I’ve written two pieces pieces on Helen Zille’s recent tweets that led to today’s press conference with her and Mmusi Maimane, at which it was announced that she’ll continue as Premier of the Western Cape while withdrawing from DA activities generally, so there’s much I won’t repeat here. Continue reading “On the Democratic Alliance and Zille’s settlement agreement”
As those of you who care about these things know, Helen Zille was (on June 7) suspended from all Democratic Alliance roles, pending the outcome of a disciplinary hearing. The hearing began on Friday June 9, and it’s fairly safe to assume that Zille will contest any finding that doesn’t exonerate her. Continue reading “Zille’s suspension, and the suspension of common sense”
Readers will know that I’m not partial to shaming others, and that I try to avoid polarised viewpoints. I also try to apply the principle of charity – in other words, try to understand what someone was trying to say, rather than simply judging their statements based on surface-level meaning.
And while it’s fairly easy to imagine what Helen Zille thought we should take from her tweets yesterday, it’s very difficult to comprehend how someone with so much experience and knowledge of South African politics could be so naive – or ignorant – as to tweet what she did. Continue reading “Helen Zille and “valuable aspects of colonial heritage”.”
Earlier this month Mike Dzange, a waiter at a Camps Bay restaurant called The Bungalow sparked a Twitter debate and quite a few columns when he opted to include “2 BLACKS” on the docket of a couple he was serving.
The couple was black, as was the waiter – and while that doesn’t preclude the possibility of the waiter himself having internalised some racist attitudes (here, simply meaning that he might never use that shorthand for white couples), it does make it less likely that he was intending to demean this couple. Continue reading “Bungalow, racial classification, Zille and Twitter outrage (again)”
Earlier this week I was in conversation with Gareth van Onselen (GvO) at a launch event for his new book, Holy Cows: The ambiguities of being South African.
As far as I can tell, the event wasn’t recorded, which is a pity as I think we had an interesting dialogue on various contentious issues that are raised – either directly or by implication – in the book.
Two of the book’s themes seem to be of particular interest, judging by the conversation at the other launch event I attended, as well as social media and other comment.
Helen Zille is first up, if we address these themes in the sequence they appear in the book. GvO spends two chapters discussing Zille’s Twitter persona, in an exercise that one review (linked immediately above) called “a little creepy and obsessive”.
(There’s a chapter in the book on Pyramid, an obscure quiz show that ran on CCV-TV in 1995 and 1996, and I’d think that GvO having watched every episode of that a fair bit more obsessive.)
The chapters on Zille highlight various themes that recur throughout her Twitter output, and demonstrate that being as engaged as she is (it’s more accurate to say ‘was’, since stepping down as leader) allows us to establish a rather different view on her preoccupations and political dispositions than what you find in carefully-crafted newsletters and speeches.
One of the things that comes through rather strongly is Christian conservatism, in particular her negative attitude towards drugs, alcohol and sex. I’ve written on some of these things myself in the past, and also expressed views on her religious outlook in general, and think that cataloguing the Tweets in the manner than GvO does is useful for making the case.
Furthermore, the case is useful to make, for two related reasons – first, because even if Zille is committed to your liberty, in the sense that a roughly liberal party ought to be – the moralising tone of so many of the Tweets leave one feeling that her liberalism can be rather grudging.
Second (and I’m not attributing these observations to GvO), the hectoring and inflexible message that emerges from quite a few of the Tweets don’t provide enough of a counterpoint to the ANC’s political messaging.
Again, what I’d hope for from a liberal party is a tone and content that encourages critical reflection on issues. I wouldn’t expect that from a nationalist party like the ANC – but tonally, there’s little to pick between them, at least if you regard Zille as representative of the party.
In short, I think the wealth of data collected by GvO in these chapters give us interesting things to think about on the micro issue of a particular person’s political branding, as well as the macro issue of the various South African political brands in the market and how they are differentiated.
