Miranda Rights and Mabuza Rights

Social Development Minister Bathabile Dlamini. File picture: ANA

In March 2017, Minister of Social Development Bathibile Dlamini famously spoke one on of the most memorable quotes of recent times.  She defended her party against criticism saying everyone in the ANC’s leadership “has their smallanyana skeletons” and that it shouldn’t come out “because all hell will break loose”.

The right to remain silent does not apply to politicians because they serve the public. The right to silence is indeed a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world’s legal systems.

In the USA, these are known as Miranda rights.  When criminals are arrested they are cited their Miranda warning.  However this does not apply to public hearings.  Yet we have seen the following:

– Politicians staying away from judicial commissions and parliamentary committees

– SOE executives “paper-bombing” commissions with 400-page reports delivered the night before they testify

– Ministers offering bribes to parliamentary committees to excuse certain people from testifying

These should be called “Mabuza rights” because of the way the premier has dodged investigations and enquiries for so long, about the January murders and other public concerns.

Rumour has it that there is a “smallanyana skeleton” in a KwaZulu-Natal closet somewhere, that his adversaries want to release to revenge him for pulling out on Dlamini-Zuma at the last minute.

Indeed, Mabuza is known to be silent and unpredictable.  He can be suddenly explosive.

The Constitution of South Africa requires that any arrested person be informed of their right to remain silent and the consequences of not remaining silent, their right to choose and consult with a legal practitioner, and their right to have a legal practitioner assigned to the person detained by the state and at state expense if substantial injustice would otherwise result.

This does not apply to public figures paid by the taxpayers whose retorts are so common such as: 

– I didn’t know (If I had known; if someone had told me; they didn’t inform me…)

– It wasn’t me (I am not the one responsible; I am a politician not an administrator…)

– I can’t say (it’s not my jurisdiction; it’s someone else’s responsibility…)

How is it possible for a premier to know nothing about 14 murders between 1998 and 2011?  Not just police investigations but a special enquiry as well in 2012.  Yet he has nothing to tell the families of these whistle-blowers.  They were NOT going to remain silent.  So they got shot.

In a country where the Social Security Agency is known to be spying on citizens, even illegally, according to both government and civil society reports, how can he be silent about this for 20 years?  The January murders started 20 years ago this month.  And he knows nothing?

Matthews Phosa came forward with a dossier than landed on his doorstep unexpectedly and anonymously.  Mabuza sued him for R10 million and lost.  What was the point of doing that?  That Phosa should have remained silent?  Phosa had not been arrested.  Triumphalism and Silence have walked hand-in-hand together for a long time, and for a long way.  

It is time for light to shine into the darkness.  It is time for people to speak out, and for politicians (not just the technocrats) to give some answers to our questions.  Electing them to high office does not give them the right to remain silent.  For they are elected, not arrested.  As Minister Dlamini predicted… let all hell break loose!  Silence is not golden.


Chuck Stephens is the Executive Director of the Desmond Tutu Centre for Leadership and writes in his personal capacity