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What’s that smell? Must be the name droppings

May 20th, 2013
by Pierre De Vos.
42 comments

Minister Jeff Radebe on Sunday blamed “name-dropping” for the Gupta corruption scandal and said the government wanted name-dropping to be classified as a form of gross misconduct – presumably for members of the civil service. But for Radebe to blame officials for a culture of name-dropping and to rail against such a culture, is a bit like a habitual drunk blaming a culture of wine making and railing against liquor stores to excuse the fact that he killed a child while driving under the influence of liquor.

Several years ago I was involved in an argument with the principal of a high school in Polokwane. The principal had endorsed unfair discrimination against gay and lesbian learners during a school assembly (comparing homosexuality to Satanism) and I was trying to get the principal to repent and to respect the existing law. The principal was evidently an old style beneficiary of Broederbond-style affirmative action gone wrong and was clearly not the sharpest tool in the shed. He refused to acknowledge the existence of the sections of various Acts prohibiting his school from unfairly discriminating against gay and lesbian learners, choosing to repeat his own narrow-minded, racist and homophobic views as justification for his actions.

As it dawned on me that the principal lacked the basic intelligence and academic literacy required to engage in a logical and coherent debate, I am ashamed to admit I finally reverted to name-dropping. Pretending to be good friends with the then-Minister of Education, I threatened to report him to my good friend, the minister, if he did not relent.

But even this intellectually challenged man did not fall for my bluff. He knew as well as I did that I had no influence with the Minister of Education. I could drop her name a million times until her name shattered into a million bright little pieces at my feet – he would be safe in ignoring my increasingly shrill demands and threats. He knew I had no influence or power over the minister and hence that the name-dropping was nothing but an empty gesture to try to get him to do what his reactionary politics prevented him from doing.

Now, of course, the situation would have been different if I was widely known to be a friend and financial benefactor of the minister. The principal would probably have quaked in his boots if it was widely known that I were the minister’s financial benefactor and that I had been bankrolling the minister and her family. He would have jumped and done as I asked if he had thought that the minister would do anything I told her to do because I had bribed the minister. In those circumstances, not even a person as stupid as that principal would have dared to ignore my complaints. He would have been far too scared of losing his job or being transferred to Putsonderwater High School.

But because the principal correctly suspected that I would never pay bribes to a politician, because we both (probably correctly) assumed that the Minister of Education would never have taken bribes from me or anyone else, and because it was therefore highly unlikely that I had the Minister of Education in my pocket to do as I ordered her to do, that principal had no problem in ignoring my pathetic attempt at name-dropping.

The admission by Minister Radebe that “names were dropped”, is therefore telling. Using the passive voice – a classic technique of evasion – Minister Radebe on Sunday said that the Minister of Defence, the Minister of Transport and President Jacob Zuma’s names were dropped (by whom we are not told) to officials to get them to break the law.

Even if we believe Minister Radebe when he claims that no minister, nor the president, gave direct instructions to any of the officials who orchestrated this abuse of state power, the very appeal to “name-dropping” as a justification for exculpating the politicians, suggest that corruption is at the heart of this scandal. For some reason – which might or might not be linked to activities that are prohibited by the Prevention and Combatting of Corrupt Activities Act – all the officials miraculously believed that when the Gupta’s drop the president’s name, they better jump – after asking the Gupta’s how high they were required to jump.

The most telling and shameful aspect of Guptagate is that – even on the version of events dished up to us by the likes of Minister Radebe – the officials all believed that they had to follow the Gupta’s request or face the consequences from the president and the ministers whose names were dropped. On Radebe’s own version, then, senior officials believed that the president and his ministers were corrupt and willing to break the law and endanger South Africa’s security. On this version officials wilfully broke the law and endangered South Africa’s national security because they thought their jobs depended on fulfilling the corrupt and unlawful wishes of the President and his Ministers.

This is an extraordinary admission to make and I am not sure the minister and his colleagues have given sufficient thought to what they are admitting to. They are, in effect, telling us that the culture of corruption and bribery around the president and the government he leads is so deeply entrenched that – without even having to take instructions from the president or one of his ministers and regardless of what the actual situation might be – senior officials would break the law and endanger national security to please the Guptas, because they believed the Guptas had bribed President Zuma and could instruct him what to do.

What is equally astonishing is that Minister Radebe and his colleagues have failed to ask the obvious question that flows from this unintended admission of government entanglement with corruption: why would the officials believe that the name-dropping by the Guptas (or their underlings) of President Zuma’s name was anything but the empty threats made by any other citizen? After all, those officials would have been unimpressed if any of us ordinary citizens, who (unlike the Guptas) had not been paying off the bond on the house of one of the president’s wives and had not co-opted the president’s son as a business partner, had dropped President Zuma’s name in order to get those officials to break the law. I could drop President Zuma’s name a million times, and I would still not get a single official to allow me to land a civilian plane at Waterkloof Air Force base.

When Radebe claims that the scandal shows that name-dropping in the public service had to be classified as a form of gross misconduct, he is either demonstrating a tenuous grip on logic, or he is wilfully trying to mislead the public. Officials do not drop names. People like the Guptas drop names. They drop names because they have paid their dues and know that the officials will feel pressured by the name-dropping. They drop names because they have names in their pockets to drop. People who drop names have those names in their pockets because they are willing to pay for the privilege.

It is not the officials who are at fault. It is the business people who buy the influence of powerful politicians with offers of financial and other assistance (and the powerful politicians who allow this to happen), who are at fault. And there is no need for new legislation to deal with this problem. This kind of buying of influence that makes name-dropping effective is all outlawed by the Prevention and Combatting of Corrupt Activities Act. This is, not so incidentally, the very Act under which President Jacob Zuma was going to be prosecuted before charges against him were mysteriously dropped. (I guess President Zuma must have dropped his own name to get the National Prosecuting Authority conveniently to make those charges go away.)

So, dear reader, when you hear a politician bemoaning the culture of name-dropping, ask that politician whether he or she could take a lie detector test to promise that he or she had never received any financial or other benefit from any one of those rich businessmen and -women who so love to drop the names of our politicians. Then watch as that politician squirms to avoid answering your question.