The second issue I’ll touch on is ritual circumcision, as discussed in chapter 7. Again, I’ve also written a column on this subject, but mine resulted in nowhere near the abuse that GvO’s shorter treatment (shorter than in his book, I mean) of the issue in his Business Day column did.
According to Xolela Mangcu, GvO’s column was “hate speech“. According to another correspondent, GvO was an “outsider” who also engages in inconsistent reasoning by not discussing all sorts of other cultural practices equally critically.
There’s one politically interesting issue here, and then another issue that is interesting mostly because it demonstrates a moral deficit on the part of these two critics.
The politically interesting issue is the question of who gets to comment on which issues – whether you need to be from a certain “culture” to criticise its practices. I think – and I know GvO does – that the arguments are what matter, not where they come from.
But tone can make people more or less receptive to a message, and this is (partly) why a column like mine led to less abuse, in that I foregrounded my outsider status (for pragmatic reasons only – not because I think it relevant to the argument).
GvO wrote in a certain style (and those of you who are actually interested in the arguments should read the book, not only the short column), and that style might or might not have been maximally productive to reader engagement. But again, that’s a separate point to whether the argument is sound or not.
The second issue is this: if there’s a cultural practice which does, on occasion, result in deaths and injuries, there’s a real problem to address – and it’s a far more significant problem than a “white” man having the temerity to criticise a cultural practice.
Yes, it’s true that this particular practice can be conducted harmlessly (using the word loosely, in that I’m ignoring the reinforcement of patriarchy, etc.). So if anyone says that deaths and maiming are always a necessary consequence of initiation, they are wrong and ignorant.
GvO doesn’t do that. And by all means, correct him or anyone else on particular facts they get wrong – but for as long as there exists a subset of traditional rituals that are open to the sorts of criticisms contained in the article and the book, there’s an argument to respond to.
Because if you don’t respond to the argument, then you’re telling us that according to you, the politics of identity – wherein a “white” man isn’t allowed to criticise something from “black” culture – is more important than deaths.
Or, you’re expressing a logical principle that only insiders can speak on whatever the insider topic is. And if this is the case, follow it to its logical conclusions – men can’t speak about something experienced by women, and vice-versa. The poor can’t talk about the rich. The Spanish can’t talk about the English, and so forth.
Most of the time, though, what it sounds like you’re saying is that this is something you’d simply like to have exempted from any outsider criticism, and that seems inexcusably lazy to me.
As submitted to Daily Maverick
On Sunday, Zama Ndlovu (@jozigoddess) tweeted “I do hope someone will write something about how whiteness should look at that piece of ‘art’. To be fair and stuff.” I’d hope that nobody does, just as nobody should write about how “blackness” should look at Brett Murray’s “The Spear”. Because both approaches would be prescriptive in dictating that it’s race which should determine one’s attitude to dignity, and which sorts of harms should be taken seriously by our courts.
It’s too late, of course – many pieces were published over the weekend by writers of various races, with some of the writers explicitly foregrounding their blackness or the putative blackness of their analysis. More important, perhaps, is that they foregrounded the whiteness of the artist – and the whiteness of thinking that it’s permissible to depict Jacob Zuma with his penis hanging out of his trousers.
This is the crux of the controversy. Not only freedom of artistic expression competing with a Constitutional right to dignity, but the clash of cultural norms that Murray’s painting has highlighted. As with Yiull Damaso’s painting of Mandela’s autopsy, those who think it inappropriate to depict Zuma’s penis talk about disrespect, and appeal to the communitarian perspective that holds that we are responsible for upholding each others’ dignity. Those who think the painting permissible tend towards the more liberal perspective, arguing that we don’t have the right to not be offended.
These responses are not reliably correlated with race – black columnists have been among those arguing that Zuma has presented himself as a philanderer, and therefore that he shouldn’t be surprised if we end up perceiving and depicting him as one. But I haven’t seen a white columnist arguing that The Spear is insensitive enough to merit an urgent interdict for its removal from the Goodman Gallery and the City Press.
