Constitutional Hill

Law, politics and party disciplinary processes

Jan 26th, 2012
by Pierre De Vos.
20 comments

Over the past few months President Jacob Zuma and other ANC leaders have complained about the courts interfering in the policy decisions of the executive, arguing that one can distinguish between legal decisions on the one hand (the realm of the judiciary) and policy choices and political decisions on the other hand (the realm of politicians).

This complaint probably stems from the fact that President Zuma, other Ministers, MEC’s, Mayors as well as the Judicial Service Commission (JSC) have all suffered embarrassing legal defeats before our courts over the past year. It is unclear why they have lost so often and so badly. One possibility is that they had received appalling legal advice from their advisors (or in the case of the President, from the Minister of Justice). Another is that they had failed to follow the sound legal advice provided to them.

This distinction between legal issues and policy decisions is, of course, difficult if not impossible to maintain. For example, clearly the President has a wide political discretion to appoint a man or woman of his choice as the National Director of Public Prosecutions (NDPP). But if he were to appoint a convicted fraudster to that position this would be unlawful as the National Prosecuting Authority Act (passed by the ANC dominated Parliament) requires him to appoint a “fit and proper ” person as NDPP.

In such a case the court would have a duty (if called upon to do so) to enforce the law and would have to declare the appointment invalid. If the court did not have the power to enforce the prescriptions of any law, the law could be ignored and then we would potentially live in an anarchic and lawless state. But in declaring the appointment unlawful, the court would interfere with the policy choice of the President – albeit a choice that was exercised in a manner that flouted the law. In a case like that the distinction between policy and legal considerations would dissolve and would become meaningless — unless one really believed that law was not binding on the executive at all and that a court should therefore not ever have the power to enforce the provisions of a law that was passed by the legislature. Such a system would be akin to an absolute monarchy or a dictatorship in which the legislature would perform a symbolic function as a pretend-democratic chamber whose decisions would be ignored at will by the President.

But two recent decisions by the ANC and the DA do actually demonstrate the problem of purely political decisions masquerading as quasi-legal decisions. Purely political decisions recently instigated by Zuma and Zille have been dressed up as disciplinary cases in order to provide a fig leaf of respectability and legitimacy to the witch-hunts against the recalcitrant party members who have challenged the authority of the respective party leaders.

The first case is well known: a selected number of the “top six” leaders of the ANC (which happened to include Jacob Zuma and Gwede Mantashe who were both known enemies of the accused) decided to have Julius Malema charged with contravening certain provisions of the ANC Constitution. Malema was then “tried” before an ANC disciplinary committee. The committee comprised of “disciplined members of the ANC” and can in no way be considered to be independent or impartial as it lacked even the most basic safeguards that would have secured its independence and impartiality. The conviction of Malema was a foregone conclusion but in order to give this outcome a semblance of legitimacy the disciplinary hearing was conducted as if it was a legal one.

The legitimacy of the process was, however, compromised (despite the pretence at legality) because the disciplinary committee members who previously had run-ins with Malema did not recuse themselves and the committee also “forgot” to hear evidence in mitigation after it found Malema and other members of the ANC Youth League guilty of the charges.

The DA has meanwhile launched disciplinary proceedings against DA MP Masizole Mnqasela, after he angered its leader Helen Zille. This he did because during a heated internal party election contest for Parliamentary leader of the DA he stated on prime-time radio that Lindiwe Mazibuko was not black enough to become the DA’s parliamentary leader. Mr Mnqasela had dismissed Ms Mazibuko’s candidacy as “window-dressing” in the lead-up to the DA parliamentary caucus election.

Zille was not amused by this and launched a scathing attack on Mnqasela by saying he had “made a fool of himself and the party”. Writing in her weekly newsletter, Zille equated Mnqasela’s controversial remarks to “Verwoerdian thinking”, referring to the architect of apartheid, Hendrik Verwoerd. “Even in the DA, Verwoerdian thinking sometimes rears its ugly head … I may have missed something, but not once during her campaign did Lindiwe or her supporters ever say she should be elected leader of the caucus because she is black,” Zille wrote.

The DA Constitution allows for a disciplinary committee to hear such a case. Such a committee is not independent but is elected by politicians who are also leaders of the party (on a regional basis) and its members will in all likelihood not wish to upset the party leadership – at least not if they had any thoughts of getting ahead in the party and maybe even becoming a shadow minister of bottle washing or of Zille praise singing. The committee is therefore neither independent nor does it have the necessary characteristics of a body that would act impartiality (or that one could reasonably be expected to act impartially). Zille (like Zuma) has made it clear what outcome is expected of this quasi-legal DA disciplinary process and I, for one, would be very surprised if Mnqasela is not found guilty of some or all of the charges against him.

Ironically, these two examples illustrate (to some degree, at least) the legitimising power that the law still exerts over our imaginations. It reminds us of the dominance in our culture of the liberal view that the law is (almost) always a neutral and objective mechanism for the fair resolution of disputes (even though the presiding officers might get it wrong in exceptional cases and might rely on their own personal ideological views when they resolve a dispute).

But it is even more ironic that by using quasi-legal processes in such a blatant and obvious way to try and legitimise decidedly political decisions, Zille and Zuma run the risk of unmasking the political nature of most legal processes and of helping to delegitimise the liberal version of the law, a version that assumes the law is a neutral and objective mechanism for the imposition of violence on citizens. Because those highly politicised disciplinary processes abuse a quasi-legal process to give some credibility to what are essentially political decisions to act against the members of two different political parties who had dared to cross the leader of the respective parties and threatened the authority of both Zille and Zuma, people might well become cynical about the law more generally.

They might begin to think that law is merely a form of politics perpetrated by members of an unelected clan of legally trained judicial officers. After all, lawyers already know that it can matter a great deal who the presiding officer in a case is. They also know that external political considerations may play a role in the decisions taken by a presiding officer. I recall that in the earlly 1990ties, the Supreme Court of Appeal (SCA) suddenly softened its stance on ANC aligned criminal defendants and reduced Winnie Mandela’s sentence so that the then wife of Nelson Mandela would not have to go to jail. That outcome would have been unthinkable in the mid 1980ties.

This is dangerous terrain for lawyers and judges because political demagogues and populists might easily exploit this ambivalence in the law’s relation to politics to try and delegitimise the courts and the legal process entirely. And this would open up a space for an entirely lawless and authoritarian regime to emerge in which the law on paper would mean nothing more or less than what the President said it meant.

Lawyers therefore face the challenge of producing plausible arguments about the interaction between law and politics, arguments that would acknowledge the fact that legal rules (and the way they are interpreted and applied) can hardly be said to be neutral, but that make strong claims about the ability of such legal rules (to some extent, at least) to constrain the judges that interpret and apply them so that those judges do not merely impose their own personal political preferences on the parties in a dispute before them.

Posted in: ANC, DA, Helen Zille, Jacob Zuma, Judiciary.

On race and sex and unexamined assumptions

Jan 25th, 2012
by Pierre De Vos.
51 comments

The reaction from many people to a poster released by the Democratic Alliance Youth (DASO), in which they tried to make a point about the importance of trying to achieve a non-racial society in South Africa, is rather amusing and also quite revealing.

On the one side you have the lunatics (sorry Gareth!) like Connie van der Walt who wrote that if the guy in this picture was her son she would “shoot him dead like a bad dog”. On the other hand, there are those who interpret the poster as subliminally racist, either because it depicts a white and black person in an intimate pose at all, or because (slightly more plausibly) it depicts a white man and a black woman in an intimate pose.

Others have, of course, been outraged by the “disgusting pornography” of it all, given the fact that the two people in the poster appear to be naked from the waist up. (The people who pretend to be shocked by a mild poster like this, are probably not familiar with real pornography and would probably not make good classifiers at the Film and Publications Board.)

What is going on here? I believe (and I would, would I not?), these reactions demonstrate a few revealing things about our communal attitude towards race, sex and gender.

First, it seems to me that these reactions demonstrate the obvious fact that certain opponents of race-based affirmative action, who argue that we should not rely on racial categories when we devise measures to address the effects of past and on-going racial discrimination, are wrong. These critics argue that racial classifications are always morally repugnant, that it is in any case not always easy to determine what the race of a person is, that people who embrace non-racialism might not even see race at all, and that redress can be achieved without invoking such categories as people suffer disadvantage not because of their race but only because of their lack of access to financial and other resources.

I think the poster is rather clever (although DASO probably did not think about this) because no one who sees it will be able to deny that they noticed that the man and the woman in the poster look, well, “different” from each other. How we respond to it will of course depend on our deeply held (and perhaps unexamined or unknown) views on race and sex. We might see a white man once again exploiting a black women (despite the fact that the two people look more or less the same age and are both beautiful), or we might see two heterosexuals who are going to get a lot of flak from their parents, or (I confess this was my first thought) we might wonder whether the white guy is actually going to take his girlfriend home and whether he will one day marry her.

Given this obvious fact, how do people continue to assert that race has stopped mattering in South Africa and that most well-adjusted middle class (white?) people never see race anymore? How can we maintain the fiction that when a black person and a white person apply for the same job, we do not take any notice of the race of the applicants – unless we are forced to do so because of the requirements of affirmative action?

