Amen Sister

I feel compelled to ask. Why the sudden surge of media articles, claiming ‘shock’ and disbelief that Oscar Pistorius has been recommended for early release under correctional supervision?

It’s hardly ‘shocking’ and it’s certainly not surprising. In fact, it was entirely predictable, right and proper, and wholly concurrent with South African law.  Actually, what would be truly ‘shocking’; is if his legal rights were violated, in order to gratify a manipulated and distorted perception of appropriate retributive justice.

Not really ‘shocking’ then. To be fair, not really ‘news’ either. At least not in the sense of providing fresh, intelligent and unbiased information. Correct me if I’m wrong, but I’m pretty certain that when Oscar left the courtroom to start his prison sentence for culpable homicide, the potential ten month incarceration period was widely reported across the world’s media. Only a total recluse, entirely cut off from civilisation, could have missed it. Forgive my cynicism, but let’s face it, this recent turn of events isn’t news, and it isn’t shocking. It simply presents yet another opportunity to recycle the same brutal, biased, uninformed, unjust and extremely lucrative hype.

You may have gathered that I don’t have much respect for the media coverage of Oscar’s tragedy. And, you’d be right. I don’t. You see, I have been left feeling let down, foolish and naïve. I used to think that journalism was about offering honest, impartial and meaningful information; not peddling scandal, lies and sensationalism for greater profit. I used to think it was about giving voice to the vulnerable, uncovering truth and speaking out against injustice; not collaborating with others to destroy one hurt and traumatised human being. Silly, silly idealist me. What was I thinking?

I have always been open in my support of Oscar. However, even if my perspective had been different, I’m pretty sure that I would still feel nothing but contempt for those who continue to indulge their own smug hypocrisy at his expense; and at the expense of others most hurt by this tragedy. I also have a burning conviction that if this same tragic event had struck the life of the average Joe, and not Oscar the global icon, Mr J Average would not be facing the same level of self-righteous persecution, and I would not be writing this article. There is no doubt in my mind, that the contemptuous disregard for truth, and the shameless hijacking of a personal tragedy to further multifarious agendas and personal ambitions, are directly related to Oscar’s global fame and celebrity.

So, exactly when did it become okay to discriminate against a person because of their celebrity? When did it become acceptable to stand in judgement of another, deliberately ignorant of their reality, just because they have achieved a measure of prestige? And when did it become right to accept without question, the ruthless attempts to destroy a man’s future and extinguish his chance of healing, because of his prominence in society. I think it’s a reasonable hypothesis; that those blessed with wealth, success and global fame are not universally popular with those who aren’t themselves similarly favoured. Jealousy and spite make venomous bedfellows. Still, whilst this might account for the public’s response, and exploitation and greed almost certainly accounts for the media’s, does this really provide a suitable explanation for the blatant discrimination by those in positions of authority? Is there more to it than envy and selling ones morality to the highest bidder?

Equality under the law is a sensitive topic in South Africa and I have no doubt the perception; that the law favours the wealthy, is founded upon bitter experience. Of course it’s not a failing exclusive to South Africa, however it is widely recognised that the poor in South African society have unequal access to justice, which clearly undermines the principle of equality in society. In light of this sobering reality, it is right that every legal and moral effort continues to be made to remove the obstacles to achieving equality. However, what is also essential to the interests of society is; that any attempt at creating a level societal playing field, does not come at the cost of justice and equality for another. Indeed, this very principle is set down in the Universal Declaration of Human Rights:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex……social origin, property, birth or other status.” “ALL are equal before the law and are entitled without any discrimination to equal protection of the law”. 

In principle at least, this international human rights framework provides equal protection for every citizen: man and woman, young and old, poor and wealthy, able bodied and disabled, the average Joe, or Oscar the global icon. Equal rights; unequivocal and sacrosanct. So why then, has Oscar Pistorius been discriminated against because of his celebrity and status in society? How was this allowed to happen? I believe that’s a question best answered by examining the motives of those in authority; those in positions of power and influence, those whose duty it is to seek the truth and administer justice with integrity and impartiality.

Let’s start with the NPA and State Prosecutor, Gerrie Nel. Determined from the outset that the case of the State vs. Oscar Pistorius would set a precedent for the future, Mr Nel set out to show the citizens of South Africa that wealth and status would not buy privilege in the courtroom. During the bail hearing, he underlined that this was a precedent setting case, and that prioritising the addressing of crimes against women, meant going beyond just “paying lip service” - the court “must be seen to be taking violence against women seriously”. He warned the court that Oscar could not be treated differently because he was famous, insinuating that this was a distinct possibility. This bias established the course for how the authorities were to treat Oscar in the future, and served to influence and manipulate media and public opinion. The truth behind the tragedy, in particular the absence of intent, became not a fact to consider but an obstacle to overcome.

