There should be no exception under the law

Saturday, 18 November 1995

The Nigerian junta raised an interesting question this week...

When suspected drug dealers were summarily executed under the same tribunal system that condemned Ken Saro-Wiwa, why, they asked, did the world remain silent?

The question was valid because it confirmed what I said on this page two weeks ago - that governments, when given the opportunity, will use the death penalty to silence legitimate political opposition. I'm still outraged that I have been proven right so quickly.

The answer is that we are still too emotional about the way in which we approach questions of legislation.

No one in their right mind wants to defend the rights of suspected drug dealers because everyone knows that they are wanting to destroy the lives of our children. And no one in their right mind wants to legalise pornography because everyone knows that pornography is degrading to women.

But it is precisely when the more repulsive fringes of society have their rights infringed upon that the rest of us should be sitting up and protesting.

Ensuring due process for murderers and drug dealers, and protecting pornographers from censorship are central to ensuring that we all have a free and just society.

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In a nutshell, we need to define rules that govern our society in such a way that they can be applied evenly to every member of our society. There can be no exceptions, since we are all equal under law.

When we twist the rules to cater for emotional or religious outrage against particular practices, we soon find ourselves on a slippery slope.

Case in point is the protest from certain Muslim organisations over the SABC's decision to proceed with screening of Jihad in America - a controversial documentary which is reported to portray the Islamic holy war against evil as radical terrorism against infidels - on the grounds that it would damage peaceful relations between Muslims, Christians, and Jews.

At the same time, the Durban-based Islamic Propagation Centre International is asserting its freedom of expression rights by continuing with distribution of its own documentary, From Hinduism to Islam, which some Hindus say damages peaceful relations between Muslims and Hindus.

What should the law say? My call is that the law should allow distribution and screening of both. Consumer boycotts and other individual expressions of protest are perfectly valid in a free society. But if anyone commits a crime on the grounds of religious outrage, stick their butts in jail.

Another case in point is that of Mariannhill train disaster driver Johan Meyer who was found not guilty by the courts of speeding and thereby causing the deaths of 67 people. Metro Rail sacked him on Monday after an internal inquiry found the train had been speeding.

Many countries have laws against what the Americans refer to as "double jeopardy" - being tried for the same crime twice. This is, I believe, a good thing. Were this not the case, a malicious prosecution team could continue to hound otherwise innocent people for years on end.

The downside is that one has to accept the judgements of the courts as final, even though subsequent evidence may be incontrovertibly incriminating.

So, while my visceral reaction is that the Metro Rail inquiry could well be correct in its judgment, I find myself in the distasteful position of being forced to speak up for Meyer's rights. If the courts found him innocent, Metro Rail should no longer have a case.

This in turn raises an interesting question. If Meyer is legally innocent and Metro Rail has evidence in its possession that it believes indicates otherwise, should they allow him to drive again?

As all of us who have driving licences are aware, driving is a privilege, not a right, and especially so in the case of public transportation. Metro Rail may well be forced to continue paying a salary to Meyer while avoiding allocating him to the work schedule.

And public prosecutors should be asking whether anyone was defeating the ends of justice if evidence presented at the Metro Rail internal inquiry had not been made available at Meyer's trial.