The poster reminds us that (as I have written before):

race hovers not far from the surface in private or other everyday settings: as an unspoken presence, a (wrongly) perceived absence or as a painful, confusing, liberating or oppressive reality in social, economic or other – more intimate – interactions between individuals or between groups of individuals. In South Africa we cannot escape race. We cannot escape our own race. Even when we claim that we have escaped the perceived shackles of race, we are merely confirming its presence by our stated yearning for its absence. And because of this we cannot claim that race does not matter when we talk about redress.

Second, the poster reminds us that many people (of all races) have internalised an apartheid mind-set regarding race, sex and gender and are utterly incapable of seeing intimacy between two people of different races and sexes in anything but starkly racial and gender stereotypical terms. Thus they claim that the poster reflects a racist and/or sexist mind-set because it depicts a white man (a man being the person who supposedly “is always in charge” in a sexual interaction) with a black woman (who is supposedly “always submissive” and to some extent the victim of the man’s sexual aggression).

To such people the thought never seems to have occurred that the women in the poster could be in charge (in charge emotionally, financially and/or physically) and that we cannot tell from the poster whether this is so or not. They have jumped to conclusions (based on their own internalised prejudices and stereotypical assumptions about race and gender and sex) that the woman in the poster is a meek receptor of male aggression. Maybe some have done so because the poster originated with the DA and in that context they are prepared to expect that the DA shares these racial, sexual and gender prejudices. But I would guess most did so because of their own prejudices of which they might not be aware – and not because of their view of the DA.

Lastly, the poster reminds us that many South Africans have internalised a notion of sexuality which has its origins in Judeo-Christian culture. We might call ourselves “Africans” but we often think about sex like modern day Christian missionaries. The assumption underlying the Judeo-Christian tradition is – as Susan Sontag has argued – that a person can be judged as “good” or “bad” (in other words, that a person can be judged as moral or immoral) almost exclusively based on that person’s sexual desires and/or conduct.

Sex is therefore always viewed as a “special case”. While we may not be judged for letting a man starve, we will be judged for wanting to sleep with that man. While a person (of whatever race) may therefore think of him or herself as having no racial prejudices, these prejudices might be flushed out when confronted with a poster that hints at sex between two people of different races. Seeing a black woman in the arms of a white man, the person recoils, either because the picture evokes (in the mind of the racist) unspeakable immoral couplings between the two, or because it evokes (in the mind of the person infected by colonial ideas) images of sexual exploitation of a black woman by a white man.

Leaving aside the white racists, many people would not recoil if he or she saw a picture of black man and a white woman sitting next to each other around a boardroom table. But when they see this picture, they do recoil instinctively because sex, somehow, is different. How ironic that they might then produce arguments that might sound progressive, arguments about the exploitation of black woman, while they are justifying the prejudices which they carry with them, prejudices that can be considered as one of the “special gifts” bestowed on indigenous South Africans by the colonial culture.

Which brings me to the second poster of the DA Youth depicted in this post. What, I wonder, would the reaction be to this poster of two men of different races? Would the same people who recoil at seeing a white man in an intimate situation with a black woman feel comfortable with two men of different races in an intimate situation? If they do not recoil, does this say something about how we construct woman as necessarily passive, powerless and meek? If they do recoil, do they know that their minds have been colonised by the ideas first brought to South Africa by white missionaries? I wonder…

Posted in: DA, discrimination, Race, Sexual orientation, Transformation.

Time to stop paying traditional leaders?

Jan 24th, 2012
by Pierre De Vos.
83 comments

Zulu monarch King Goodwill Zwelithini earlier this week reportedly criticised people who engaged in same-sex relationships, labelling them “rotten”. “Traditionally, there were no people who engaged in same sex-relationships. There was nothing like that and if you do it, you must know that you are rotten. I don’t care how you feel about it. If you do it, you must know that it is wrong and you are rotten. Same sex is not acceptable,” he reportedly said.

(The Zulu Royal Household has since criticised what it called a “reckless translation” of Zwelithini’s speech – a “reckless translation” perhaps being one that exposes the “King” as being a bit slow and thus not very familiar with the history of his “subjects”. “At no stage did His Majesty condemn gay relations or same sex relations,” Prince Mbonisi Zulu said.)

I will leave aside for the moment the fact that anyone who is familiar with the academic literature would know that while the notion of “perverted homosexuality” as an identity was probably imported into Southern Africa by European missionaries, no credible historian will now deny the existence of certain kinds of same-sex intimate conduct over the past two centuries in Southern Africa – no matter how shocked the (white) missionaries might have been by this.

Besides, one cannot expect the “King” to read academic journals and popular articles on homosexuality merely because he wishes to express himself on this topic. He must be a busy man, what with having to spend the R883 161 salary he receives annually from the national government, and with having to ensure that the Zulu Royal Household budget of just more than R55-million for the 20011/12 year is spent wisely. (Apparently R34,2m is to be used over the next three years to renovate his palaces who must be in a desperate state of disrepair and this must also keep him busy.)

I would rather focus on a more interesting constitutional question, namely why on earth do we have officially recognised Kings and Queens and Chiefs in South Africa and why are we paying through our noses for their upkeep? After all, traditional leaders (including the Zulu King) are not democratically elected (they inherit their titles) and their exercise of power over between 15 to 20 million South Africans may appear utterly undemocratic. Secondly, traditional leaders are mostly men, which go against the principles of non-sexism that is entrenched in the founding values of our Constitution.

It must therefore come as a surprise that section 211(1) of the Constitution explicitly recognises the “institution, status and role of traditional leadership, according to customary law” – although this recognition is made subject to the other provisions in the Constitution.

Given the fact that most traditional leaders were co-opted by the apartheid state to help the state to control the rural population of South Africa and to administer apartheid policies, one might well have thought that ANC politicians and the supposedly “forward looking” business lobby represented at the time by the so called “reformed” National Party might have wanted to get rid of this undemocratic system of inherited and elitist leadership when they negotiated the 1996 Constitution.

Recall that during apartheid, labour bureaux regulated the supply of labour to the mines, commercial agriculture and industry. In rural villages the administration of the pass book and the running of the labour bureaux, where permits had to be annually renewed, were the responsibility of the chiefs, who charged a fee for this “privilege”.

The 1951 Bantu Authorities Act formed the lynchpin of this system of indirect control of the rural poor by the apartheid government via the system of traditional leaders. Power rested with a hierarchy of (mostly) compliant chiefs, who were made utterly dependent on the patronage of the Department of Native Affairs. Chiefs were no longer accountable to their subjects, but to the Department of Native Affairs. Their powers were increased while their legitimacy was being eroded.

However, this system of co-opted traditional leadership was put under severe strain with the abolition of the pass laws in 1986 as this meant that migrant labourers no longer had to present themselves at the Chiefs office in their home village. Chiefs lost their income from registration fees and, to some extent, their control over the movements of their “subjects”. Because “disobedient” villagers could no longer be punished by withholding labour permits and travel documents and as chiefs no longer had the opportunity to collect arrears from their migrant “subjects”, chiefs often reacted by imposing new taxes to make up for the lost revenue.

One way of increasing their income (and retaining some form of control over “subjects”) was for traditional leaders to seize control over communal land and strictly regulating the use of resources (like water, grazing and fire wood) on that land, thus forcing rural poor people to pay for the “privilege” of using these communal resources. Thus the system of communal living was completely subverted in favour of traditional leaders with none of the checks and balances on the power of chiefs which existed in pre-colonial times. Another way of retaining control over “subjects” was through the role played by traditional leaders in interpreting and enforcing customary law rules in traditional courts.

No wonder the ANC, who in exile seemed rather hostile towards the system of co-opted traditional leadership (including towards King Goodwill Zwelithini who at the time was in the pocket of a Bantustan leader called Magosuthu Buthelezi), changed its mind once back in South Africa. In order to defuse the violence between supporters of Buthelezi’s IFP and ANC supporters in KwaZulu-Natal and to gain support from voters living in traditional areas under the undemocratic yoke of traditional leaders, the ANC started wooing traditional leaders.

In this process, the masterstroke of the ANC was for the national government to take over control over the purse strings. Thus Parliament adopted the Remuneration of Public Office Bearers Act in 1998 which prevented Provinces (like the then IFP controlled KwaZulu-Natal) from paying traditional leaders over and above the payment made by the national government in terms of this Act. (This move – along with the buying off of King Goodwill himself – broke the stranglehold of the IFP over traditional leaders in KwaZulu-Natal and allowed for the current resurgence of the ANC in that province in the light of President Jacob Zuma’s election as President of the ANC.)

Meanwhile the Black Administration Act was finally abolished in 2005 and left a power vacuum as it robbed traditional leaders of some of their authority. This may be why the adoption of a Traditional Courts Bill (tabled for the first time in 2008) is reportedly on the legislative agenda for 2012. The draft Bill authorises a traditional court (led not by a judge or magistrate but by a traditional leader authorised to do so by the Minister) to hear and determine civil disputes arising out of customary law and custom brought before the court where the act or omission which gave rise to the civil dispute occurred within the area of jurisdiction of the traditional court in question.

Thus, instead of speeding up the integration of customary law into mainstream law (as one of the three pillars of our legal system), this Bill will have the effect of ensuring the continued marginalisation of customary law, practiced mostly in traditional courts and seldom in High Courts, where judgements are reported and infiltrate the legal consciousness.

Although the draft Bill requires the traditional courts to respect the provisions of the Bill of Rights, it is unclear whether such safeguards will be respected and to what extent “subjects”, especially women who may depend on the goodwill of the chief to gain access to water, grazing for cattle and housing, (or other unpopular individuals like gay men and lesbians) will be prepared to challenge a decision made in such a traditional court elsewhere.