New improved Secrecy Bill: still bad, still unconstitutional

May 7th, 2013
by Pierre De Vos.
64 comments
Because of immense pressure from civil society, the original draconian version of the Protection of State Information Bill – also known as the Secrecy Bill – tabled in Parliament last year was substantially amended by both houses of Parliament. The version now awaiting President Jacob Zuma’s signatory, while still a thoroughly bad piece of legislation aimed at allowing the covering up of wrongdoing and abuse of power by the intelligence services, is much improved. However, the Bill is unlikely to pass constitutional muster. This is why.

The Secrecy Bill is ostensibly aimed at protecting the “national security” of the country by empowering members of the cabinet, the various security services (including the police and the military) and those bodies overseeing the security services to classify “information” as “confidential”, “secret” or “top secret”. The Minister of State Security is further empowered to grant the power to classify documents to any organ of state or part thereof – although this power cannot be granted to municipalities.

This means that the Minister of State Security has wide powers to authorise other bodies – after approval by Parliament – to classify information. If the Minister (and the majority party in Parliament) wishes to, they could empower any department of state or administration in the national or provincial sphere of government, any other functionary or institution exercising a public power or performing a public function in terms of any legislation and any owner of a facility or installation declared as a National Key Point, to classify information. The head of the Natal Sharks Board, the owner of President Zuma’s private house at Nkandla and the Vice Chancellor of UCT could all be empowered to classify information to protect the “national security” of South Africa.

‘‘Information’’ that can be classified is broadly defined to include not only information contained in documents and electronic recordings but also “verbal announcements”. This means that verbal announcements, say, made to troops sent to the Central African Republic about which private business interests they are tasked to protect could be classified as top secret. Verbal communications between the Guptas and the President or between the Guptas and any Minister or other official would also constitute “information” that could potentially be classified.

Although information can only be classified to protect “national security”, the Bill defines “national security” in a manner that is indeterminate and completely open-ended. The Bill thus states that “national security includes” – but is therefore not limited to – threats against the Republic based on terrorism and sabotage and acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country.

Because the definition is open-ended, it is conceivable that a cabinet minister or the owner of Nkandla could interpret “national security” in a far broader manner than the examples mentioned in the definition of national security contained in the Bill to include almost anything that, in the mind of the classifier, would threaten “national security”. It would matter not whether this is information about how much money was spent on the upgrade of the private house of President Zuma at Nkandla, how often the Guptas meet with President Zuma and how much money President Zuma and his family have received from the Guptas - as long as it could be shown that the information was believed to involve “national security” it would be in line with the provisions of this Bill.

This means that the Secrecy Bill potentially empowers many people at various levels of government (and many organs of state) to censor information in the name of protecting “national security”, thus potentially imposing drastic limits on the right to freedom of expression and the right of access to information. It does so in two interrelated but distinct ways.

First, when information is classified anyone who leaks or holds or publishes the information commits a criminal offence, meaning that whistle blowers in possession of incriminating evidence of maladministration, “dirty tricks” by the securocrats, evidence of corruption or of criminal activities will think twice before leaking such information to the media for fear of being sent to jail for up to 25 years. Second, journalists and editors will be fearful of receiving any such information and of publishing it for fear of being sent to jail for long periods of time. The potential chilling effect of this law is therefore obvious and real. Only the foolhardy and exceedingly brave will leak or publish classified information – even if the information was wrongly classified to cover up criminal activity or maladministration.

In order to pass constitutional muster these potentially unconstitutional restrictions on the freedom of expression and information will only be justified if it can be shown that the law struck the appropriate balance between the need to protect national security, on the one hand, and the need to protect the rights of citizens to the free flow of information, on the other, and if less restrictive means could not have been used to protect national security in an appropriate manner.

Section 8 of the Bill purports to limit the potentially broad scope of the Bill by stating that classification of state information is justifiable only when it is “necessary to protect national security” and by stating that classification may not under any circumstances be used to conceal corruption or any other unlawful act, to avoid criticism, or to prevent embarrassment to a person, organisation, or organ of state or agency. The section also includes other guidelines which – if meticulously and honestly followed by the classifier – would substantially narrow the scope of the Bill.

Section 45 of the Bill criminalises the wrongful classification of information while section  46 further determines that a “head of an organ of state or an official of such organ of state who wilfully or in a grossly negligent manner fails to comply with the provisions” of the Bill could be sentenced to two years’ imprisonment. These safeguards would go some way to deter abuse of the Bill, but only if an independent body existed to investigate and to prosecute those who wrongfully classify documents to hide corruption or avoid embarrassment. Of course, there is no independent body that will dare to investigate these crimes and – unless a miracle occurs and a truly brave and impartial person is appointed as National Director of Public Prosecutions – such cases will never be prosecuted either.

Those who defend the constitutionality of the Bill will rely heavily on section 41 of the Bill to argue that it limits the rights no more than is necessary. This is so because the section provides a defence to those charged and prosecuted for disclosing even wrongly classified or corruptly classified information in a limited number of cases, included where the disclosure of the information is authorised by other legislation and where the classified information reveals criminal activity, including any criminal activity in terms of section 45 of the Bill.

Section 41 indeed provides an important safeguard for potential whistle blowers. Whistle blowers and journalists who are exceedingly brave (or just plain stupid or reckless about their own freedom and well-being) might well be prepared to take their chances in the hope that it could be shown that the leaked or published classified information indeed reveals criminal activity.

However, how this defence would work in practice is unclear. In terms of our Constitution every person is presumed to be innocent by a court of law until proven guilty. It is therefore unclear whether this defence in section 41 would be available to a whistle-blower or a journalist who receives of publishes classified information that reveals criminal activity if those involved in the criminal activity have not actually been convicted of a crime. How will a whistle-blower or a journalist be able to convince a court that the information reveals criminal activity if the criminal activity has not been successfully prosecuted? And how will the criminal activity be successfully prosecuted when the information revealing that criminal activity remains classified? This defence might therefore well turn out to be illusory.

