new life as a talk show host for Talk Radio 702 and 567 Cape Talk.

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