How Justice Fails

At the university apparently still called Rhodes over the last week, there have been some disturbing events. A group of students published a list of 11 names of alleged rapists, and attempted to ferret them out of university residences. Protesters also invaded lectures and barricaded streets.

When vigilante justice arises, it is usually a consequence of the failure of regular justice. So you need to track back to the point of failure to stop it from happening.

Rape is notoriously hard to prosecute; this is true also in South Africa despite progressive legislation.

Where does this leave the victim, who is in a weak position versus the perpetrator? Do you report it to the police, undergo an invasive investigation, then find the perpetrator not only walks free but is able to threaten you?

Whether it is rape, sexual harassment or abuse of a position of power, there is an enormous amount of hypocrisy in our society. Remember Bill Clinton? His behaviour was at very least abuse of power, expecting sexual favours from people who looked up to him as president. And this was dismissed at the time as a right wing plot to discredit him (spot the irony: it was Clinton who pushed the Democrats well to the right of centre).

Then there is the mysterious case of IMF chief Dominique Strauss-Kahn whose rape case was not prosecuted, yet the alleged victim was given a massive out of court settlement. This too was alleged to be a “political conspiracy”. Rape is not a civil matter; in the not too distant past, in this country and in many others it attracted the death penalty. Who ever heard of an out of court settlement for a serious crime?

To South Africa: in 2006, then-deputy president Jacob Zuma was tried for rape. The case has all the hallmarks of a person of power crushing a vulnerable accuser. Even if he was not guilty of rape (as claimed by the judge), he was at very least seriously abusing his position and his attitudes to women were revealed to be deeply problematic.

So what did those at the progressive end of politics, the natural home of feminism, do? They rallied around him. Every formation of the ANC including the Women’s League and Youth League supported him, as did the Communist Party. Cosatu’s support was the weakest, with a statement that the law must take its course, but even they did not break with him once his attitudes were a matter of public record and joined the rest of the alliance in welcoming his acquittal. Cosatu General Secretary Zwelinzima Vavi was also accused of rape in 2013, a charge that was reduced to sexual harassment, But what was most bizarre about this was how Cosatu claimed they were considering pursuing a rape charge against him. Excuse me? Aren’t criminal charges a police matter? Why is the organization involved in any way?

Once again, a rape or sexual harassment charge is framed as a political vendetta rather than something that must be dealt with in the strongest terms as a matter of course.

We cannot excuse EFF leader Julius Malema from this malaise; when he took control of the ANC Youth League 2 years after the Zuma trial, he backed the Zuma version of events.

With this sort of thing happening at the apex of progressive politics in South Africa, why is anyone surprised that there is a rape culture amidst a general culture of patriarchy? Where is the leadership? Answer: at the core of the problem.

Back home, a student today told me that one of the 11 on the notorious list was well known for his predatory attitudes by his fellow residence inmates. Why did they not call him to account? If you know someone is like this and say nothing (or worse, encourage this behaviour), you are complicit.

So what is to be done?

The real problem is that post-apartheid, we did not reconfigure civil society and interpersonal relationships to fit a new progressive democratic order. We have a great constitution, generally good laws and excellent public institutions – on paper. But these things do not work the way they are designed.

What is really needed is a new social compact, and one that is built from the ground up, not top down. One that is based on a new discovery of each other, that each person is entitled to self-worth and being treated as of equal value by all, that no one should be denied their dignity and that we do not build ourselves by tearing others down.

Ultimately we must change the apex power structure – but it will not help to replace those at the top with others who found their way there by the same logic. A grassroots campaign to establish the new normal – that predatory behaviour is not acceptable, that you do not define a person by their availability for sex, that everyone is entitled to physical and emotional integrity will make it impossible for those at the top to behave like self-serving jerks because they will be out of step with the rest of society.

We can start today. Whenever we hear someone talking up predatory behaviour, making light of rape, belittling someone else – or generally behaving as if any of this sort of behaviour is acceptable – call them to account. “Normal” is established as much by peer pressure as anything else. We can do it.

We can define the new normal.