There are going to be serious constitutional problems with this Bill despite the fact that section 211(2) of the Constitution allows a traditional authority to observe a system of customary law, subject to any applicable legislation and customs. This is because section 34 of the Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. This must be read with section 165(2) which states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

Given that the Constitution subordinates traditional leadership functions and structures as well as customary law provisions and their application to other provisions in the Constitution – including the provisions of the Bill of Rights – I would guess that courts staffed by unelected hereditary chiefs will be found to be unconstitutional as they will not be independent and nor will they be likely to administer justice in an impartial manner – especially not to someone who happens to be a women or, god forbid, gay or lesbian.

They would lack independence because they would not enjoy the basic institutional guarantees required for a tribunal or court to be considered as independent. For starters, chiefs are paid by the government of the day and can also be removed as chiefs and they therefore do not have security of tenure. They would also potentially lack impartiality, as those chiefs who happen to be unwise, or are patriarchs or have been corrupted by money interests, might reasonably be perceived as being biased in one way or another.

Which brings us back to King Goodwill and his reported remarks about same-sex relationships: when we talk about transformation and the need to eradicate the vestiges of apartheid thinking, has the time not come for citizens to stop bankrolling the lavish lifestyles of Kings like Zwelithini (with his backward views) and the lifestyles of other unelected traditional leaders? Given the fact that traditional leadership has been totally transformed by the engagement with colonialism and was co-opted by the apartheid government and thus implicated in taking part in the enforcement of sometimes authoritarian controls over rural citizens, should people like King Goodwill not perhaps stop milking the taxpayer and start paying his own way like everyone else?

Posted in: ANC, democracy, Dignity, discrimination, Judiciary, Sexual orientation, Transformation.

On the tragic brilliance of Thabo Mbeki

Jan 20th, 2012
by Pierre De Vos.
205 comments

Former President Thabo Mbeki created the first memorable phrase in our political discourse for the year when he warned against the propagation of “false knowledge” by powerful forces, forces that largely control knowledge production in a world dominated by Western interests.

In a speech, delivered earlier this week at the Stellenbosch Business School, Mbeki seems to argue from a philosophical position that tries to marry very valid post-colonial concerns about the dominance of the world by Western-generated ideas promoted by a Western-centric media and Western military and political power, with insights from post-modern philosophy (in a decidedly Foucauldian turn) about the way in which our thoughts and actions are constrained by what we know and have the intellectual tools to think.

Mbeki quotes Donald Rumsfeld, who famously said:

Reports that say something hasn’t happened are always interesting to me because as we know, there are known knows: there are things we know we know. We also know there are known unknowns: that is to say there are some things [we know] we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tends to be the difficult one.

Of course, it is difficult not to read the speech as an intellectual justification for some of Mbeki’s more disastrous interventions during his time as President of South Africa, most notably his dabbling in Aids dissidence, which we all know did not turn out too well for the former President or for all those who subsequently died of Aids related illnesses after choosing not to take live-prolonging anti-retroviral drugs (or did not have money to obtain such drugs in the private health care sector).

Mbeki seems to believe that one can distinguish between three types of knowledge. First, he seems to believe in something he calls “objective reality” or “objective truths” – that which “can logically and independently be established as ‘the truth’”. This kind of knowledge, he argues, “might very well be at variance with what we as Africans know to be the ‘knowledge’ at our disposal”. In other words, what is generally accepted as “true” (HIV causes Aids; Gadaffi was a tyrant; South Africa has a high crime rate), might differ from what Africans experience to be true.

Second, the knowledge we think are at our disposal may very well constitute “false knowledge” which may not be in accordance with the “objective truth” – independently established as the truth. We nevertheless may think it is true because we are told that it is true by those who control the discourse through control of the media, the culture and the political landscape. Thus we may believe that Gaddafi was on the brink of slaughtering many civilians because he was reported to have warned those who resisted his rule that patriotic Libyans would “cleanse” Libya “house by house” from the rats and cockroaches supporting the uprising against him, but this is a “false knowledge” as he would not have followed through on his threats.

As I understand Mbeki’s speech, he believes that there is also a third kind of knowledge. This is knowledge that ordinary people have about their lives or that is being explored by “outside-the-box” thinkers (like Mbeki!), but which have neither been accepted as “objective truths” nor exposed as “false knowledge” yet. (I imagine for Mbeki this would include the idea that many young people die in South Africa in part because they are poor and malnourished, not necessarily because they have the HI virus – which, after all, cannot cause a syndrome.)

Regardless of whether one agrees with this taxonomy of truth and falsehood, it is difficult to find fault with Mbeki’s contention that knowledge is contested and that the terrain is intensely political – especially for us Africans who live in a world profoundly affected by the consequences of colonialism and the traces of colonialist thinking. It is also difficult to disagree with his plea for more openness and a more critical approach to knowledge production. Only a fool will form firm opinions about world affairs by only watching CNN or Sky News.

Mbeki argues that the “false knowledge”, the kind of knowledge that we just know we know but has not been independently established as true, is produced by those who control the media and the means of knowledge production. That is why “it matters who has the capacity and ability to persuade the public about which ‘knowledge’ is ‘true’, and which ‘false’!” It is only when we democratise knowledge and let a thousand ideas bloom that false knowledge will be exposed and other kinds of knowledge will become accepted and, who knows, even accepted as “objective truth”.

This dialogue, says Mbeki, is important as it may also affect our understanding of what is “objectively truth”. Such truths can be overturned. This is because discovery of “the truth”, and therefore the accumulation of “knowledge”, constitutes an unending journey of discovery and what we consider to be truths today may well turn out to be false tomorrow as our understanding of the world around us change and hopefully deepens.

But how do we distinguish between (tentatively established) “objective truths” and “false knowledge”? And how do we distinguish between valuable truth and quackery? If all “objective truths” may well one day be falsified, why are they true now while “false knowledge” is not? Is it just true or false because powerful people said so? It seems that it is at this point that Mbeki’s valid argument about the intensely ideological nature about the production of knowledge deteriorates into mild paranoia and incoherence. Thus Mbeki warns against the destructive potential of the abuse of “knowledge” by those who exercise power, but does so in rather stark terms:

I say this because of the frightening reality contemporary society faces, of the capacity of a small but powerful minority of humanity, to determine what society should ‘know’, which passes as ‘knowledge’.

Is there really a grand conspiracy to fabricate some kinds of knowledge and suppress other kinds of knowledge to further the interests of those who dominate the world? I am not saying this never happens. After all, facts were twisted and intelligence reports manipulated to try and convince the world that Saddam Hussein had weapons of mass destruction and had to be stopped. But surely, more often than not people are the prisoners of their own world views and actually believe the things that they say and do (just like Mbeki is the prisoner of his own world view and believes the things he says and does.) This might produce tainted knowledge, but seldom because of some grand conspiracy.

Of course, the national and international media selectively report on news events and ignore some events and highlight others. That is why my Cape Times yesterday reported in a screaming front page headline that Baboons have invaded the houses of upper middle class residents, but said nothing about similar trials and tribulations experienced by inhabitants of poor areas of Cape Town. And scientists selectively investigate those problems that they find interesting or that that they think would bring them fame and money. Hence, lots of money is poured into medical research about heart disease and Alzheimer’s and very little on curing malaria. But it is not clear how this is part of a deliberate conspiracy to keep the rest of us ignorant and to push a nefarious agenda.

A second problem is that Mbeki does not consider the possibility that he may be part of the very system that produces “false knowledge” and that he might be producing such knowledge himself to further his own interests. After all, he is a powerful person (and used to be President of the most powerful country on the continent and what he said and did had enormous consequences – sometimes good and sometimes bad) for millions of people inside and outside South Africa. Mbeki somehow seems to exempt himself from the rules of the game that he is critiquing. Only other people fall into the trap of embracing “false knowledge” and only other people deploy such “knowledge” to advance their own interests.

While the rest of us are engaged in a never ending struggle to determine what the “objective truth” might be and while we are continuously duped by powerful dark forces into believing things that are just plain wrong, Mbeki alone (in his own mind) is far too clever to do so and therefore has the ability to identify “false knowledge” and “objective truths” properly. And when he does so, his own self-interests never come into play.

Yeah right.

Has Mbeki not, in the past, perpetuated “false knowledge” to advance what he believed to be his own interests and the interests of the government which he led? Thus, a few years ago Mbeki said in a TV interview that it was just a perception that crime was out of control in South Africa: “It’s not as if someone will walk here to the TV studio in Auckland Park and get shot. That doesn’t happen and it won’t happen.” Within days a CNN journalist and his pregnant wife were held up at gunpoint and robbed outside the very same building. He was defending his government and was trying to persuade us of something that was clearly not true.

And when he started questioning the link between HIV and Aids (“a virus cannot cause a syndrome”) and made statements warning against the toxicity of anti-retroviral drugs, he was using his power as President of the country to create a kind of knowledge (sadly accepted as “true” by many South Africans) that turned out to be very false and very deadly. Just ask Parks Mankahlana who reportedly died of an Aids related illness because he had stopped taking the live-prolonging anti-retroviral drugs that his boss had warned against.

