The socio-political eunuch called an impartial judge

I am angry. I am pissed off. I have been trying to write about this Zuma debacle for months, but have been plagued by unease and self-censorship, and I have remained silent, while seething inside. The polarization into two camps of the country, into those who claim to be speaking on K’s behalf, and those who have out and out turned their backs on her has me bothered. I am angry and irritated with K herself and those surrounding her. I am angry with the men and women hurling stones and burning effigies, but all of this not new, because for ages I have been seething inside. Today, nudged by Judge Willem Van der Merwe, my anger can no longer be contained, it has become resolute, and I’m spilling it on this page.

But I have to start by being nice, so here is my attempt at being just that. Van der Merwe’s finding that the state failed to prove its case, and that the accused should be acquitted is correct. His decision on that score cannot be faulted, though many feminists may disagree. I believe that, legally, the State failed to discharge the onus of proof. But whether the decision could have been different, save for the misogynist reasoning, the question should be asked, but that’s another issue. I suspect the answer would still be a resounding no. We would still have landed with the same decision - this acquittal.

I’m not one who succumbs to misogynist notions about what women should wear, how they should talk, in order to avoid being raped. But I did have issues with the complainant and the state’s paltry efforts in dealing with this case. Such lackluster efforts intensify my anger. I am angry because for too long we have been subjected to misogynist reasoning, shrouded in the notion of the neutrality, objectivity and impartiality of judges, a notion which obscures the fact that judges make political decisions and these decisions are informed by their political and social contexts. We need to acknowledge this fact.

The law does not have one single meaning, and it often differs and is in the habit of being contradictory, depending on who is applying it and to whom they are applying it. Today the chilling effect of Van der Merwe’s words has left me reeling. Most judges believe that they need to uphold the distinction between law and politics, identify objective criteria and thereby create a factual distance between their own personal views, opinions and political philosophy. Professor Griffith, in his work on the ‘Politics of the Judiciary’, points out that the notion of impartiality has been regarded as an absence of personal bias or prejudice and the exclusion of “irrelevant” considerations such as a judge’s political views. Accordingly, when a judge acts like a ‘political, economic, and social eunuch’ with no interest in the world outside the courtroom, he/she is deemed to have delivered a fair and impartial judgment. Thus, Van der Merwe’s argument is that he has been fair and impartial by removing himself from the outside world. He makes the point strongly at the outset, as though this vindicates him, and that by behaving like a socio-political eunuch, he suddenly becomes impartial. But we know that this is not what has happened here.

We know that there are no determinate legal outcomes based on neutral, general principles and often judges rely on subjective factors in order to find solutions. We also know that different judges selectively rely on different factors – in this case the use of underwear and kanga’s. This has been the case with Van der Merwe. When faced with the choice of either starting from a premise of a women’s right to be free from violence, or from some apparently neutral legal basis, such as ‘judicial discretion’ or ‘reasonableness’ he chooses the latter, failing at every step of the way to acknowledge constitutional rights to dignity and freedom.

It is imperative that as women fighting the scourge of violence, we should be at the forefront of broadcasting the correct message. It is important that we interrogate our blind faith in justice and the law. It is also necessary that we start accepting that judges can never be neutral in relation to their society. Neutrality, as here espoused, is risky, since it blinds judges to their own involvement in recreating and perpetuating stereotypes. Judges, we must insist, should bring their own and women’s experiences into their courtroom, in order to fill legal gaps. Concerning gender based violence we should be adamant that judges strive more for socially responsive attitudes (in order to bring the law in line with women’s needs), above their quest for neutrality. The lawyer in me needed to say that. Now, having said it, I need to add that I no longer have faith in the evolution of our criminal justice system.

In this light, how do we take what the Court has said and move forward as a nation of women who are being raped, daily, in our homes, in the streets, in courts and in the media? Well, we can’t take it forward I am afraid. I feel the need to tell women to, ‘stop, don’t come forward, please don’t!’ If you have a sexual history, if you have ever been abused. Stop, go to counseling, heal yourself, and don’t subject yourself to the court process. Don’t subject yourself to being a victim.

I am certain the overwhelming silence that is left hanging in the aftermath of this Zuma debacle resonates within all of us. We have been silenced. How does one get beyond the allegation that walking around in a kanga with no underwear on and sending SMS messages ending in ‘love, hugs and kisses’ are an invitation to sex? How do we get beyond that? I don’t know if I know how. How do I start taking responsibility for myself and stop being a victim? I am tired of being a victim. Do we need to be more radical and renounce all forms of flirtation? I am sexual? I love sex? I am one of those who flirt unashamedly with men, sometimes? Do I then loose my right to change my mind and say no? I have a sexual history? I have slept with men I hardly knew? I have picked men up in bars and taken them home? I have worn practically nothing on those occasions? I have sent provocative SMS’s? What does that make me? Someone who will never be able to place myself in a witness box. Right now I don’t feel the urge to speak out in a court of law. I can’t. Yet, I want to add my voice in the name of the movement for other women to speak out? No. I need to be consistent, so I feel tempted to say – let the deathly silence hanging over us hang as ominously as it now does, while we regroup and rethink and formulate new strategies on Speaking Out. I feel we can no longer continue putting women through horrendous processes that re-victimize them. Let’s be silent.

May this silence be akin to the quiet before the storm. And that when we break it, nothing but thunderbolts of new voices should leave our mouths.

* Nikki Naylor is human rights lawyer and social justice activist having worked in the Violence Against Women Project at the Women's Legal Centre in Cape Town, South Africa for the last 5 years. She has litigated violence against women cases at a Constitutional and Supreme Court of Appeal level in the country and has published widely in the area of rape, violence against women and sexual harassment.

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