South Africa

Op-Ed: Justice minister gives students strange advice on sexual harassment

By Marianne Merten 18 April 2016

Asked by pupils what to do about sex-pest teachers, justice minister Michael Masutha advised them to record any inappropriate advances. Here’s some advice for the minister: it’s not appropriate to tell young children that the burden of proof for sexual offences – for any offences – lies with them. By MARIANNE MERTEN.

It was billed as a constitutional educational dialogue with pupils from Western Cape high schools in leafy suburbs, townships and the Cape Flats. But Monday’s discussions on the Constitution, which turns 20 this year, took a rather bizarre turn in a parliamentary committee room when Justice and Correctional Services Minister Michael Masutha effectively told school children to become investigators – and use their cellphones to record teachers’ inappropriate advances.

During question time the issue of teachers abusing their power and position to demand sex for better grades came up. “It’s illegal. It’s criminal. I want them in my correctional facilities, so expose them,” responded the justice minister, according to News24. “It’s simple – use your cell phone… You have the tools these days, thanks to technology, to deal with every problem.”

Surely the only correct ministerial response was to ask for the details (afterwards, in private) and to ensure his Cabinet colleagues for police and basic education are informed without delay so that there is action on this information?

Instead the justice minister effectively told pupils to do the job of the police, to investigate and deliver proof. His reason? The burden of proof lay with the accuser, according the News24.

Section 28 of the Constitution is dedicated to the rights of children, anyone under 18 years old, and states that “every child has the right to be protected from maltreatment, neglect, abuse or degradation”. Demanding sex for better grades fits into such protection, does it not?

The Constitution’s child rights section also states that children have the right “not to be required or permitted to perform work or provide services that are inappropriate to a person of that child’s age or place at risk the child’s well-being, education, physical and mental health or spiritual, moral and social development”. Surely asking a child to investigate a teacher – a child who is in an unequal power relationship with that teacher – falls foul of that?

It’s the police’s job to “prevent, combat and investigate crime, to maintain public order and secure the inhabitants of the Republic and their property and to uphold the law and enforce the law”, according to Section 205 of the Constitution. It does not say a child must deliver to police proof that a crime took place. Under the Sexual Offences Act the age of consent is 16 and any adult, teacher or not, is guilty of statutory rape for having sex with anyone younger.

Section 9 of the Constitution says: “Everyone is equal before the law and has the right to equal protection and benefits of the law.” The founding provisions of the Constitution also outline a system of democratic government “to ensure accountability, responsiveness and openness”.

(Note: For a long time there was a gigantic wall painting hanging from a building opposite the main gate of Parliament, showing the progress from the anti-apartheid struggle to the 1994 democratic vote and the Constitution. Some years ago, faded by rainy Cape Town winters, it disappeared; then the building to which it was pinned was torn down to make way for a parking lot. Could this be a metaphor?)

Perhaps the first sign this dialogue was not exactly going to be the expected celebration and educational discussion of South Africa’s supreme law came when Masutha said the Constitution was not the only law of South Africa, although it was the supreme law. The story of law, he told the pupils, was the story of conquest (2,000 years ago the Romans conquered Europe and imposed their law), but also of peace and reconciliation and nation building.

It was good fortune that in Standard 5 (today’s Grade 7) he decided to become a lawyer, said the justice minister, because “we (government) are in and out of court almost every other week”.

Indeed, government frequently finds itself in court, and often on the losing side – and not only in the recent Nkandla Constitutional Court matter which found President Jacob Zuma and the National Assembly failed in their respective constitutional duties. Other court losses were recorded over government’s failure to arrest Sudanese president Omar al-Bashir, who is wanted on International Criminal Court warrants of arrest for war crimes, several cases involving Parliament’s rules like motions of no confidence or disciplinary proceedings against Economic Freedom Fighters (EFF) MPs and a plethora of suspensions in the prosecuting and police services.

Spinning Masutha as “one of the finest ministers” produced by Limpopo backfired somewhat when the pupils were asked what else came from Limpopo. Witchcraft, was the retort from one.

Perhaps a sign of stereotyping? Or perhaps healthy evidence of bullshit detection? If it was the latter, hopefully the same instinct applied to the at best misguided words from the justice minister that children should provide evidence of a teacher asking for sex for better marks, as those at the receiving end of a wrong carry the burden of proof.

It is hoped the teenagers enjoyed taking the photos alongside the bust of Nelson Mandela. May those photo mementos be the inspiration of the day. DM

Photo: Justice minister Michael Masutha (GCIS)

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