Besides, the defence says nothing about wrongly classified information or information that do not disclose criminality, but does disclose venality, maladministration, abuse of power or just embarrassing information that would harm the political fortunes of those who classified it. Leaking or publishing such information would remain a criminal offence, which means that there would be a huge incentive for classifiers to classify information that reveals maladministration, abuse of power or other wrongdoing that would not rise to the level of actual criminality.

For example, although the use of more than R200 million of public funds to upgrade the private residence of President Zupta at Nkandla was highly embarrassing for the president, no one has been charged with any criminal offence and it is far from clear that a criminal offence was committed when this public funds were allocated to enrich the president. That means if the Secrecy Bill had been in place, all information about the Nkandla upgrade might well have been deemed national security information (protecting a so called “National Key Point”) and journalists who had published articles on the scandal might then have faced a five-year prison term.

The Act also provides for a Review Panel to review classifications of information but the panel is appointed by the majority party in Parliament and is therefore not independent. You can appeal the classification of information, but as it is a criminal offence to be in possession of classified documents it is unclear how you can appeal the classification of documents you are not allowed to know about and that you are not allowed to have in your possession.

In conclusion, given the indeterminate definition of “national security” in the Bill, the potentially broad powers granted to a wide array of people to classify documents, the lack of effective mechanisms to prevent the wrongful classification of information, the Kafkaesque review and appeal mechanisms and the limited and ineffectual defences provided for those who leak or publish classified information that reveals criminal activity or maladministration, I would be more than surprised if the Constitutional Court certifies this Bill as constitutionally valid.

Zuma and the Guptas: the “symbiosis” continues

May 2nd, 2013
by Pierre De Vos.
79 comments

Not even the most gullible South African is going to believe that a plane with 200 guests attending the private wedding of a foreign national would have been allowed to land at an air force base if the father of the bride was not financially entangled with President Jacob Zuma and his family. Out of loyalty or embarrassment some Zuma supporters might pretend to believe that (now suspended) Chief of State Protocol Bruce Koloane is solely responsible for this scandal. The rest of us would be within our rights to demand that an independent criminal investigation be launched to find out whether the Prevention and Combatting of Corrupt Activities Act was breached.

It is not a secret that President Zuma and members of his family are financially entangled with the Guptas. (Previously, President Zuma was financially entangled with Schabir Shaik in what the High Court called a “mutually beneficial symbiosis” — before the relationship broke down when that encrypted fax temporarily landed Shaik in jail — and at death’s door — for corrupting and bribing Zuma.)

Of course, at present there is no proof that the “mutually beneficial symbiosis” between the Zuma family and the Gupta family is directly to blame for the Waterkloof fiasco, as there is no proof that President Zuma himself instructed officials to break the law in order to help his Gupta pals. It might be that the private plane was received at Waterkloof military base, that the guests entered South Africa without any customs inspection, and that the guests were escorted by specialist policemen all the way to Sun City without Zuma’s personal knowledge. The Guptas have always bragged about their connections with the Zumas and this might have led the relevant politicians and the officials that take orders from them to break the rules to accommodate the Gupta wedding party. Sometimes in order to receive preferential treatment all you need is for people to know you have the Big Man in your pocket. A wink and a nod will do the rest.

What are the elements of the “mutually beneficial symbiosis” between the Zuma family and the Gupta family? Rumours have swirled around the nature of the financial entanglement of the Guptas with the Zuma family and the influence this has bought the Guptas. As there is no independent corruption fighting body in South Africa that is independent enough, brave enough and powerful enough to investigate corruption allegations against either President Zuma and his family members or against any of the Guptas, the exact nature of the possible benefits that flow from the Guptas to the Zumas and from the Zumas to the Guptas remain unknown. But there are many proven facts, along with untested allegations and circumstantial evidence, about this relationship that will probably never be aired in court because of the absence of an independent corruption fighting body to look into whether these links have crossed the boundaries of legality.

Late last year the Mail & Guardian reported that there was evidence that the Gupta family was helping first lady number four, Bongi Ngema-Zuma, pay off her R3.8-million home loan. We also know that Duduzane Zuma, President Jacob Zuma’s 29 year old son, jointly control Mabengela Investments with Tony Gupta while JIC Mining Services is also majority-owned by the Guptas and Duduzane Zuma. There are other links: on Thursday President Zuma was supposed to board an air force Oryx helicopter at 14:00 from Swartkop air base to Sun City to attend the Gupta wedding ceremony, but these plans were shelved after the uproar about the abuse of the Waterkloof military base.

We also know that state-owned enterprises have spent more than R100 million in “advertising” in the Gupta-owned New Age newspaper, despite the fact that the newspaper has not been able to provide audited circulation figures. Two years ago the Sunday Times alleged that the Guptas might have had a role in influencing the appointment of CEOs and chairmen in key state-owned enterprises and that this was raised at an ANC National Working Committee (NWC). The Sunday Times claimed that the Guptas telephoned at least three deputy ministers and told them they were to be promoted days before Zuma announced his cabinet reshuffle; phoned several ministers to assure them that their jobs were secure ahead of Zuma’s announcement; bragged about their influence, telling one ANC premier he was “fortunate” they went to his office to see him — as many other public officials had to meet them at the Guptas’ home. Several of these claims have been denied — in general terms — by some of those involved.

Of course, the influence of the Guptas goes beyond Zuma and the ANC. Helen Zille last year admitted to having visited the Guptas’ home, where she received a donation for the DA – although she made the startling claim that she had no idea the cheque came from the Guptas. (She did enthuse about the food, which apparently was delicious.)

But given the proven facts about the shared business interests of the Gupta and Zuma families, the widespread rumours of how this entanglement is allegedly being used by the Guptas to gain some benefits from their association with the Zuma family (they reportedly often boast of their influence over Zuma) and the brazen nature of the current breach of national security, it would be bizarre (but not unexpected) if the police fail — at the very least – to investigate the Guptas for breaching the corruption laws.

Section 3 of the Prevention and Combating of Corrupt Activities Act of 2003 creates an extremely broad definition of corruption. It punishes both the person receiving or offering to receive any “gratification” and the person who gives or offers a “gratification”. The Act punishes people who take or give “gratifications” when the “gratification” is given to corrupt either the person who is offered the “gratification” or with the understanding that the corrupted person would influence others to act in a corrupt way.