The absence of this sort of critique from white writers feeds into the narrative of racism, whereby Murray’s painting becomes emblematic of a colonial gaze, where black men are savages, ruled by their passions rather than by intellect. That sort of reaction, though, is sometimes self-serving and inconsistent. I can’t dispute that it’s sometimes a justified reaction – there are surely instances of artists and writers who have the view that whiteness has some sort of monopoly on sophistication, with blackness representing some form of primitivism.
But the demand for us to respect cultural preference in these matters is self-serving in the sense that it forestalls any possible debate or reflection on the merits of the artwork. Not the merits in terms of quality and originality, which are a separate matter, but the merits in terms of the discomfort and self-reflection the artwork could inspire. The easiest way to justify poor arguments or mistaken ideas is to refuse to discuss them – and if it is a mistaken idea that presidents, parents, or people in general merit protection from these sorts of insults, playing the race card or the culture card serves to rule that discussion out of order.
Then, the reaction is inconsistent because it frequently expresses a prejudice of its own. Instead of defending the dignity of anyone, from an egalitarian anti-racist or anti-sexist perspective, we mostly hear silence when a Jackson Mthembu or Marius Fransman says abusive things about Helen Zille or Lindiwe Mazibuko. Or, for that matter, when Mazibuko is called a “housenigger”, or Zille is threatened with rape on Twitter – both of which occurred last week (but not for the first time) in social media chatter during the march on Cosatu House.
Is this because they can deal with it, where Zuma cannot? Or because they’ve earned it, where he has not? An answer to either question will expose deep prejudice on the part of those who think these things – so, better not to think about it. Or is it simply the case that because Zille and Mazibuko aren’t of a communitarian mindset themselves, this cultural norm of defending each other against insult doesn’t apply in their favour?
If the latter is the unconscious motivation for this inconsistency in what results in outrage and what doesn’t, we can ask a follow-up question: exactly which categories of human does identity politics grant special protection to, and on what grounds is this discrimination justified? I’m not talking about recognising that certain groups of people might have certain sorts of sensitivities – that they do, and sometimes for very good reason – but rather about whether we’re comfortable with certain sensitivities receiving preferential treatment in law or public opinion.
I don’t know how whiteness should look at Murray’s painting. But I do know that I could imagine a person being offended by a similar portrayal of their father. And I do know that a black person might not object in the slightest to Zuma being disrespected by this painting, because of the belief that Zuma has done little to merit that level of respect. Among this range of responses, though, it’s unclear whether we’re acting out of principle, out of prejudice, or out of reaction to prejudice – whether perceived or actual.
Zuma can by all means test, in court, whether Murray’s aesthetics and cultural norms should bow to his. For Zuma to win, though, would require demonstrating that his dignity has actually been impaired, and not just that his feelings were hurt. And I don’t know about you, but I already had the impression that Zuma was a rather sexual creature. Not because of some identity politics claptrap, but simply because he has “four wives, two exes and 22 children by ten different women”, as The Economist succinctly put it.
As for the painting itself, of course it’s disrespectful – I’d imagine that’s the point of the painting. You might think the painting in unacceptably bad taste, but your aesthetic preferences and cultural norms are of no more consequence than anyone else’s – at least in theory. In this case, where the ANC has joined Zuma’s case as second applicant, it seems that theory will soon (and, again) be tested – leaving us with one more reason to respect them both less.
As submitted to the Daily Maverick.
It’s always a surprise to find oneself agreeing with Floyd Shivambu, but if President Jacob Zuma really did say what he’s reported to have said at a church service on Sunday, he should certainly face his day in court. Not only a court involving advocates and charges of corruption, but also the court of public opinion, where he should be found guilty of a gross lack of judgement in using intolerant and divisive rhetoric to divert attention from the ANC Youth League’s criticism of him.
