The ANC and John Dugard

Gareth van Onselen on how the ruling party spurned the great jurist, before honouring him

The ANC and John Dugard: Feeding the hand it bites

As long ago as 1994 in our recent past, as John Dugard sat before the Judicial Service Commission to be interviewed for the position of Constitutional Court judge, two commissioners would pause proceedings that they might question Dugard's modesty; for his curriculum vitae, although extensive, did not in their eyes do sufficient justice to the colossal influence that was his contribution to South African jurisprudence. Such was the stature of the man at the dawn of our new democracy.

He was never appointed.

Some 18 years later and his achievements are now rightly described as magisterial. In those legal circles that matter, he is considered one of the fathers of human rights in South Africa. In our universities his books on international law are standard texts; in our precedent, his influence is as pervasive as it is defining; among the international legal community his standing is commanding and his opinions authorative.

A stalwart in the fight against apartheid, an architect of the South African constitution, founder of the Centre for Applied Legal Studies at the University of the Witwatersrand, he has held positions at Princeton, Duke, Cambridge and Berkeley, served as a member of the UN International Law Commission, a judge ad hoc for the international court of justice and a special rapporteur to the UN Commission on Human Rights. His contribution to South African and international law alone has earned him honorary doctorates from six South African universities.

Truly he is a great jurist. And deliberately I have not qualified the term with ‘South African'. Yet, for all that, Dugard's contribution has never been fully recognised; certainly the forces that be, from Mandela through Mbeki, have done little more than demonstrate a certain disdain for the man. That is, until April last, when President Jacob Zuma saw fit to bestow upon him the National Order of Baobab, Gold Class. As a result, Dugard now enjoys the title: Supreme Counsellor of the Order of the Baobab, the highest status for which this particular order provides.

It is, however, a title tainted; a gesture typical of nationalist governments, so eager to feed the hand they bite. That it passed without a murmur says as much about the prestige these awards enjoy as its does South Africa's stupefying ahistoricism. Allow me, then, to set before you a few facts about John Dugard and his relationship with the ANC government; lest we forget completely.

Passed over for the Constitutional Court in 94, Dugard - his stature not so easily wished away -would again emerge as a candidate for a prominent position. This time as a commissioner for the Human Rights Commission in 1995 - a post for which his particular skills set and vast expertise would suggest him ideally suited. Not so. Again he would be passed over. One liberal too many for yet another ostensibly independent institution the ANC would set about shaping in its own ideological image.

Both those outcomes were significant and South Africa the poorer for them. In his autobiography, Tony Leon wrote the following about the Constitutional Court decision:

"The exclusion of Dugard was, I thought, shocking and ominous. I wrote him a letter of commiseration, and thought his reply rueful and revealing: ‘Obviously I was disappointed not to be included but I cannot say I was surprised. I think/fear that it is easier for the proverbial camel to pass through the eye of a needle than it is for a liberal to enter the Kingdom of the New South Africa'."

But it was not just local doors the ANC would close in his face. Dugard would find due recognition abroad a right equally difficult to earn. In 2002, with Mbeki's Africanist agenda peaking, Dugard would be spurned for a third and final time. He stood to be elected to a permanent seat on the International Court of Justice, nominated by Chief Justice Arthur Chaskalson no less; behind him, the local and much of the international legal profession - but not the ANC.

Some three months after his February nomination the government - central to canvassing and lobbying support for his appointment - had failed even to lodge his candidacy with the UN. The face of quiet diplomacy, Foreign Affairs spokesperson Ronnie Mamoepa, would say only that government was "applying its mind" to the nomination. In October that year Dugard would lose out to Sierra Leone's Abdul Karoma by 43 votes to 134. He would blame government, saying officials refused even to return his calls. It was the first time in some 60 years a nominee had failed to secure the support of their respective government. And to this day the ANC has failed to provide a justification. It was an embarrassing and reprehensible act.

Dugard, to his great credit, has never looked back and his record speaks for itself. He has, over the last ten years, established for himself a reputation as a preeminent force in international law.

So it is with some nauseating irony that I read the President's speech, as he waxed lyrical this April passed about those chosen to receive the various honours to be bestowed upon them. As if detached completely from the ANC and Dugard's history, Zuma quoted the following, from South African writer Don Mattera's ‘Memory is the Weapon': "...there is nothing that can be hidden from the mind. Nothing that memory cannot reach or touch or call back".

The thing about history, however, the thing the ANC routinely fails to understand, is that it is busy writing it everyday. And with time, we will evoke not just the horrors of apartheid, but the damage our new democracy has sustained at its hands since its advent. South Africa's memory does not stop in 1994.

I am tempted to admire the sheer audacity of it: to celebrate the very thing the ANC stands against, as if rhetoric alone might rewrite history's story. But with it comes the hypocrisy, and that is overwhelming. Truly symbols and ceremony are the language by which the ANC's duplicity is fully revealed: Dugard's singular excellence, once an obstacle to its political programme, now a national asset to be promoted and protected. And all the while, outside the pomp and circumstance, the JSC in March this year was forced to reopen nominations to the Constitutional Court, as no one was willing to put forward their name. No doubt, like Dugard, many have come to find the doorway to the Kingdom of the New South Africa locked to their particular key.

And here is the point: for fear of him, for years the ANC worked to exclude Dugard from office; the moment he no longer represented a threat, however, it was prepared to fete him. Such is nationalism's attitude to liberalism and excellence.

Accepting these awards is a precarious business, shun them and, it will be said, you spurned a nation - a nationalistic threat even JM Coetzee avoided. Yet it is odd that Dugard quietly pocketed the honour, without so much as a word. Perhaps that too tells one something: that for all the good he represents, in the face of the ANC's hegemonic political correctness, even he was willing to bend the knee before the President.

An edited version of this article first appeared in the Business Day. This version is from the Inside Politics website.

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