This means if someone — a Gupta family member, say — hands money to the president or provides employment for a child of the president or co-opts the president’s child as a business partner, or pays the bond on the house of one of the president’s wives with the intention of creating a “mutually beneficial symbiosis” with the president for corrupt purposes, he or she is committing a crime. It matters not whether the president ever intended to be corrupted. Neither does the Act require the person providing the “gratification” from intending to get the benefit for which the bribe is being offered directly from the person the gratification was provided to.

As the Shaik judgment illustrated, there is no need to link a specific payment or provision of a specific “gratification” with the actual benefit derived from it. The state would therefore not have to show that a specific payment or benefit was made in order to buy special treatment for the Gupta wedding guests. All it would have to show is that there was an intention to buy the favour of the president for the purpose of obtaining favours from him or those directed by him in future. As long as there was an intention to corrupt and as long as a benefit was given with that intention, the person who gave the benefit is guilty of corruption.

The person receiving the benefit can also be convicted of corruption, whether he or she had the intention actually to do a favour for the person offering or giving the bribe or not. As long as he or she knew the benefit was provided for a corrupt purpose, he or she will be guilty of corruption — even if no favours are actually done in return and even if he never intended to do such favours. This much is made clear by section 25 of the Act which states that a person charged with receiving a benefit cannot offer as a defence that he or she did not have the power, right or opportunity to perform or not to perform a specific act benefitting the corruptor or never intended to provide the benefit for which he or she was bribed.

This means that if, say, a president receives a benefit from a friend who had the intention to corrupt him — to buy his influence — and the president knew or reasonably ought to have known this was the corruptor’s intention, the president himself is guilty of corruption when he accepts the “gratification” — even if he had no intention of committing a corrupt act or of influencing somebody else to commit a corrupt act.

Of course it is easier to prove that the receiver of the benefit is corrupt if he or she actually did some favour for the corruptor or influenced another person to do the corruptor a favour. Section 3 sets out what kinds of favours will be considered as corrupt, stating that this will be the case if you have a legal obligation (in terms of statute, contract or the like) to act in one way and you act differently, for example because you act illegally, dishonestly, in an unauthorised, incomplete or biased manner and this amounts to the abuse of a position of authority, a breach of trust, or the violation of a legal duty or a set of rules or that amounts to any other unauthorised or improper inducement to do or not to do anything.

The nature of the “gratification” that must be offered, given or accepted is defined extremely broadly too. It includes giving money, any donation, gift, loan, fee, reward, valuable security, property or interest in property, as well as any office, status, honour, employment, contract of employment. It would also include any payment, release, discharge or liquidation of any loan, obligation or other liability (like paying off another person’s bond) as well as any other service or favour or advantage of any description including any right or privilege. This means if you accept the offer of someone repaying the bond on your wife’s house and you ought to have known that this offer was made for a corrupt purpose, then you are guilty of corruption yourself.

By setting out these principles I am not suggesting that I have access to evidence to prove that any of the Guptas gave the various benefits to members of the Zuma family with the intention to corrupt them. Neither am I suggesting that there is hard proof that various members of the Zuma family received “gratifications” from the Guptas knowing that this was intended to buy the influence of the president or any other family member. What I am saying is that given the bizarre favouritism shown to the Guptas by members of the government (who allowed a plane with their private wedding guests to land at a military base and then provided an official 40-man police convoy to accompany the guests to the wedding), any independent corruption-fighting body would at the very least immediately have started an investigation into the possible links between the “gratifications” provided to various Zumas and the benefits received by the Guptas in return.

But this will not happen because there is no truly independent corruption-fighting unit in South Africa who would decide — based on the prima facie evidence and acting without fear, favour or prejudice — to investigate either the Guptas or the president for potential involvement in a corrupt relationship. In any case, if there were such a body, a decision to launch such an investigation would have meant the end of its existence — just ask the Scorpions. Of course, the fact that both the Zuma family and the Guptas know this might or might not be a mere co-incidence.

Rebranding the DA: Nostalgia for a past that never was

Apr 16th, 2013
by Pierre De Vos.
90 comments
The past – South Africa’s past – remains highly contested. What we are told to remember (and what some tell us we need to forget) form part of a broader political struggle. This is a struggle waged by those who want to conceal their Apartheid guilt and their shame with the legitimising robes of the anti-Apartheid struggle or the soothing balm of amnesia. It is also a struggle waged by others who want to distract attention from the lack of radical structural economic and social transformation in South Africa by invoking a mythical and heroic past where only heroes and villains dwelt. Much is at stake in this fight to construct (and continuously to re-construct) this imaginary past – a past whose existence many achingly yearn for despite knowing that it could never have existed.

This past weekend Democratic Alliance (DA) leader Helen Zille gave a speech, in which she tried to “rebrand” her party, arguing that the DA has a long history of involvement in the anti-Apartheid struggle and is led by an array of anti-Apartheid heroes. She even invoked her work as a journalist when she exposed the murder of Steve Biko by the security police (long before she became a DA leader) to punt her DA struggle credentials.

This came a week after Planning Minister Trevor Manuel landed in hot water for saying that the government could not continue blaming Apartheid for all its failures. President Jacob Zuma then stated at Wednesday’s wreath-laying ceremony in Ekurhuleni commemorating slain SACP leader Chris Hani:

To suggest we cannot blame Apartheid for what is happening in our country now, I think is a mistake to say the least. We don’t need to indicate what it is Apartheid did. The fact that the country is two in one, you go to any city, there is a beautiful part and squatters on the other side, this is not the making of democracy and we can’t stop blaming those who caused it.

I do not propose to engage in what seems to me a vacuous and sterile debate. Only a special kind of thin-skinned, guilt ridden, fool will dispute the fact that we are still struggling to overcome the effects of more than 300 years of colonialism and Apartheid and that South Africa is a more difficult country to govern well because of it. It would similarly require a brazen denial of reality to hold that our democratically elected government should not take some responsibility for specific governance failures of the past 20 years.