If a Helen Zille tweet speaking of “education refugees” can result in a week of widespread outrage, how is it the case that Zuma can effectively say that the non-religious have no humanity without (at least) equivalent levels of outrage? In fact, he should not only face criticism from the public and censure from the party, but if you support the hate speech provisions in our law, this should perhaps also be a matter for the courts.
“We need to build our nation because presently we have a nation of thugs. This is a task faced by the church. Fear of God has vanished and that means that humanity has vanished”, is what Zuma is reported to have said to the United Congregational Church of Southern Africa. We do indeed need to build our nation, but as I’ve previously argued, when it comes to moral leadership Zuma is hardly the man for the job.
The church can certainly play a part – a large and possibly effective part, seeing as the majority of South Africans are members of some church or another. And when the church focuses on respect, love, compassion and other sorts of virtuous qualities, I wish them all possible success. But when the church that our new Chief Justice belongs to endorses the view that homosexuality is a sickness that can be “cured”, it should be immediately clear that churches have no monopoly on morality.
My previous columns have frequently discussed the absence of a positive correlation between religious belief and moral virtue, but this is not the point here. Whether it’s true or not that religion can encourage those virtues, the fact remains that non-believers are in no way handicapped when it comes to discerning right from wrong. We use different standards to do so, yet mostly end up with the same conclusions as the religious do.
This is obviously so, because most of these conclusions are obvious ones that anyone living amongst others would reach. We all have an equal investment in social cohesion and freedom from fear, and shared rules make those goods possible, regardless of how we reason our way to them. In South Africa, as in many poor countries, humanity “vanishes” largely because people are materially insecure, and resort to opportunism to address those insecurities.
If your life is miserable, you’re less invested in the future, and more invested in seizing opportunities where you find them. The narrative of a harmonious “rainbow nation” only gains traction if you have reason to care for the welfare of others, and it’s not always the case that we do. The church can provide reasons of this sort, yes – but stronger and more universally respected reasons are secured when people have jobs and food, perhaps along with a government they can trust to not exploit them.
If it’s only fear of God that keeps religious people from breaking laws or harming others – or even from having humanity – then we should be seeing far worse moral crises in secular countries than we do in religious ones such as ours. And what does lacking humanity mean? Are secular folk simply lacking some moral property, or are we somehow not even human on Zuma’s reckoning? And what does it say about the moral character of the religious when the implicit claim is made that without religion, they’d suddenly discover or rediscover the impulse to rape, rob and murder?
Whether you call it “humanity” or not, President Zuma, many of us don’t do these immoral things due to the belief that it’s wrong to do them. As much as I’m willing to say that your religious beliefs are false, I’ll only start saying that you lack humanity when you act like you lack humanity – not only because you have a different worldview to mine.
Like perhaps now, where you essentially tell me and all other non-believers that we are qualitatively inferior to you and other believers. You – the man who hasn’t gone more than a couple of months without some press coverage on things like rape trials, dodgy arms-deal allegations, shady friends, financial mismanagement, corruption or reckless sexual behaviour.
I get that you need to defend yourself against the current round of attacks from Shivambu and others, and that you’re heading into a delicate situation in Mangaung later this year. You’re entitled, and would be expected to, defend yourself by rallying religious support. But you can do so without calling my humanity into question. Choosing to do so is divisive, inflammatory, and intolerant of any worldview that doesn’t accord with your belief in God.
And it certainly seems to lack humanity to me. But then, perhaps I lack the necessary qualifications to speak as a human at all.
As submitted to Daily Maverick
We’ve read plenty of opinion in Daily Maverick on Premier Zille and HIV in recent weeks. And while encouraging thinking and debate on HIV and Aids is crucial, emotive topics such as this lend themselves quite easily to caricature – perhaps especially when protagonists in the discussion describe opposing views using hyperbolic labels such as “fascist”.