The big problem is that Mbeki does not seem to heed the warning of Albert Einstein which he quotes in his speech. Einstein reportedly said: “Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.” He correctly identifies a problem – namely that the construction of knowledge is not free of ideology and the influences of powerful interests. But he then seems to exempt himself from the rules of the game and sets himself up as the final judge of what is “true” and “false” knowledge, something that is impossible to do in terms of Mbeki’s own previous argument about the construction of knowledge.

When Mbeki pontificates about “objective truths” and “false knowledge” he is not free from ideology and self-interest and in this case the self-interest that runs like a golden thread through this speech is his need to justify his deadly dabbling in Aids dissidence and medical quackery. His tragedy is that – brilliant as he might be – he cannot see the contradiction in his own position.

Posted in: ANC, HIV/AIDS, Thabo Mbeki.

Why a ten year old agreement cannot authorise deployment of soldiers in our cities

Jan 19th, 2012
by Pierre De Vos.
52 comments

The South African National Defence Force, the Presidency and the DA Provincial government in the Western Cape do not seem to be bothered by the increased militarisation of South Africa, nor by the dangers posed by unleashing heavily armed soldiers not trained for that purpose on ordinary citizens. They apparently see nothing wrong with undermining the oversight and accountability functions of Parliament either — as long as they can project an image to voters that they are tough on criminals. Neither do they apparently see anything wrong with the routine deployment of soldiers, armed with semi-automatic guns, in residential areas.

What will happen when those soldiers open fire on citizens and ultimately kill scores of citizens (much like soldiers used to kill scores of citizens in the last ten years of apartheid in townships across South Africa)? Who will be blamed for such a massacre? Will soldiers be charged with murder and sentenced to jail for killing innocent civilians? Because mark my words, if the routine deployment of heavily armed soldiers to combat crime and intimidate protestors or ordinary citizens going about their business is not stopped, a massacre will occur at some point. It always does in a state where the government of the day conflates the role of the police with that of the military and routinely uses the military to assist the police with ordinary safety and security work inside the country.

In terms of section 205(3) of the Constitution the police service (NOT the military) is tasked with preventing, combating and investigating crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Because we are a constitutional democracy and not a military dictatorship, the military should only assist the police service in exceptional circumstances and, as I pointed out earlier this week, only in accordance with strict procedures.

Last week soldiers were involved in a law enforcement exercise in Johannesburg and reportedly assaulted a businessman by slapping him and throwing him to the ground. With a boot on his chest the soldier then allegedly questioned his nationality. (See picture below, taken by  Ihsaan Haffejee.) As a South African of Indian descent, they probably assumed he was an immigrant from Asia. Luckily they did not shoot or kill anyone with their heavy weapons while they were out there supposedly searching for counterfeit goods.

Curious onlookers to this operation in the bustling CBD of Johannesburg reportedly had stun grenades thrown at them when they gathered to see what was happening. Other onlookers got their faces full of pepper-spray. The Star newspaper reported that one man had his camera confiscated by soldiers after he took pictures of one of them beating a man with the butt of his assault rifle. Do we really want to live in a state where heavily armed soldiers get involved in the assault and intimidation of fellow citizens?

Responding to queries about the legality of the involvement of heavily armed soldiers (allegedly aimed at searching for counterfeit goods, but in reality aimed at intimidating ordinary citizens to prevent them from engaging in political protests), General Ndivhuwo Mabaya stated that the police and the SANDF have a cooperation agreement which covers all their joint operations, that this was approved in 2001 “or so”, and that this blanket agreement allows the deployment of soldiers to assist the Police whenever and wherever.

“The President is not a person,” he said, but “an office”, (albeit an office with several wives, a blue light brigade and a mean singing and dancing routine) “so the agreement and authorisation of cooperation of the two institution signed in 2001 or 2002 is still valid”. He conceded that the President needed to sign an order to deploy soldiers, but argued that the 2001 agreement covers all eventualities. Helen Zille must agree with this argument because her government has requested the deployment of soldiers in several hotspots around Cape Town (in places where poor black people live or which they frequent, of course — I have never seen heavily armed soldiers in Bishopscourt or Bantry Bay).

This is dead wrong — and dangerous to boot. Here is why.

It is a well-established principle of South African constitutional interpretation, that the provisions of the Constitution have to be read together, as the various provisions may relate to one another and often “talk” to each other and has meaning only in relation to other provisions in the Constitution. One cannot determine the purpose of a sub-clause of the Constitution if one does not read that sub-clause in conjunction with surrounding sub-clauses and other related clauses. And as any constitutional lawyer will tell you, constitutional interpretation relies heavily on a “purposive” interpretation of the provisions of the Constitution: one must ask what the purpose of a relevant provision of the Constitution is and then interpret it accordingly to give effect to this purpose.

That is why we must ask what the purpose of section 201 of the Constitution is. That is also why sub-sections 2 and 3 of section 201 of the Constitution must be read together. The purpose is clear: the drafters of the Constitution wanted to avoid a situation in which an unaccountable President (the person, not the office) sent soldiers to fight in foreign wars (without having to declare war on that country). Furthermore they wanted to Prevent an unaccountable President from sending soldiers into the suburbs of South Africa to intimidate protestors and to instil fear in the hearts of citizens in a desperate attempt to cling to power.

The apartheid government did both of these things and no one was ever held accountable for it. The drafters of our Constitution knew better and included section 102 to ensure Presidential accountability for the deployment of troops inside and outside South Africa. Thus, section 102 of the Constitution states:

2. Only the President, as head of the national executive, may authorise the employment of the defence force (a) in co-operation with the police service; (b)in defence of the Republic; or (c) in fulfilment of an international obligation.

3. When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed.

4. If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.

The President has a duty to authorise deployment of soldiers and when he does authorise such a grave step, to inform Parliament in detail about any deployment of the soldiers, the reasons for the deployment and how many soldiers are deployed in this manner. Reading these sub-sections in isolation, as if the President can provide a blanket authorisation for the deployment of South African soldiers which would cover every possible eventuality, on the condition that he or she provided details of each deployment to Parliament, would completely negate the purpose, meaning and effect of section 201.

Instead of ensuring that the President is accountable to Parliament for what may be life and death decisions, such a reading would require a President (either as a person or as an office) never to have to take responsibility for such a decision and never having to defend it to the democratically elected members of Parliament.

Why this reading is absurd and wrong can easily be illustrated with an example. Recall that section 201 covers situations like the deployment of soldiers as part of an international peace keeping effort or as part of a military campaign that does not involve a declaration of war by South Africa. In the reading of General Mabaya, the President (who, is not a person after all), may in general terms, authorise the deployment of South African troops abroad to fight in wars in which they might well be killed.

When, several years or even decades after such general authorisation, the USA then wishes to invade Iran and asks South Africa to contribute troops to a coalition of the willing or Uganda wishes to invade the DRC and asks South Africa to contribute troops to a coalition of the righteous, this prior “authorisation” (even if given in general terms ten years ago by another administration) would comply with the requirements of section 201(2).

This would render section 201(2) utterly meaningless and would negate its purpose and effect. Section 102(2) requires authorisation by the President because this will hold the President and his or her administration accountable for what would often be highly charged and politically contentious decisions, decisions that might lead to the loss of life of large numbers of South African soldiers. Because a decision of this kind may be politically highly contentious, a President will have to consider all relevant factors — including the possible opposition of voters to sending South African soldiers to die on foreign soil for a cause they do not believe in — before authorising such a drastic step.

Sending troops to Iran, for example, to assist the United States of America (who might be invading a foreign country in order to placate the far-right wing government of Israel or to secure oil supplies for the USA) would probably be opposed by the vast majority of South Africans and by a majority of ANC voters. But if General Mabaya is to be believed, in a case like this our Constitution would only require that a previous President had agreed (in general terms and more than 10 years ago)  that South African troops could be deployed abroad, for section 201(2) to be complied with.

Moreover, this absurd interpretation would also negate the purpose and effect of section 201(3). Why would a President be required to answer to Parliament for a specific deployment after the deployment had already taken place, if that President was never required actually to authorise the specific deployment at all? And would this mean that a junior Defence Official would be able to decide to send troops to Iran because a President had authorised — in general terms — the deployment of South African troops abroad 10 years previously? This would clearly be absurd, yet General Mabaya wants to convince us dat perdedrolle eintlike vye is (that horse manure droppings are really figs).

Read holistically, section 201 requires the President to take political responsibility for each decision to deploy soldiers inside and outside South Africa and then to account to Parliament for this decision by reporting to it on the reasons for the decision as well as on the number of troops to be deployed. Parliament has (at least on paper) the power to stop such a decision as it can threaten to fire the President if he or she authorises the sending of troops to Iran or the sending of troops into townships where citizens have taken to the streets to protest against corruption and service delivery failures. If Section 102 allowed for a blanket authorisation for this kind of thing into the future, Parliament would have no such power and no role to play in holding the President to account, and the reporting obligations would become utterly meaningless.

Generals or military bureaucrats may then make individual decisions about the deployment of soldiers inside and outside South Africa and this will undermine the principle that soldiers are subject to civilian control and that the President, as Commander in Chief , is accountable to the only truly democratically elected national body, namely the National Assembly, for his or her actions.

No, General Mabaya, you are dead wrong. You are also exposing our soldiers to criminal sanction.

Every time heavily armed soldiers appear on our streets and assault and intimidate ordinary citizens, they are doing so unlawfully. Ordering a soldier to take part in such an operation against fellow citizens is thus, arguably, manifestly unlawful. This means that soldiers may well have a legal duty to disobey orders to take part in policing operations inside South Africa, as section 199(6) of the Constitution states that no member of any security service may obey a manifestly illegal order.