Instead, I would like to take a broader view of the way in which many invoke, remember and politically deploy the past to advance their own interests. To this end I would argue that – in South Africa at least – how you engage with the past is profoundly political. But because of the explosive political power of the past and the real and imagined memory of it, there is a tendency to simplify the past to suit individuals’ emotional and political or other selfish needs.

It is unavoidable that most people selectively shine the spotlight on those parts of their own past that reveal them to be either (tragic, misunderstood or strong) heroes or victims. Most people aim that spotlight away from the dark corners where the betrayals, the compromises, the cowardly silences and the active participation in (or collaboration with) the oppression and exploitation of others dangerously lurk.

I suspect that this is why so many white South Africans insist that we should “move on” from the past, that we should stop dwelling on what happened during 300 years of colonialism and that those who mention Apartheid – a crime against humanity – are playing the “tired” race card. This insistence on erasing the past is a sad and often desperate (but ultimately a poignantly futile) attempt to nostalgically reclaim a cleansed and whitewashed past that could never have existed.

After all, how is it possible to be nostalgic about your own past when that past is littered with memories of racial oppression and exploitation from which you, your parents or grandparents benefited – often handsomely?

Better to shut out those memories and reminisce nostalgically about that weekend at the seaside (on a whites only beach); that first kiss (on a whites only park bench); that first visit to the Garlick’s Tearoom with your gloved and smartly hatted mother (travelling on the whites only bus) in order to create an invented life that is worthy of your imagined pure white skin. Even if you are a born free, this often violent rejection of a certain version of our past must signal a tragic yearning for an existence in which your parents never benefited from Apartheid and all had secret “Free Nelson Mandela” posters under their beds.

The fact is that the past is almost always far messier and morally dubious than our yearning for a whitewashed history would suggest. We (or our parents) did ride in those whites only busses. We (or our parents) did buy stamps at the whites only post office counter. We (or our parents) did live in whites only suburbs and did drive on roads constructed by the exploited labour of black South Africans. We (or our parents) did attended schools paid for by the taxes of mining companies which thrived on the Apartheid migrant labour system.

When some white people insist on maintaining selective amnesia about the past (remembering a small number of nostalgic personal events about the “good old days”) they ironically signal that deep down they know that their past – something ordinary people in a relatively normal country would feel nostalgic about – is contaminated by Apartheid and their direct or indirect involvement in it.

This denial of the past and the insistence on “moving on” is therefore both tragic and dangerous.

Tragic, because how can we fashion a meaningful life for ourselves if we have to admit that Apartheid has contaminated our memories and has robbed us of our ability to yearn for a mythical “innocent” childhood (which, if we have to be honest, could not have been innocent if we were white children in Apartheid South Africa).

But also dangerous, because how can we come to terms with the lingering effects of past injustice and how can we begin to rectify it if we cannot bear to admit that we are beneficiaries of that injustice?

Of course, Apartheid South Africa was a messy, dehumanising place and it was not only white people who were contaminated by this past. The system forced many black South Africans to make often difficult and morally complex compromises: some became police officers in the Apartheid police and arrested fellow black South Africans on pass law offences; others worked in the “Bantu Administration” and actually administered pass laws; yet others became petty bureaucrats in Bantustans and implemented the policies of the Apartheid state while drawing a relatively good salary. Others had to take on an obsequious attitude towards white employers in order to hold on to jobs that would pay at least the pittance needed to ensure their family’s economic survival.

I sometimes wonder whether the reason South Africa can feel like such a sick and dysfunctional place is that so few of us have been brave enough or honest enough to face – really face – the moral complexities of our own pasts and those of our fellow South Africans. How can we heal and move on (as the proponents of moral amnesia demand) when we cannot admit – even to ourselves – how broken we are because of the ways we (and our parents and grandparents) survived met ‘n helse lot pyn in hierdie land, ja (“survived with a hell of a lot of pain in this country, yes” – a quote from an Afrikaans song about Hillbrow written by Johannes Kerkorrel)?

This kind of honesty is not politically expedient. It has the potential to humanise us all and to rob the politicians like Helen Zille and Jacob Zuma of the power to invoke an idealised and (for some of us at least) a completely false and non-existent past in order to silence their critics and to cloak themselves in the mantle of (often) imagined heroism.

By saying this I am of course not suggesting that there were not true heroes: Bram Fischer, Chris Hani and thousands of (often vaguely remembered or non-remembered) participants in the struggle among them. Some people really were heroes. Neither am I in any way positing a moral equivalence between black South Africans and white South Africans and the choices they made during Apartheid. That would be obscene.

What I am arguing is that despite these general contours of our (one day to be shared) history – a history of struggle against injustice that we should never forget in order never to become party to the oppression of others – the past is far messier, morally complex, and interesting than some of our politicians would have us believe. When we confront our own messy past and admit to our own failings and the failings of our family members, friends and even some of our heroes, are we not taking the first step towards a state of grace? And when we deny the moral complexity of our past, do we not imprison ourselves in a cage of denial, condemned to continue raging against the Other?

CAR: President Zuma’s attack on the dignity of all citizens

Apr 2nd, 2013
by Pierre De Vos.
65 comments

President Jacob Zuma and the version of the ANC he currently leads are, for obvious reasons, not great fans of the Latin maxim “veritas liberabit vos” — the truth shall set you free. There are many recent examples of this disdain for the truth (and the disdain for ordinary citizens this represents), but nothing illustrates this fact more clearly than the manner in which our government is dealing with the crisis arising from the killing of several of our troops in the Central African Republic (CAR).

When a government believes that its own actions are justifiable and that the vast majority of citizens will support it if they knew all the relevant facts relating to a specific event or action, it will have nothing to fear from telling its citizens the truth. But when a President and the members of the party he leads know that their intensions are dishonourable and that the support of voters could not be guaranteed if those voters were told the truth, that President and the members of the party he leads will invariably try to hide the truth, attack the patriotism of those who ask for more information, call into question their motives and invoke national security in order to avoid having to face up to their own dishonesty and questionable motives and actions.