In Sipho Hlongwane’s column linked above, he asks whether Zille’s followers agree with her views on criminalising HIV and if not, why their opposition is mostly silent. While I reject the implicit association of a political party and its policies with one individual’s views (even if that individual is the party’s leader), I’ve expressed my opposition to those views in a previous column.
A broader issue raised by both the idea of criminalising HIV transmission as well as something like the Get Tested campaign is the extent to which scientific knowledge should inform policy. To put the issue that baldly might lead to some shaking of heads, in the sense that it might seem obvious and unworthy of debate that our scientific knowledge should inform policy.
But judgements often need to be made, and regardless of what the facts might be, we know that many – perhaps the majority – of votes are cast on the basis of perception. This is part of the reason that it becomes plausible to accuse a leader of populism, as some critics of Zille have done in this instance, or for her to accuse critics of fascism or “slacktivism” (itself often a grossly unfair charge, in that the only voice most of us have comes from behind our computer monitors, from where we are typically not able to control the budgets of state organs).
What I mean is this: On the one hand, the issue of whether criminalising HIV is a good idea or not could be regarded as a simple one, answerable though data telling us whether doing so results in fewer cases of transmission. With Get Tested, we could ask whether the campaign results in more people knowing their status, thereby potentially entering the treatment and counselling net. (Briefly, on the topic of Get Tested, I must regretfully withdraw some of my previously expressed support for the campaign, now that we know that baseline figures for testing rates pre-Get Tested are not available – meaning that we have no way of knowing how effective the campaign has been.)
On the other hand, the issues can never be this simple, because even if we all agree that control of the HIV epidemic is our most pressing concern, other values can nevertheless limit our pursuit of that goal. But what if the data did show that criminalising HIV transmission actually worked, or that Get Tested resulted in a 10% increase in the number of people who were tested for HIV? Would opposition to these measures cease?
My suspicion is that they will not, because we seem reluctant to trust the data to inform policy above all else, and because we’re unwilling to regard ourselves as one trivial data point in the aggregate. We’re of course not trivial to ourselves, and justifiably fear (for example) the imposition on our time that mandatory HIV testing would entail. At the same time, we might be perfectly happy for our sexual partners to engage in such testing, and to hypocritically insist that they do so.
In other words, we assign individual agency a greater value than we do the collective good. Which is as it should be much or even perhaps most of the time, at least if you subscribe to broadly liberal principles. But liberal-minded folk are still part of that collective, and can sometimes benefit more as individuals by focusing on the good of that collective, seeing as there are so many more of them (capable of doing you harm or good) than there are of you.
One particularly interesting test-case involving this conflict between perceived impositions on individual liberty versus the good of the collective is blood donation; and in particular the question of whether the South African National Blood Service and their international equivalents should accept donations of blood from homosexual men.
Gay men who have had oral or anal sex with another man in the last six months (whether protected sex or not) cannot donate blood in South Africa. In the UK, the deferral period for this category of donor was recently reduced to one year, while a lifetime restriction still applies in the USA for men who have had any sexual encounter with another man since 1977.
The phrase ‘category of donor’ is key to the issue I am raising here: We don’t easily think of ourselves as belonging to a category, no matter how clearly the data shows that people of type X, or who engage in behaviour Y, on aggregate merit treatment Z. This is the curse that actuaries have to bear: Their models that price our insurance premiums or motivate for medical interventions such as those mentioned above are in constant competition with the Pythonesque reality of all of us insisting in unison that “We’re all individuals”.
But laws or insurance premiums can’t be tailored to individuals. As much as we are individuals to ourselves, interventions intended to work on aggregate have to treat us as belonging to a category – and the question then becomes how those categories are defined. And here, we need to start thinking about the least wrong way of doing this, and perhaps being more willing to tolerate principled ways of treating us simply as a number.
Legislation based on one person’s moral viewpoint, in opposition to the available evidence, is far closer to most wrong than to least wrong. And science utterly divorced from morality offers its own nightmares, as a Twitter friend reminded me in a conversation on this topic. I’ll return to the specific case of blood deferrals for homosexual men – and other “categories” of human – in a future column.