The ANC played its part too. The ANC Women’s League, supported by then Minister Lulama Xingwana, were vocal in their presumption of Oscar’s guilt, and openly campaigned for him to ‘rot in jail’. Less than two weeks into the police investigation, there can be no question of them knowing whether he was innocent or guilty, nor did they consider this a necessary consideration. This attitude has since been mirrored by other women’s pressure groups who have expressed anger at the sentence imposed, despite the absence of intent, or any history of violence against women. It appears that truth and facts are an irrelevance, when the key motivation is to take advantage of finding a high profile scapegoat for their cause, set an example to society and raise the profile of gender violence issues.

By the time of the bail hearing, the trial by media was in full swing, and the media and public malevolence was all too apparent. Despite hearing “extensive and thorough argument that this is not premeditated murder” presiding Magistrate Desmond Nair downplayed the importance of establishing a valid charge; “I would venture to say at this point in the hearing, I am not as much seized with the issue of finding beyond reasonable doubt that the applicant had committed a premeditated murder". He thus permitted the NPA to bring a charge of premeditated murder despite his concerns that the police had failed to establish a history of violence, despite the transparently false allegations brought by Hilton Botha, and despite any ‘evidence’ put forward being overwhelmingly circumstantial. It is difficult to know just how much damage was caused by giving undue credibility to the allegation of premeditation at this point of the proceedings, but whatever the degree of harm caused, it was damning and irreversible.  

It is also worth reflecting on the decision to broadcast the trial. In the hearing, Judge Dunstan Mlambo unashamedly singled out Oscar’s status as a feature that would influence his decision. He stated that the ruling would dispel the “negative and unfounded perceptions that the justice system in South Africa treated the rich and famous with kid gloves whilst being harsh on the poor and vulnerable”. Claiming that this decision would go a long way in dispelling "these negative and unfounded perceptions", whist agreeing with the defences' grave concerns, he justified the decision on the premise that open justice and the right to freedom of expression should be given equal weight to the accused’s right to a fair trial. Clearly both justifications were absurd. He would surely have known that Oscar’s trial, of all trials, was never going to be a fair representation of an average judicial process, and set against the backdrop of a year of media and public malevolence, it was entirely predictable that the live broadcasting of the trial would be treated as a form of macabre entertainment. I have no qualms in suggesting that the real driver for the decision was to use this high profile case to put the best possible spin on South Africa’s justice system to a global audience, and to satiate the media and public’s voyeuristic cravings, putting these ahead of Oscar’s rights to human dignity and a fair trial.

Even presiding Judge Thokozile Masipa, succumbed to pressure. Following the conviction of culpable homicide, and prior to delivering the sentence, Judge Masipa reinforced the weight given to the issue of status and public perception;”I might add that it would be a sad day for this country if an impression were to be created that there was one law for the poor and disadvantaged and another for the rich and famous.” A seemingly worthy statement, but I would suggest that in a truly equitable forum, it would not have been necessary to make reference to status at all. It is also reasonable to question whether the apparent emphasis on status and public perception put pressure on Judge Masipa to avoid conferring a non-custodial sentence, more often given in such tragic circumstances.  

So, I would suggest that the focus on dispelling the notion that wealth and status can buy favourable treatment, was dear to the hearts of all concerned; and a motivational driver for the way in which the investigation and judicial process was delivered. No doubt conscious of the disparity in dealing with different social classes in the past; from the earliest stage in the investigation there was a concerted effort to ensure that in this high profile case, Oscar Pistorius was not seen to receive preferential treatment as a result of his status, his wealth or global celebrity. Understandable? Maybe. Just? Absolutely not.

Paradoxically, the emphasis placed on Oscar’s status was in itself discriminatory, as was the resulting treatment of him. There is no doubt, that given Oscar’s international sporting success, the level of interest generated by his tragedy and trial, was inevitable and unavoidable. However in cynically using his global profile to advance public confidence in the judicial system; by treating this tragedy as an opportunity to further their respective aims, and by the overwhelming drive to ensure that he was not seen to be treated favourably, all parties (including powerful organs of the state) contributed to a shameful catalogue of discriminatory actions against him, instead of ensuring that measures were put in place to negate the prejudice that would ensue and to protect his ‘inviolable’ human rights: “The observance of human rights is permeated and characterized by the principle of freedom from discrimination".

It would take an extraordinarily convincing argument to persuade me that what we have witnessed over the last 28 months is impartial justice, and I have absolutely no hesitation in suggesting that Oscar has been actively discriminated against, because of his celebrity, his status in society, and his significant national and international profile. So, referring back to the opening question; despite what the media might portray, there is no shock value in the news of Oscar’s parole recommendation. None. Nor is it outrageous, or favourable in comparison with others. In fact, if anything, it should be feted as progress, a rare moment of decency in a mire of injustice and discrimination. Because, if this recommendation remains un-tampered with, and he is released under correctional supervision in August, Oscar will on this occasion have been treated equally under the law. And that, my friends, is seriously newsworthy.

Heather