When a President and the governing party have nothing to fear, they will trust the citizens of that country enough to play open cards with them. An open, transparent and essentially honest government respects the inherent human dignity of ever citizen — whether that citizen is a tenderpreneur, a teacher, a taxi driver, an informal trader or a social grant recipient. For ordinary citizens, it is profoundly empowering when a President and his government display such honesty. This is because through such honesty the President and his government signal their willingness to treat all citizens as individuals with an equal moral worth, capable of making informed decisions about who they are, how they wish to live and what is best for them and their children. It signals a relationship of trust between citizens and those servants temporarily elected to govern citizens.

Conversely when a President and his government are deceitful or when they attempt to hide the truth from citizens, it reveals their disdain for ordinary citizens and for the democratic process. For such a secretive and dishonest government, citizens are not fully human: they have no right to ask questions or to be informed about government actions. Neither do they have a right to take part in debates about the wisdom of individual government policies or actions or to try and influence such actions to prevent the government from making more deadly mistakes in the future.

Citizens are treated as chattels — good for working at minimum wages in the mines, cleaning the streets or earning money for big corporations and the government who taxes these corporations. In such a quasi-democracy, the President and his government will promise not to wage war on their obedient corporate servants as long as pesky citizens do not demand to be treated with the honesty and respect that every human being deserves as of right.

Unfortunately, the cynical speech delivered by President Jacob Zuma at the memorial service for those of our soldiers who died in the CAR, suggests that President Zuma does not respect the human dignity of ordinary South Africans. Neither does he respect the right of citizens to take part in the democratic process. In his speech President Zuma stated that:

The problem in South Africa is that everybody wants to run the country. Government must be given the space to do its work of running the country to implement the policies of the ruling party that was voted into office by millions of our people. There must also be an appreciation that military matters and decisions are not matters that are discussed in public, other than to share broader policy. No country discusses its military strategy in public in the manner in which South Africa is expected to do in this country. Those who are engaging in this game should be careful not to endanger both the national interest and the security of the Republic while pursuing party political goals.

In a democracy in which the human dignity of all are respected, citizens do not only exercise their democratic rights (as individuals imbued with an inherent human dignity) once every five years when they vote for the political party of their choice. In his magisterial Doctors for Life judgment, former Chief Justice Sandile Ngcobo affirmed that democracy requires more than “allowing” citizens to vote every few years. Rather democracy also includes a participatory aspect, as citizens in such a democracy co-run the country with the government temporarily elected to serve all citizens. Quoting from a General Comment of the United Nations Human Rights Committee, Ngcobo stated that:

Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organise themselves. This participation is supported by ensuring freedom of expression, assembly and association.

Firmly placing this right to participate in the affairs of the country and to influence the manner in which we are governed in-between elections within an African and South African context, Ngcobo continued:

The idea of allowing the public to participate in the conduct of public affairs is not a new concept. In this country, the traditional means of public participation is imbizo/lekgotla/bosberaad. This is a participatory consultation process that was, and still is, followed within the African communities. It is used as a forum to discuss issues affecting the community. This traditional method of public participation, a tradition which is widely used by the government, is both a practical and symbolic part of our democratic processes. It is a form of participatory democracy.

In response to demands for more clarity, President Zuma now claims that ordinary citizens have no right to ask whether the government we elected acted correctly when it sent our sons to die in a foreign country for one of the various — often conflicting — reasons provided by different members of our government at different times. Neither, apparently, do we have a right to ask questions about the vague and often contradictory statements made about the reasons of the deployment of South African troops in the CAR.

As far as I am aware, citizens have not asked our government to reveal details of future military actions that could endanger our troops. Revealing such plans would obviously not be appropriate. But that is not the issue here. Ordinary citizens are asking why troops were sent to the CAR and for some honesty about what had really happened when rebel forces in that country killed 13 of our soldiers.

Not only do South African citizens have a right to ask these kinds of questions, they have a patriotic duty to do so. A failure to hold the government accountable and to demand some transparency would dishonour our troops and would make us all complicit in the attempt by President Zuma and his party to turn us into chattels with no inherent human dignity and no agency to decide for ourselves whether our government did the right thing or not.

The urgency of the matter is highlighted by the fact that we now have two directly contradictory statements from the Presidency about the deployment of troops in the CAR. When additional soldiers were sent to the CAR earlier this year, the Presidency stated that:

The employed members of the SANDF will assist with capacity building of the CAR Defence Force and will also assist CAR with the planning and implementation of the disarmament, demobilisation and re integration processes.

But this week at the memorial service President Zuma changed his story, stating that:

When the security situation in the CAR deteriorated in the late 2012, our government made an assessment that resulted in the deployment of 200 additional troops in the CAR as a protection force for the trainers and the military assets that were already in that country. These additional soldiers were not trainers. They were not deployed to train but as a protection force for the trainers.

It is difficult to see how both these claims can be true. The latest statement says nothing about our soldiers assisting with the demobilisation of rebels. It also explicitly states that the soldiers were not sent to assist with capacity building (or training) of the military. This obvious contradiction suggests that our government has not been honest with us about the real reasons for deploying more troops to a country in the middle of a civil war.

We are now told that our troops were sent to protect the trainers training the CAR military. But the SANDF itself admitted that our soldiers might have protected business assets. Who is lying? And how can it be treasonous to ask such questions? Moreover, if this new version is true, why was it so important to continue training the CAR soldiers involved in a civil war in which rebels expressed animosity to our presence there? What happened to South Africa’s previously stated commitment not to get involved in the internal affairs of another African country unless sanctioned by multilateral agreement by the UN or the AU?

Claiming that when citizens raise such questions they are potentially endangering the security of South Africa and of our troops, rob citizens of their dignity and of their democratic rights. It treats us all like minor children in a patriarchal and authoritarian household. But most of us do not live in that R200 million Nkandla homestead, but rather in a vibrant participatory democracy. If President Zuma does not like this, he can always retire to his security bunker at Nkandla.