For now, though, the concern is this: Seeing as most of us know little about science beyond misleading headlines, and our understanding of morality is largely subjective, perhaps more of us should be willing to respond as that lone voice in the crowd did in Monty Python’s Life of Brian. When Brian told the crowd “You’re all different!”, and they responded “Yes, we are all different!”, his muted response was simply “I’m not”. And neither, most of the time, are the rest of us.
As submitted to the Daily Maverick
As T.O. Molefe pointed out in a column last week, we can legitimately question whether a campaign like Get Tested will have any long-term effect on the willingness of South Africans to get tested for HIV. Launched by Premier Helen Zille to coincide with 16 Days of Activism for No Violence Against Women and Children, Get Tested offers a financial incentive for knowing your HIV status. Anyone who volunteers for HIV testing between November 28 and December 9 stands a chance of winning a first prize of R50 000 or one of five R10 000 runner-up prizes.
You might recall that Zille attracted a significant amount of criticism for her stated intentions of criminalising HIV transmission. As was the case then, an apparent problem with Get Tested is that according to Molefe, it tries “to achieve individual thought and responsibility by taking away thought and usurping responsibility”. Furthermore, Molefe draws on the work of Daniel Pink in arguing that the effects of the incentive will only be short-term, falling away once the prizes are no longer available.
Both of these criticisms are to my mind at best not compelling, and at worst unfounded. While it’s true that behavioural economics is a contested science, the contestation more typically relates to whether findings in experimental conditions cross over into informing policy in the real world, and to whether the rise of “choice architects” – in other words, those who design the “nudges” – present an illiberal incursion into our freedom to choose.
Pink’s claim that carrots and sticks are less effective, and potentially harmful, in addressing complex 21st century problems raises questions relating to the design of these nudges. These questions don’t however rule out the potential usefulness of nudges. If the desired behavioural change depends on tweaking complex motivational forces, we might struggle to achieve it – but there seems little difference in kind from more simple behaviours. The question is one of degree only.
Of course, there might be problems too subtle to address via these sorts of nudges, but given that we’re talking about a science that arguably only came into existence in 1979, with Kahneman and Tversky’s “Prospect theory: An Analysis of Decision Under Risk”, it seems rather hasty to claim that the experimental work conducted by George Ainslie, Gary Becker and a host of others has been premised on problems already superseded by newer and more complex ones.
Despite this question, it remains true that our models of intertemporal choice behaviour and hyperbolic discounting (in this context, the choice habits that could result in people being tested now for the chance of winning money, instead of for their own long-term benefit) are imperfect. They could perhaps even be critically flawed, and as I mentioned earlier, applicable more to experimental conditions than to real-world policy.
But the successes of these sorts of interventions – at least on pragmatic criteria – seem to be far outweighing their failures. Long-term trials such as the 3-year J-PAL immunisation intervention in rural India have been tremendously successful. Offering parents 1kg of lentils and a set of metal meal plates upon completion of a course of immunisation for their child resulted in a more-than-doubled immunisation rate at half the cost, thanks to economies of scale resulting from increased uptake.
There are similar tales of success with HIV testing in South Africa. The 2008 intervention by the Men By the Side of the Road charity, which offered unemployed men R75 to test for HIV had a 100% uptake in the group it targeted, along with a waiting list in the thousands. The Discovery Health/Sunday Times Right to Know campaign (July 2008 to June 2009) attracted 55 000 volunteers for testing, thanks to the promise of one person per month becoming R100 000 richer.
But the question is of course sustainability, and whether these incentives have a long-term impact on behaviour. And here is where I’d urge Zille’s critics to a little more temperance, in that if relatively low incentives of one R50 000 prize and five R10 000 prizes end up resulting in significantly increased rates of testing, the R100 000 total spend could end up being a very worthwhile (and sustainable) investment, given that the Province currently spends a reported R661 million on its HIV/AIDS programmes per year.