If they do not and they are involved in the killing of a civilian during such an unlawful operation which they had agreed to be part of, an individual soldier might well expose him or herself to prosecution for murder. If I was a member of one of the Defence Force Unions, I would be very worried about such a possibility indeed and I would seek clarity on it. Surely Defence Force Unions have a duty to protect their members from possible criminal prosecution? Why are they not taking this up with the leadership of the Defence Force and, if she would deem to talk to them, with the Minister of Defence?

Posted in: Constitution, democracy, Jacob Zuma, Rule of Law.

Can Mbeki make a comeback?

Jan 17th, 2012
by Pierre De Vos.
104 comments

If some journalists are to be believed, former President Thabo Mbeki is on the comeback trial. Yearning, perhaps, for a President who can do more than sing and dance and fire cabinet ministers (someone who can construct a coherent and seemingly plausible argument; who can engage in a provocative — if pseudo-intellectual and misguided — manner with the issue of the ”democratisation of knowledge“; who can launch scathing attacks against those who have been a bit too uppity or have insisted on confronting him with unpleasant facts; who can produce memorable phrases like “the “fishers of corrupt men” to signal his disdain of the views of others) many South Africans suddenly seem to be missing our former President.

If I have time in the next few days, I will critique former President Mbeki’s latest attempt at justifying his flirtation with Aids denialism and his unique interpretation of Muammar Gadaffi’s “peaceful” nature.  Recall for the time being that Gadaffi had warned Libyans rising up against his rule (people he called “rats and cats”, who were “drugged cockroaches”),  to hand over  weapons or “we will announce the holy march, I will call on millions from one desert to another to cleanse Libya house by house…”

But today I wish to raise an interesting point of constitutional law. Although it is never going to happen, I have been asked what would the legal position be if Thabo Mbeki is re-elected as ANC President at the end of the year. Would he be able to return as President of the country, given the fact that he never served a full second term as President?

Section 88(2) of the Constitution states that no person may hold office as President for more than two terms. The section does not say that a President cannot serve more than two consecutive terms, which means the Putin option is not available to a South African President who has served two full terms. A President can therefore not serve two terms, then do something else for five years, only to return to serve as the President for another 10 years after that.

But here is where things get murky. The ban on serving more than two terms as President is qualified by a sub-clause contained in section 88(2), which states that when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term. Where a President is therefore elected as President after a general election, but then resigns or is fired by the National Assembly and is replaced by another President, the new President will serve the rest of the five year term without that part of the term counting as one of his two terms in terms of section 88(2).

This means that although Kgalema Motlanthe served as President after the removal of Mbeki, he did so to fill a vacancy in the office of the President and he would thus still be able to serve two full terms as President — were he ever to be elected as President of the ANC.

Although Mbeki did not serve a full second term, the wording of section 88(2) seems to be rather specific and does not allow a President who was elected after a general election and was then removed as President during his second term or resigned as President during his second term, to serve another (in effect, third) term later on.

There is a good reason for this. A President is not directly elected, but is rather elected by the members of the National Assembly. In terms of section 102(2) of the Constitution, the majority of members of the National Assembly can also fire a President and his or her cabinet for any reason they wish. For example, they can fire an aloof President who had lost the election for the ANC leadership — as they would have done with Mbeki if he had not resigned after being “recalled” by the ANC.

The majority party in the National Assembly can therefore dictate who must serve as President and had section 88(2) been phrased differently, the leader of that party would have been able to manipulate the support of his party MP’s to hold on to the Presidency indefinitely by a bit of crookery. If section 88(2) had provided that a President who had resigned before the end of his or her term would be assumed not to have served a term as President for the purposes of section 88, it would have opened the door for a President to serve for as long as his party wished him to serve as President.

All that a serving President would have had to do to achieve this, would have been to resign one month before the end of his or her second term — only to be re-elected for another “second” term after the next election. This is why section 88(2) disregards the part of a Presidential term served by a President taking over from an elected President during the five year life of a Parliament, but does not allow a President elected right after an election to discount his or her term served if he or she resigned or was fired before the expiry of a second term. However, the system can still be tricked, as a President who wished to serve more than two terms and who planned ahead could have another person elected as Presdident after the general election, only to replace that President after a month or two. This would, however, require blind support from his or her party and some foresight.

All this means that Mbeki can never serve as President of the country again — unless the Constitution is amended. This seems very unlikely, not only because the ANC would probably not agree to it, but also because the party does not have a two-thirds majority in Parliament (unlike in the days of Mbeki) and would probably not be able to persuade smaller parties to support such an amendment.

This does not mean, of course, that theoretically speaking, Mbeki could not be re-elected as President of the ANC. The ANC Constitution does not prohibit this. Neither does the Constitution require the President of the country also to be the leader of the majority party in Parliament (a situation that seems to differ from that of the Leader of the Opposition).

Of course, where the President of the majority party does not serve as President of the country (even when he or she is entitled to do so), the authority of the President and his or her executive may well be fatally compromised and the constitutional system may well take severe strain. In such a situation, the danger is that very little real power will be exercised within the formal constitutional structures like the Presidency and the executive. As we all know after the firing of Mbeki, it is the President of the majority party and the other leaders of the majority party who decide who serves as President, then instructs the members of the National Assembly to elect or fire whomever is necessary to give effect to this decision.

This situation will aggravate a problem that is inherent in our constitutional design. Although the President is supposedly accountable to Parliament and is elected and can be fired by the Assembly, in reality the President is accountable only to his or her political party and it’s leadership, who can decide who serves in Parliament and can also fire the members of their party as members of Parliament if they refuse to follow instructions from the party leadership. Where a President is not the leader of his or her party, the party will almost certainly try to remote-control the President and this might well lead to a further conflation of the ruling party, constitutional institutions like the Presidency, and the state.

This is also why I am no great fan of the current DA arrangement where its leader serves as the Premier of a province and a member of the Assembly is elected by the party to serve as Leader of the Opposition. Section 57(2)(d) of the Constitution states that the rules of the National Assembly must provide for “the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition”.

Helen Zille is the “leader of the largest opposition party in the Assembly”, yet Lindiwe Mazibuko serves as Leader of the Opposition. There are two problems with this. First, it is unclear to what extent Zille controls the Leader of the Opposition (and to what extent she did so with the two previous DA “leaders” who had served as Leader of the Opposition in Parliament). Second, it is far from clear that somebody who is not the leader of the largest opposition party in parliament can serve as Leader of the Opposition at all.

Section 57(2)(d) of the Constitution can be read as prohibiting anyone other than the actual leader of the largest political party in the Assembly serving in the role Mazibuko is serving in. Mazibuko might therefore very well not officially and lawfully be Leader of the Opposition at all as that title and role might well be reserved by the Constitution for the actual leader of the DA – Helen Zille.

In any event, these issues once again remind us that our Constitution has failed to regulate the relationship between political parties and their elected representatives in the legislature and the executives (at both national and provincial levels). This means that the power of the President or of Premiers vis-a-vis that of the leadership of the political parties they lead, will differ widely, depending on how tight a grip the President or a Premier has on his party. Where the President has no grip whatsoever — as seems the case with Jacob Zuma – the party leadership (in the case of the ANC that would often be Gwede Mantashe) will often act as the power behind the throne, but without having to worry about any of the checks and balances built into the constitutional system.

Posted in: ANC, DA, Kgalema Motlanthe, Thabo Mbeki.

Why are soldiers patrolling the streets of Cape Town?

Jan 16th, 2012
by Pierre De Vos.
72 comments

Are we at war with our own citizens? Why else are soldiers patrolling the streets of Cape Town? I was rather startled when I opened my newspaper this morning and spotted a picture of soldiers with automatic weapons and wearing what looked like full combat gear, parading outside the Khayelitsha District Hospital. For a moment I thought I was back in 1988 and “Boetie” had gone back into the township. The newspaper informs me that soldiers were called in to help control a crowd of protestors outside the hospital. The contingent of soldiers told the Cape Times that they had been diverted to the hospital after being on a routine patrol in the area with the SA Police Services.

But why were soldiers patrolling the streets of Cape Town with members of the Police Service (remember, the Constitution talks about a Police Service, not a Police Force)? Can this be legal? And why were they then diverted from their patrol to get involved in a protest by ordinary citizens? Surely we should be very careful before we use heavily armed soldiers to intervene in political and economic protests by citizens? We do not, as far as I can recall, live in a military dictatorship.

And that is why our Constitution is rather clear on this issue and why it contains provisions that safeguard ordinary citizens from the use of the military against protestors. To avoid the militarisation of our society and to prevent a recurrence of the situation which prevailed in South Africa in the last 15 years of apartheid, when the military played an ever increasing role in suppressing political dissent against the apartheid government, the Constitution sets out strict requirements for the employment of the Defence Force – inside and outside South Africa.

Section 200(2) of the Constitution confirms that the Defence Force should not normally be employed inside South Africa, stating that:

The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.

Section 201(2) of the Constitution provides for an exception to this rule, stating that the President, as head of the national executive, may authorise the employment of the defence force in co-operation with the Police Service or in defence of the Republic.

Section 201(3) then states that when the defence force is employed with the Police Service, the President must inform Parliament, promptly and in appropriate detail, of the reasons for the employment of the defence force; any place where the force is being employed; the number of people involved; and the period for which the force is expected to be employed. If Parliament does not sit during the first seven days after the defence force is employed as envisaged, the President must provide the information to the appropriate oversight committee.