On the legality of the continued presence of SA soldiers in the CAR

Mar 28th, 2013
by Pierre De Vos.
104 comments

An unconfirmed number of South African troops remain stationed in the Central African Republic (CAR), while some reports claim that South Africa has sent (or is preparing to send) more troops to that country, whose government was last week illegally overthrown by rebel forces. The new rulers are not recognised by either the United Nations or the African Union. Pressing questions arise about the legal basis for the continued presence of our troops in the CAR, both in terms of South African and international law. Here is why.

In the run-up to the invasion of Iraq by the United States and Britain, the invading parties sought a resolution from the United Nations Security Council to sanction its invasion in order to provide it with cover in terms of international law. This resolution was blocked when France – a permanent member of the Security Council – threatened to veto it. South Africa, to its credit, also stood firm in its opposition to such a resolution on the grounds that an invasion would breach the UN Charter, which safeguards the sovereignty of all states. Many international lawyers argued at the time that the invasion was in breach of international law and that George Bush and Tony Blair could be prosecuted at the International Criminal Court for war crimes. Realpolitik prevented this line of argument being pursued seriously by any of the states opposed to the invasion.

Later, serious concerns were also raised about the legality of NATO bombings in Libya during the uprising against the regime of Muammar Gaddafi, ostensibly under the cover of a UN Security Council resolution allowing actions to be taken to protect civilians in that country. Questions about the legality of military involvement in the internal affairs of a sovereign country stems, first and foremost, from article 2.4 of the United Nations Charter, which states that:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

But there are requirements of customary international law that protect even states that are not members of the United Nations. These rules of customary international law impose legal duties on all states not to violate the sovereignty of another State; not to intervene in the affairs of another State; and not to use force against another State – unless formally sanctioned by bilateral agreements or by the UN or African Union.

It is therefore important to establish that South Africa has a legal mandate to station troops in the CAR, whether the mandate is provided by an official resolution of the UN Security Council or the African Union or by a valid bilateral agreement with the CAR. Although our presence in the CAR cannot be equated with the unlawful invasion of Iraq, many of the same international law legal principles are applicable in the present case.

President Jacob Zuma announced in early January this year that a decision had been taken to send more South African troops to the CAR “to render support in fulfilment of an international obligation of the Republic of South Africa towards the CAR”. This international obligation of South Africa apparently arose from a bilateral agreement between the South Africa and the CAR. As far as I can tell, the agreement has not been made public, but we have been told that in terms of the agreement South Africa would provide VIP assistance to the deposed President Francois Bozize and “assist with capacity building of the CAR Defence Force” and “with the planning and implementation of the disarmament, demobilisation and re-integration” of rebels into the army.

In a written reply in Parliament South Africa’s Minister of Defence stated that the bilateral agreement between South Africa and the CAR was in the form of a memorandum of understanding (MOU) “to capacitate the Armed Forces of Central African Republic (FACA) to be able to defend and protect the sovereignty and territory of the Central African Republic. Based on the signed MOU the SANDF deployed a contingent to train FACA on VIP Protection, Sub Units and Junior Leader Group.

Section 231 of the South African Constitution states that “[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces” (NCOP), unless it is “of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession”. It is at best unclear whether the agreement between South Africa and the CAR required assent by the National Assembly and the NCOP. If it did require assent, and if the two houses of Parliament had not approved it, the agreement would never have come into force and South Africa’s deployment of troops would have been illegal from the start as there would not be any legal agreement with the CAR.

However, even if the agreement was only of a technical nature, section 231 requires that it must be tabled in the National Assembly and the NCOP “within a reasonable time”. I have been unable to find any information about whether the required tabling in fact took place. Hopefully the Speaker of Parliament, the Presidency or the Minister of International Relations can allay fears that the requirements of our Constitution might have been ignored in this regard.

Even if all the constitutional requirements for the establishing of a valid bilateral agreement were complied with, it is far from clear that the bilateral agreement concluded between South Africa and the CAR are still in existence. There are two rules of international law regarding treaties that might suggest that no binding agreement exists at present.

First, the rule of rebus sic stantibus establishes the principle that an agreement between states is valid only for as long as the basic facts present at the time the agreement was concluded remains the same. This rule has arguably been slightly altered by article 62 of the Vienna Convention on the Law of Treaties of 1969, which now requires that the treaty would only be invalidated if “the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty and the effect of the change is radically to transform the extent of obligations still to be performed under the treaty”.

Given the fact that the agreement was reached at a time when there was an AU recognised government in place in the CAR and when there was indeed a CAR military to train, and given further that South Africa, as a loyal member of the AU, do not recognise the rebel government in the CAR and that the AU prohibits South Africa from supporting the unlawful rebel government in any way, I would suggest that the essential requirements for the continued validity of the bilateral agreement have fallen away.

However, there is a second reason why the bilateral agreement must surely now be void, namely that when it becomes objectively impossible to fulfil the conditions of the agreement, the agreement between states will terminate. This is confirmed by article 61 of the Vienna Convention that states that the impossibility of performing a treaty is a ground for terminating a treaty if “the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty”.

Thirteen South African soldiers have died at the hands of rebel forces who are now in control of the CAR. President Bozize has fled to Cameroon. The CAR army has disintegrated. It is therefore impossible to train the CAR army or to protect President Bozize as per the original bilateral agreement. In these circumstances it is not possible to argue that South Africa can fulfil its obligations in terms of this bilateral agreement with the CAR.

Given these circumstances, it is far from clear that the continued presence of South African troops in a sovereign country does not violate the UN Charter as well as customary international law.

Imagine, for a moment, that the apartheid government had been overthrown by Umkhonto we Sizwe while troops from the United States of America were stationed in the country in terms of a bilateral agreement in order to protect President FW de Klerk and to train members of the then South African Defence Force. If the US had refused to withdraw its troops (after a bloody battle with Umkhonto soldiers in which 13 US soldiers had been killed), citing the noble mission of protect American business interests and bringing peace and stability to us primitive Africans, most of us would have been outraged at the continued presence of the US army seen as having tried to prop up the apartheid regime. Many lawyers would also have cited the international law principles mentioned above to question the legality of the continued presence of US troops in what would have then been a newly liberated state.