What of the criticism that choice-architecture of this sort is somehow grossly illiberal, “taking away thought and usurping responsibility”? First, it’s perhaps worth noting that the liberal goal of securing freedoms is surely maximised by both good health, and by decreasing expenditure on preventable diseases so that the funds can be used elsewhere. The question is how we secure those goods, and whether we impinge on liberties excessively in doing so (as we would do by criminalising HIV).
While it’s true, as Molefe says, that HIV testing should be its own incentive, I’d suggest that those of us who know this already get tested. Offering people the chance of a cash prize for HIV testing can only increase the likelihood that any first-time testers can be exposed to that message, resulting in a probable net gain in terms of awareness. It’s not the case that the Get Tested campaign is replacing ordinary awareness campaigns – it’s a supplement to them, and one that seems worth trialling given its low cost.
Furthermore, it’s a supplemental sort of intervention that is widely accepted, rarely attracting the sort of criticisms Zille is confronting here. What, for example, do critics of choice architecture think of Discovery Health’s Vitality programme, which by Molefe’s reasoning “sends the unintentional message that [good health], something which is an incentive in itself, is so abnormal and exceptional a behaviour that those who get tested are entitled to a reward”?
While nudges like the Get Tested campaign are sometimes accused of violating human autonomy, it’s difficult to be sympathetic to these charges. South Africans retain their choice to be tested or not – and if some who would otherwise not be tested now come forward, they do so because they autonomously desire money. Their exercising that autonomy is potentially to all of our benefits, given the level of public expenditure on AIDS.
In short, the harms of Get Tested are unclear while the possible benefits are not. Given that it will cost us little in terms of money – and nothing, as far as I can tell, in terms of liberty – we should give it a chance. If it ends up working, some of those entitlement horses might eventually end up being able to find their own way to the watering-hole.
As submitted to The Daily Maverick
It’s easy to understand why the Premier of the Western Cape, Helen Zille, wants to do something to minimise the prevalence of and costs associated with HIV infection. According to her remarks at a wellness summit earlier this month, HIV treatment costs the provincial government close to R2 billion per year – and that is no small sum to spend on a preventable disease. Her proposed solution to this includes wanting to charge men who have unprotected sex with multiple partners with attempted murder.
In an interview with John Maytham on CapeTalk567 on November 9, Zille presented three complementary measures for minimising the problem of HIV infection: compulsory testing, compulsory disclosure of HIV status to potential sexual partners, and compulsory wearing of condoms in non-monogamous sexual relations. We were told that she desires for these measures to become law, and that similar sorts of responses to AIDS had been effective in various other jurisdictions.
There is much one can agree with in terms of her motivations – even if not in terms of the proposed remedies. It is in all of our interests to have public funds spent in the most effective possible ways, and it’s also normally in our interests to safeguard ourselves against threats to our health. But we pursue those interests unreliably and sometimes irrationally. Humans are disposed to something called hyperbolic discounting, namely the preference for smaller but sooner rewards over larger but later rewards.
What this means is something we all know well – thinking we’ll go to the gym, stop smoking, or start eating more healthily tomorrow. We’re enjoying it now, and we find it easy to discount the long-term costs of satisfying our immediate desires. This is not to say that it’s obligatory to care about your own health or longevity. It would certainly be weird, but not impossible to imagine being enough of a hedonist that you commit yourself to a shorter but more Bacchanalian life, understanding the potential consequences in full.
The concern raised by Zille is that we might be accused of excusing or forgiving reckless behaviour by funding treatment of its consequences from public coffers. While the state guarantees the right to medical treatment, the argument was made that these rights entail certain responsibilities – namely those three responsibilities outlined above.