In the context of section 200 and 201 it is clear that the Constitution does not allow the employment of the Defence Force inside South Africa in circumstances other than in co-operation with the Police Service. There are good reasons for this.

In a constitutional democracy it is of utmost importance that the role of the Police Service and the role of the Defence Force be kept separate. The Defence Force should normally not be employed inside the country – especially not to control crowds protesting against a lack of employment opportunities or against service delivery failures. It is normally the role of the Police Service to deal with crime and other internal challenges to law and order. A failure to uphold this distinction between the Police and the Military is dangerous as it will run the risk of further politicising the Defence Force and will create an incentive for politicians to deploy the Defence Force, with its arsenal of dangerous weapons, against ordinary citizens.

Did the President inform Parliament that he was employing the Defence Force to patrol townships in Cape Town? If he did, what reasons were given? If not, why is he in breach of the Constitution?

Strangely section 18 of the Defence Act, which I only read for the first time this morning, states, states that “in addition” to the employment of the Defence Force by the President as authorised by section 201(2), the President or the Minister may authorise the employment of the Defence Force for service inside the Republic or in international waters, in order to: (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socio-economic upliftment; and (d) effect national border control.

As I read section 200 and 201 of the Constitution, it does not allow the President to deploy the Defence Force inside South Africa against citizens unless it is done in co-operation with the Police Service. Section 18 of the Defence Act is therefore most probably unconstitutional in as much as it purports to give the President wider powers to employ the Defence Force in South Africa than those provided for in section 201(2) of the Constitution.

As I read it, the Constitution only empowers the President to employ the Defence Force “in co-operation” with the Police Service – never on its own. In as much as the Defence Act states otherwise and allows the employment of the Defence Force on its own, the provisions in section 18 are surely unconstitutional. As section 19 of the Defence Act deals with the employment of the Defence Force in co-operation with the Police Service (as authorised by the Constitution), it seems to me the whole of section 18 of that Act must be unconstitutional as it bestows powers on the President and the Minister of Defence not not bestowed on them by the Constitution.

Section 19(1) of the Defence Act, quite correctly, states that the Defence Force may be employed in co-operation with the South African Police Service in terms of section 201(2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law and order within the Republic.

Section 19(2) requires the Minister of Defence to give notice of such employment by notice in the Government Gazette within 24 hours of the commencement of such employment and, upon such employment being discontinued, within 24 hours of such discontinuation give notice of the discontinuation by notice in the Gazette. This provision also contravenes section 201(3) of the Constitution, which requires the President (not the Minister) to inform Parliament of the employment as well as the reasons for and details about the employment.

Section 19(3) then sets out strict procedures and criteria that must be met for such a deployment.

Service in co-operation with the South African Police Service: (a) may only be performed in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security; (b) must be discontinued in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security or when the President deems it expedient for any other reason; and (c) must be performed in accordance with:

(i) a code of conduct and operational procedures approved by the Minister;

(ii) such guidelines regarding:

(aa) co-operation between the Defence Force and the South African Police Service; and

(bb) co-ordination of command over and control of members of the Defence Force and the South African Police Service, as the Chief of the Defence Force and the National Commissioner of the South African Police Service may determine.

When soldiers were diverted to the Kayelitsha District Hospital, it could only have been done if ordered by the President – as head of the executive. If the President had not ordered such an employment of soldiers, the employment would be unlawful. Moreover, in terms of section 19, such an employment would require the Minister of Defence to give notice of this employment in the Government Gazette within 24 hours. Section 201 also requires the President to inform Parliament of such an employment immediately. If the Minister of Defence had failed to give notice of this employment and if the President ahd not informed Parliament, they would be in breach of the Constitution and the Defence Act.

These possible breaches of the Constitution and the Defence Act might appear trivial, but flouting the Constitution and the law in this way is deeply damaging to our democracy and to the credibility of the government of the day. First, a government can only command respect from ordinary citizens if its members is generally seen to respect the Constitution and the law and if they do not flout respect for the Rule of Law. Second, a democratic government should not use the Defence Force (with its frightening ability to maim and kill unarmed citizens) against its own people except in the most extreme cases – to assist the Police in the aftermath of a catastrophic natural disaster or in the face of an armed insurrection that threatens the democratic order itself.

It might be that the President and the Minister of Defence have both acted properly and in accordance with the Constitution and the law. An insurrection threatening the constitutional democracy might be underway in Cape Town townships and we might be blissfully unaware of this. What we do not know is whether the President and the Minister have complied with the Constitution and the Defence Act (parts of which are clearly unconstitutional), because we have not heard anything about what steps they had taken to provide legal cover for this employment of the Defence Force and why this employment was needed at all. In the absence of reassurances, all right minded citizens would be excused for becoming anxious about our government’s commitment to the Rule of Law and about its commitment to a democratic state free from interference by a politicised military.

A failure to explain and justify this draconian and scary move to employ heavily armed soldiers against ordinary citizens, must alarm any citizen who loves his or her freedom.

Posted in: ANC, democracy, Governance, Jacob Zuma.

Should we always trust officials who remove children from their parents?

Jan 12th, 2012
by Pierre De Vos.
48 comments

We live in a world in which elites of every stripe (including many journalists, social workers, police officers, politicians and judges) often assume that poor people are dishonest, irresponsible and lacking in the basic ability to care for others – including their children. There is a deeply ingrained assumption amongst many (but, of course, not all) members of the chattering classes that poor people are to blame for their poverty and that they are prone to be less responsible and less worthy of concern and respect than middle class or rich people.

Meaning well, some often endorse interventions by the state that are aimed at “protecting” poor people from themselves (regardless of what their real needs and wishes might be) and protecting the children of poor people from assumed neglect by their parents. Acting on the questionable assumption that state officials will be better placed than parents to determine what is in the best interest of children, they endorse potentially drastic interventions by state officials to “save” or “protect” children from their poverty stricken parents.

In Australia this kind of paternalistic authoritarianism gave rise to the scandal of the Stolen Generations. Between approximately 1869 and 1969 children of Australian Aboriginal and Torres Strait Islander descent were removed from their families by the Australian Federal and State government agencies and church missions, under acts of their respective parliaments, ostensibly to protect the children and enhance their life chances.

In the South African context, how destructive this can be of the basic dignity of the poor is well illustrated by the facts that gave rise to the various judgments handed down by the Constitutional Court yesterday in the case of C and Others v Department of Health and Social Development, Gauteng and Others.

On Friday 13 August 2010, Mr C was repairing shoes on a street corner – as he does every day – but unlike other days he had his daughter with him because his partner (who normally looked after the child) had been hospitalised to give birth to another child. Ms M, a blind person, was accompanied by her two daughters while begging.

On that day designated social workers removed the children from both Mr C and Ms M and placed them in the Department’s care facilities, without notifying the parents of where they were. The social workers (along with other Tshwane officials) were taking part in a well-planned operation involving the removal of children from people found to be begging while accompanied by children. No court order had been sought for the removal of these children.

Section 152(1) of the Children’s Act empowers a social worker or police official to remove a child and place the child in temporary safe care, without a court order, if it is reasonably believed that: (a) the child is in need of care and protection and needs immediate emergency protection; (b) the delay in obtaining a court order may jeopardise the child’s safety and well-being; and (c) removal is the best way to secure the child’s safety and well-being.

In terms of the Act, a social worker is required to compile a report on whether the child is in need of care and protection in terms of section 152 within 90 days, after which the child must be brought before the children’s court for a determination of whether she or he is indeed in need of care and protection. There is no provision for automatic court review before compilation of the report and if parents are unable to appear in court or get help from an NGO to assist them, chances are that their children would permanently be deprived of the care and love of their parents.

In two separate decisions Skweyiya J (Froneman J concurring) and Yacoob J (Moseneke DCJ, Khampepe J, Nkabinde J and Van der Westhuizen J concurring) both agreed, for slightly different reasons, that the provisions of the Children’s Act that authorised this removal of children from their parents without court supervision were in breach of section 28 and section 34 of the Constitution and that this was not justifiable in terms of the limitations clause.

Although a social worker or police official is empowered by the Act to remove a child from his or her parents only if, in their reasonable belief, immediate emergency protection is so necessary that the delay in obtaining a court order may jeopardise the child’s safety and well-being, and then only if the removal of the child is the best way to secure that child’s safety and well-being, the danger is that a social worker or police officer will exercise this discretion on the basis of prejudicial assumptions about poor people and their ability and willingness to look after their children.

As Justice Yacoob emphasised, the purpose of the impugned provisions is to protect, secure and prevent the violation of the constitutional rights of children. One may well ask (if one takes an overtly formalistic view of constitutional interpretation or if one harbours the deeply paternalistic view that state officials will often be better placed that poor citizens to decide what is in the best interest of their children): how can the legislative provisions here in issue that are palpably designed to protect the constitutional rights of children be inconsistent with section 28 of the Constitution?

The answer is simple: there exists always the possibility that a removal would be wrongly made (because of overzealousness on the part of social workers or police officers or because of the prejudices against the poor harboured by many social workers and police officers. As Yacoob  therefore stated:

It is in the interests of children that an incorrect decision by a court made without hearing the child or the parents, or by a designated social worker or police official be susceptible to automatic review by a court, in the ordinary course, in the presence of the child and the parents. It follows from this that sections 151 and 152 [of the Act] do not provide for this and are therefore constitutionally wanting. Sections 151 and 152 of the Act, though their positive provisions are aimed at the best interests of children, fall short of achieving this result. They carry the potential of being counter-productive because they fail to provide for a Children’s Court automatic review in the presence of the child and the parents. In this sense, and to this extent, the laws are not in the best interests of children. They therefore limit the rights contained in section 28(2).