But this conclusion would be somewhat hasty. While the idea that “rights entail responsibilities” seems axiomatic to many, it isn’t quite true. A positive right, where something is provided (such as a right to healthcare), is provided by the state as an obligation funded by our taxes. It’s certainly regrettable that we cause inefficient spending of that money through poor choices, but those poor choices don’t make us liable for an increased contribution to healthcare funding.
Leveraging that regrettable inefficiency into changed behaviour is a moral issue, but not one that can easily be legislated (whether doing so is desirable or not). We can try to persuade people to live healthier lives – for their own good as well as for the good of efficient healthcare spending – and we can try to guilt them into not allowing their preventable conditions from swallowing a disproportionate share of available funds.
However, if HIV infection following unsafe sex should become your legal responsibility to avoid, one can start to wonder where these sorts of responsibilities would end. I don’t have to have a car accident for alcohol consumption to become a cost to the state. I could drink to excess most nights in the safety of my own home, and still eventually require treatment for cirrhosis. Likewise for smoking and lung cancer or emphysema, and of course for my dietary choices also, where my diabetes or high cholesterol end up requiring expensive medication, surgery, or both.
These things might differ in scale, but not in type. It’s easy to find examples of self-inflicted harms that cost everyone else money through public provision of treatment, and it serves us well to try and eliminate all of them. But doing so always comes at a cost, and that cost can be a significant erosion of our liberty. We could, for example, require that everyone hand their car keys to the restaurant host, to only be returned on your successfully passing a breathalyser test. We don’t do this because of the belief that it’s appropriate to punish people for actually causing harms to others, and not appropriate to regulate their lives to the extent that it becomes impossible for them to cause those harms.
It’s not only concerns regarding the erosion of liberty that should make us wary of calls to criminalise unsafe sex in general, or force us to be tested for HIV. Readers of The Daily Maverick would mostly be in the position of having ready access to medical care, including things like HIV testing. It could be performed as part of an annual check-up, or even provided at the workplace. But this won’t be the case for the rural poor, meaning that the state would have to spend the money to roll out nationwide testing – or inadvertently make it the case that being poor automatically means being a criminal under this sort of legislation.
Then, it is also not clear that criminalisation of HIV does any good, despite Premier Zille’s claims to the contrary. Edwin Cameron’s 2008 paper in the Journal of the American Medical Association makes reference to a study comparing HIV infection in Illinois (which requires HIV disclosure and criminalises sex without informed consent) and New York (which has no such laws). No statistically significant difference in sexual behaviour was found in this comparison – and this in a country with significantly higher literacy than ours, and also one in which myths regarding HIV and its spread are largely absent.
There is also a stigma attached to HIV, and its criminalisation cannot but exacerbate that. Cameron points out that:
Tragically, it is stigma that lies primarily behind the drive to criminalization. It is stigma, rooted in the moralism that arises from sexual transmission of HIV, that too often provides the main impulse behind the enactment of these laws.
Even more tragically, such laws and prosecutions in turn only add fuel to the fires of stigma. Prosecutions for HIV transmission and exposure, and the chilling content of the enactments themselves, reinforce the idea of HIV as a shameful, disgraceful, unworthy condition.
This is not to say that we shouldn’t criminalise knowing infection of others with HIV, just as other sorts of intentional harms to others are criminalised. As I started out by saying, one can sympathise with Premier Zille’s frustrations, and her desire to go further than this. HIV and AIDS are significant problems, and large sums of money are being spent on treatment that could instead be spent on the treatment of unpreventable medical conditions. But addressing this one – HIV – with the force of law requires something like a camera in every bedroom, and could also be accused of unfairly targeting the poor and women.
Public awareness and understanding of the harms we can do to each other and our responsibilities to avoid those harms takes time to generate, especially in a context where under-education and mythology – in this area as well as others – abound. We need to keep informing and educating, but the law is too blunt an instrument to arrest HIV without compromising other values we hold dear. To think that it’s our best recourse seems utterly wrong-headed, and just about as crazy as believing that you live in a haunted house.
Also read Gavin Silber and Nathan Geffen on this topic.