Having found the provisions unconstitutional, the question remained how to correct this problem. If the sections were merely declared invalid, social workers and police officers would have no power to protect children and remove them from parents (even when this was clearly required) until such time as Parliament had remedied the defect. If the order of invalidity was merely suspended and Parliament provided with one or two years to fix the problem, there would be no guarantee that the sections would not be abused.

The majority therefore endorsed a radical remedy of reading a whole new section into the Act, requiring that a social worker place the removal of children before a Children’s Court for review within 48 hours after the removal and must ensure that the child concerned and the parents, guardian or care-giver as the case may be are, unless this is impracticable, present in court for this review.

Both Skweyiya and Yacoob were at pains to say that this reading in of words into the statute by the court should not be seen as an infringement of the separation of powers doctrine because the court is now writing legislation on behalf of the legislature. As Skweyiya eloquently stated:

By making a final order of this kind, however, I do not suggest that the Court has crowded-out Parliament’s role in further investigating how best to serve the interests of children, for whom a removal from the home is necessary, and in enacting appropriate legislation. Indeed, a final order of reading-in does not give the judiciary the ultimate word on pronouncing on the law. Instead it initiates a conversation between the Legislature and the courts, for Parliament’s legislative power to amend the remedy continues to subsist beyond the granting of the relief, and may be exercised within constitutionally permissible limits at any future time. I would therefore encourage the Legislature to exercise its entitlement to alter the remedy, should it see fit to do so, in view of its specialist expertise and, of course, subject to its constitutional mandate.

For Constitutional Court watchers the minority decision in this case might be of much interest. Although the minority decision was authored by Justice Chris Jafta, it was also supported by Chief Justice Mogoeng Mogoeng. To my mind there are two serious problems with the reasoning of the minority. First, the reasoning is extremely formalistic. There is no purposive interpretation of the provisions of the Bill of Rights at all and the impact or effect of the impugned provisions on the best interest of children is never considered. Second, the assumption underlying the minority judgment seems to be that social workers and police officers will always act in the best interest of the child and that their own prejudices and assumptions about poor people will never cloud their judgment.

Thus Jafta focuses on the text of section 28 of the Constitution and notes that it does not include a requirement that any decision to remove children from their parents should automatically be reviewed. Consequently, he argues, it cannot be used as a constitutional standard for determining the validity of legislation.

In the context of section 28(1)(b) read with section 28(1)(d) and section 28(2), the scope of the right to parental care cannot include parental care that is harmful or detrimental to the safety and well-being of a child. It cannot be claimed that section 28(1)(b) entitles a child to parental care that is harmful to its safety and well-being. It follows that the right to parental care envisaged in section 28(1)(b) is limited to parental care that is beneficial to a child. In other words, this section does not protect harmful parental care. Consequently, legislation which authorises a removal of a child from harmful parental care cannot limit the right in section 28(1)(b).

Completely failing to ask how these provisions would be applied and what impact this might have on the rights of the child to parental care, the minority merely focuses on the wording of section 28 – as if the provisions of the Bill of Rights have not been written in broad and general terms and are not in need of interpretation and amplification by the Constitutional Court – and concludes that these provisions do not prohibit Parliament from empowering officials to remove children from their parents, as long as those officials believe that this is warranted.

The possibilities that state officials will be influenced by anti-poor attitudes and will not always know better than the poor parents (who will be “legally” robbed of their children) what is in the best interest of their children, are never considered. This paternalistic attitude is surprising, to say the least and, to my mind, displays the kind of attitude that is difficult to square with a progressive, pro-poor and pro-transformation vision of the Constitution.

Posted in: Constitutional Court, Dignity.

When silence should not be an option

Jan 10th, 2012
by Pierre De Vos.
34 comments

It is safe to say that the late Professor Barend van Niekerk, the campaigning legal academic and a prominent human rights and anti-apartheid activist (who died in Bolivia in 1981) was not much admired or liked by National Party leaders like HF Verwoerd or BJ Vorster (or, one assumes, by their slavish supporters). He was twice prosecuted (and once convicted) for contempt of court and was also privately sued by a former Minister - all because of his fearless criticism of the apartheid judiciary and the justice system.

In the case of S v Van Niekerk (1970 (3) SA 655 (T)) he was unsuccessfully prosecuted before the High Court in Johannesburg for publishing an article entitled “Hanged by the neck until you are dead” in the South African Law Journal the previous year. Prof Van Niekerk had obtained the opinions of several practising lawyers about the imposition of the death penalty by South African courts and concluded from the data collected that:

Whatever conclusion one may draw from the results of these two questions the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is “conscious and deliberate”.

This narrow escape did not deter Prof Van Niekerk from speaking out and towards the end of 1971 he gave a speech at a protest meeting organised to protest against the Terrorism Act and a specific trial at that time being conducted in Durban in terms of this Act. Most of the witnesses called by the State to testify in this trial had been detained for long periods by the police and any reasonable person (which apparently did not include the majority of South African judges at the time) would have been deeply suspicious that they only agreed to testify because they were tortured.

In his speech at the protest meeting, Prof Van Niekerk criticised the vast majority of South African lawyers for remaining silent in the face of the application of this draconian piece of legislation, arguing that lawyers “should realise that by remaining silent in the face of what they know to be inherently unjust, cruel and primitive they are indeed sullying themselves and the reputation of their profession”. (Whether these words have any relevance for South Africa today, I will leave to the conscience of every reader — including those readers who are busy doing fee-paying legal work as I write this.)

He also argued that the very purpose of the detention clause of the Terrorism Act was to procure evidence by way of torture and asked whether in “the face of the grotesqueness of the situation as regards the application of the Terrorism Act” whether the time had not come for judges “to stand up more dynamically in the defence of the hallowed principles of the rule of law…”, which would require them to handle with caution all evidence procured in solitary confinement, thus practically robbing such evidence secured under detention of “all creditworthiness”.

In convicting Prof Van Niekerk, the Durban High Court found his words to have constituted an “invitation to Judges to embark upon a conscious refusal to give credit, in practically all cases, to evidence obtained in the manner referred to, as a means of killing or rendering ineffective those parts of the Terrorism Act which make such things possible, and in doing so to approach their duties in a manner which is incompatible with their duty, C and the oath which they took, to do justice without prejudice”.

The judge based his conviction of Van Niekerk on the ground that although he had not actually intended to bring some influence to bear upon the judge trying the terrorism case then before the court, the above-mentioned “invitation” nevertheless had a tendency to influence that court, and thus to obstruct the course of justice. The conviction was later confirmed by the Appellate Division in a judgment written by then Chief Justice Ogilvie Thompson, who held that the test to be applied for contempt of court was “whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding”.

Those dark days are long past and today no academic or lawyers will be convicted for contempt of court for making the kind of statements that Prof Van Niekerk made back in 1971. The constitutional guarantee of freedom of expression, read with the various provisions safeguarding the independence of the judiciary have made it very difficult to secure a conviction in this kind of contempt of court cases. In the Midi Television judgment handed down a few years ago, the Supreme Court of Appeal also explicitly rejected the dicta of the Appellate Division in the Van Niekerk case, stating that:

What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur. In my view nothing less is required in this country and to the extent that the pre-constitutional decisions of this court in Van Niekerk …. might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies. But merely to ask whether there is indeed a risk of prejudice that meets those criteria does not end B the enquiry. For as I indicated earlier, the limitation must not only be directed towards a permitted end, but must also be no more than is necessary to achieve its permitted purpose.

Robust criticism of court judgments in the media and by legal academics and even politicians are now the order of the day and when a judge makes statements (in his or her judgments or in extra–curial writing) that are sexist, racist, homophobic or that otherwise displays a lack of respect of the founding values of our Constitution, it is to be expected that lawyers, journalists and legal academics will criticise that judge harshly.

A failure to speak up would constitute a betrayal of the lawyer’s ethical duty spoken about by Prof Van Niekerk all those years ago. Every patriotic citizens who believes that it is important to defend the Constitution and the democracy it has brought into existence may well feel compelled from time to time to criticise court judgments and the actions or omissions of certain judges who do not measure up to basic ethical standards we have come to expect from judges.

Of course, not everyone sees the matter in this way. During the Judicial Service Commission (JSC) interview with the current nominee for the position of Chief Justice, Minister Jeff Radebe blasted Justice Mogoeng Mogoeng’s critics (who had raised concerns about  his suitability for appointment because of statements he had made in his judgments and about his intimate involvement in a deeply homophobic church) stated that there had been a “vicious campaign against your person and dignity”. And last week, at the funeral of the late Judge Fikile Bam, the Chief Justice himself complained bitterly because “sitting and retired judges criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs”.

These comments raise anew questions about where one should draw the line and when criticism of court judgments and of judges would overstep the mark. Surely, where criticism of a judge, his or her behaviour inside or outside a court and the reasoning used by a judge in his or her judgments, relate directly to the fitness of that judge for judicial office or to the question of whether the judge respects the constitutional values of freedom, equality and human dignity, it will be difficult to imagine that such criticism would constitute contempt of court.

This rule may not apply to sitting or retired judges who should normally not comment on the judgments of other judges or on cases that might still come before a court. But when the Rule of Law is threatened or the independence of the judiciary or the constitutional system itself is under attack, then judges — both retired and sitting — might well have an ethical duty to speak out and not to remain silent like so many lawyers did in decades of apartheid rule. When to speak out will always be a difficult ethical issue and different judges will draw the line differently, but surely not speaking out may sometimes be far more unethical than speaking out (and then offending one’s former or current colleagues on the bench)?

The criticism of members of the judiciary might well be experienced as “vicious” by those judges who are not used to being criticised or who are particularly insecure and thin-skinned. Some criticism might well overstep the mark, especially where the criticism is extremely personal in nature and where it has no bearing on what the judge had actually done or said.

If I were to write that judge X was a drunk or that judge Y was a womaniser (without having credible evidence to back this up and without this being pertinent at all to the ability of that judge to act in an independent and impartial manner and according to the highest ethical standards) I would suspect that my criticism would go beyond what is acceptable in a constitutional democracy. But if I analysed the judgement written by judge X and concluded from this analysis that judge X is a sexist or a homophobe, I should be at liberty to say so – as long as I provide cogent reasons for my argument.

Not saying anything and keeping silent in the face of egregious ethical breaches by a judges or in the face of displays of extreme prejudice in the form of racism, sexism, homophobia or xenophobia by a judge, would often be cowardly, not professional and ethically correct. Whether a judge criticised in this manner experience the criticism as vicious or not will, from an ethical perspective, be neither here nor there.

It must be acknowledged that judges are often in a difficult position as they are not supposed to answer their critics and should really only speak through their judgments. They might feel that some criticism by other judges, lawyers or legal academics or by the media is unfair or off the mark and might bristle at know-it-all lawyers and academics who argue that they have gotten the law wrong or that they have written a judgment that demonstrates a decided lack of respect for women, black people or gay men and lesbians.

But in a constitutional democracy — unlike in Barend Van Niekerk’s apartheid South Africa — they would normally not be able to invoke the criminal law to have the critic charged with contempt of court. And a good thing this is too, because in the absence of robust criticism of judges, the constitutional dialogue between judges, lawyers, academics and the executive would end and judges would not feel that they are in any way accountable for their judgments.

And if judges — retired or currently serving — never speak up about perceived moves to undermine the Rule of Law and the constitutional democracy itself, one may well warn them (just as Barend Van Niekerk warned lawyers back in 1970) that through their silence they might indeed be “sullying themselves and the reputation of their profession”.

PS: I am in no way implying that the draconian and oppressive system under which Prof Van Niekerk laboured can be compared with our constitutional democracy  and the legal system we work under now. What I am arguing is that silence is not always the right option and that truly wise and brave judges, lawyers and academics will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

Posted in: Criticism of Courts, defamation, Mogoeng Mogoeng.

The ANC’s centenary celebrations and internal party democracy

Jan 9th, 2012
by Pierre De Vos.
73 comments

The African National Congress (ANC) celebrated its 100th birthday this weekend with such revolutionary pursuits as a golf day and a prayer service. At the end of a huge mass rally on Sunday Deputy President Kgalema Motlanthe proposed a toast and told the (by then half-empty) stadium that if they did not have champagne, they could take photographs of their leaders drinking, or raise clenched fists. “The leaders will now enjoy the champagne, and of course they do so on your behalf through their lips,” he said.

The ANC has a lot to celebrate and feel proud about (especially about its past), but the quality of its current leaders drinking champagne on that stage (and, directly related to this) the manner in which such leaders are elected, are not part of that which the organanisation can feel proud of. No wonder President Jacob Zuma announced that “the ANC will renew its internal systems and processes in order to prepare and produce new generations of leadership for our country, whose integrity and passion to serve our country is unquestionable”.

The same noises about changes to the internal election procedures of the ANC were made four years ago and nothing came of it, but there is surely an urgent need to address the manner in which party leaders are elected in the ANC – and given recent problems with internal party elections in the Democratic Alliance (DA), also in that political party - to make these processes more democratic and to try and insulate the processes from corruption and the influence of money.

This is important not only for the health of the ANC (and other political parties like the DA) but also for our democracy as a whole. Given the fact that our pure proportional representation electoral system does not allow us to directly elect any public representatives at the national or provincial levels (we can only vote for a party, never for a person), the Mandarins at Shell House might want to consider amendments to the process of electing leaders that would make such elections more transparent and bring them more in line with the democratic values of openness, accountability and transparency set out in the founding provisions of our Constitution.

However, neither the ANC nor the DA had shown an appetite before for developing binding legal rules to force political parties to adhere to minimum standards of internal democracy.  A few years ago when I suggested at an Idasa event that our Parliament should adopt a political party law that regulates the funding of political parties as well as prescribes minimum requirements for internal party democracy for the election of leaders and of representatives to our various legislatures, the then DA Chief Whip, Douglas Gibson, was not amused and accused me of wanting to impose a North Korean style system on South Africa.

Instead of starting to cry like a North Korean, I wrote the following email to Mr Gibson the next day which remains pertinent for this debate:

Last night at the Idasa event on the working of Parliament I asked whether political parties in South Africa would be prepared to consider the adoption of a party law that would, inter alia, regulate the way in which candidates are selected to stand for public office. You replied that this was unacceptable and never happens in any democracy – “only in countries like North Korea”. I thought it might be interesting for you to know that many countries do have party laws, including Germany, Argentina, Mexico, South Korea and as far as I can tell at least 40 others.

In Germany Article 17 of the Party law of 1967 (last amended in 1994) states that: “The nomination of candidates for election to all levels of government must be by secret ballot. The nomination procedure shall be as prescribed by the electoral laws and party statutes.”

Article 21 of the electoral law further regulates the matter as follows:

“(1) A person may only be named as a candidate of a party in a constituency nomination if he or she has been elected for this purpose at a members’ assembly convened to elect a constituency candidate or at a special or general delegates’ assembly. A members’ assembly convened to elect a constituency candidate shall be an assembly of members of the party who at the time of their meeting are eligible to vote in the German Bundestag election in their constituency. A special delegates’ assembly shall be an assembly of the delegates elected by such an assembly of members from their own ranks. A general delegates’ assembly shall be a general assembly appointed in accordance with the statutes of the party (Article 6 of the Law on Political Parties) by such an assembly of members from their own ranks in view of forthcoming elections.

… (5) Further details regarding the election of delegates for the delegates’ assembly, the convening and the quorum of the members’ or delegates’ assemblies as well as the procedure for the election of the candidate shall be set forth in the parties’ statutes.

 (6) A copy of the record of the election of the candidate, with details of where and when the assembly took place, the form of the invitation, the number of members present and the result of the ballot shall be submitted with the constituency nomination. In so doing, the chairperson of the assembly and two members present designated by it shall give the District Returning Officer an assurance in lieu of an oath to the effect that the election of the candidate was by secret ballot. The District Returning Officer shall be responsible for accepting such an assurance in lieu of an oath; he shall be considered an authority within the meaning of Article 156 of the Penal Code.

Your assertion regarding North Korea was therefore slightly off the mark.

These provisions illustrate that legislation may well be adopted in a democracy (especially one with some form of proportional representation electoral system) to set minimum standards and criteria for the election of party representatives in the various legislatures, but leaves it open to each political party to arrange their elections in accordance with their own character and traditions within the confines of these minimum standards. There is nothing that prevents such a law also from applying to the election of party leaders.

Such a law will have little effect, however, if it does not regulate the funding of the internal election campaigns of party leaders and if it does not require transparency in the funding of such campaigns and if it does not prohibit influence buying by large corporations or unscrupolous individuals trying to land huge government tenders.

To this day we do not know who financed Jacob Zuma’s campaign to be elected President of the ANC. Was this campaign funded by thousands of small donations by ANC members eager to see the back of Thabo Mbeki, or was it funded by people like the late Muammar Gaddafi of Libya or by Angola’s President Jose Eduardo dos Santos (as some rumours would have it)? Did Roux Shabangu or other tenderpreneurs contribute to this campaign and was Jacob Zuma beholden to these financiers when he eventually became President? Did the Gupta’s have any role in financing President Zuma and his campaigns and if so, what were they hoping to get out of it?

We simply do not know answers to these questions because there are absolutely no legal rules that bind political parties and potential leaders in those parties to reveal the sources of funding used for either internal leadership campaigns or for political party electoral campaigns in general.

If the ANC is serious about renewing its internal systems of leadership elections and if it wishes to become more democratic and to empower ordinary ANC members to have a more decisive say in leadership elections, it will have to address the influence of money on such elections as a priority and will also open up leadership contests and debates to general scrutiny and debate (as has been suggested by Julius Malema). One way of doing so is by passing a law that prescribes minimum criteria for such elections in the manner similar to that applicable in Germany.

Will the ANC bite the bullet and address this elephant in the room? My guess is that too many people with too much money and power have too much to lose from a change in the rules and from a legally enforced transparent system of leadership and public representative elections. But who knows, maybe the ANC will be overcome with a sudden attack of principle and will do the right thing after all. Or maybe a majority of ANC leaders will not act in a principled way but will nevertheless realsie that opening up leadership elections will weaken the incumbent President and his campaign for a second term and will proceed to do the right thing for the wrong reasons?

Posted in: ANC, DA, democracy.

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