While the rebels who now rule the CAR cannot in any way be equated with Umkhonto and the ANC (the latter having fought against apartheid which the UN had labeled a crime against humanity), the legal issues would be similar. At the very least, the Presidency, the Minister of Defence and the Minister of International Relations should address concerns that South Africa’s continued presence in the CAR is unlawful, and that this exposes our troops to possible prosecution by international bodies. Statements made by AU officials or in a BRICS communique, affirming the need of States to support efforts to stabilise the situation in the CAR do not change the legal position regarding our troops.

As the original purpose of the deployment of troops to the CAR has now fallen away, President Zuma is also constitutionally required to inform Parliament forthwith whether our troops will remain in the CAR and if so what the legal basis of this continued deployment might be. After all, the last thing we want is a kind of mission creep, something which got the USA into a terrible mess in Vietnam in the first war it ever lost. We might then also be told whether private business interests of ANC aligned individuals played a role in the January deployment and in any decision to remain in the CAR despite the fact that the original purpose of the mission has become impossible to pursue.

CAR: where was Parliament?

Mar 26th, 2013
by Pierre De Vos.
82 comments

Many questions remain about the deployment of members of the South African Defence Force in a civil war zone in the Central African Republic (CAR). These include the actual purpose of the deployment, the South African government’s strategic goals for the deployment, as well as what actually happened when at least 13 of our soldiers were tragically killed in combat over the weekend. After all as the Greek writer/poet Aeschylus (525BC — 456BC) is said to have first remarked: “In war, truth is the first casualty.” One question that has not been answered is why our Parliament has apparently not adequately fulfilled its democratic role of overseeing the deployment of our soldiers as required by the Constitution and the Defence Act of 2002?

It is true that in terms of our Constitution, the President is the commander in Chief of the armed forces, as is the practice in most democracies. As I have pointed out before the President has the power to “authorise the employment” of the defence force in co-operation with the police service; in defence of the Republic; or in fulfilment of an international obligation.

When he employs the defence force for one of the reasons allowed for above, 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;
  • the period for which the force is expected to be employed; and
  • expenditure incurred or expected to be incurred.

If Parliament is not in session at the time of the authorisation, the President must provide the information to the Portfolio Committee of Defence that oversees the Defence Force.

For obvious reasons the President does not have to ask permission from Parliament before he employs the Defence Force. In critical situations, the Defence Force may have to be employed before Parliament will be able to sit and to deliberate on the wisdom of the planned employment of our troops. That is why section 18(5) states that no matter what Parliament decides about a decision by the President to employ our troops, the validity of the original authorisation by the President will not be affected.

But this does not mean that Parliament has no role to play in a decision to authorise the employment of our troops, either inside the country or on a foreign mission in fulfilment of an international obligation. On the contrary, once informed about the employment, the provisions of section 18(5) of the Defence Act kicks in, which requires Parliament to consider the wisdom of the President’s decision. This provision establishes the principle of direct democratic oversight by Parliament over decisions by the President to employ our soldiers to situations where they may come in harm’s way.

This sections states that Parliament may, within seven days after receiving the information about an employment of the Defence Force take any of the following decisions “by resolution”:

  • confirm any such authorisation of employment;
  • order the amendment of such authorisation;
  • order the substitution for such authorisation of any other appropriate authorisation; or
  • order the termination of the employment of the Defence Force.

Members of Parliament can only apply their minds as to the wisdom of the President’s decision, if Parliament actually considers the decision by the President and debate it. Without a debate in which the pro’s and con’s of an employment is considered, it will not be able to exercise its powers as set out in section 18(5) of the Defence Act.

This provision is important as it affirms — in line with section 198(d) of the Constitution – that “[n]ational security is subject to the authority of Parliament and the national executive”. It forms part of the system of checks and balances that is inherent in the principle of separation of powers. It avoids a situation in which a President unilaterally involves South African troops in military operations (without having to justify the decision to the democratically elected representatives of the people), thus limiting the powers of the commander in Chief and subjecting it to democratic scrutiny and oversight.

This principle is further entrenched by the provisions of section 203 dealing with a decision of the President to “declare a state of national defence”, which I take to mean a decision to involve South Africa in a war inside or outside the borders of South Africa.

When the President decides to declare a state of national defence, the Constitution provides for a more invasive role for Parliament. Section 203(2) requires the President to inform Parliament of the declaration as well as the reasons for it and if Parliament is not sitting when a state of national defence is declared, the President must summon Parliament to an extraordinary sitting within seven days of the declaration. Section 203(3) further states that a declaration of a state of national defence lapses unless it is approved by Parliament within seven days of the declaration.

All these provisions of the Constitution, read with the relevant provisions of the Defence Act, therefore envisage an active role for Parliament in decisions by the President to employ our troops, both inside the country and abroad.

This raises some questions about the lack of debate and discussion in Parliament regarding various decisions by the President to employ troops elsewhere on our continent. Of course, given the overwhelming electoral majority enjoyed by the President’s party in the National Assembly and given the strict party discipline imposed on members of Parliament in South Africa, it is currently unthinkable that Parliament will use its powers in terms of section 18(5) of the Defence Act to overturn a decision by the President to employ our troops in another country.

But when considering whether to sanction the decision by the President, Parliament will be required to conduct a proper debate. The President (or, at the very least, the Minister of Defence) will be required to report to Parliament on the reasons for the President’s decision. Such a debate will serve to account to voters for what may turn out to be a life or death decision. Once Parliament approves the decision by the President, the deployment will also enjoy democratic legitimacy and will ensure political support for our Defence Force members who might be sent on dangerous missions like the one to CAR.

As far as I am aware, such vigorous debates in Parliament about the wisdom of deploying troops to various parts of our continent have never occurred. It is only now that the mission in CAR has run into serious difficulties that ordinary voters are starting to ask the hard questions, which should have been asked at the time of the employment. This does our troops a disservice as conjecture and accusations about the nature of the mission to CAR swirl around while our troops may very well still be in danger. Better to have these discussions and debates before the danger arise. But for that we need a Parliament that  respects the separation of powers and its own role of checking and overseeing the exercise of power by the executive seriously.

When is the deployment of our soldiers in another country justified?

Mar 25th, 2013
by Pierre De Vos.
62 comments

In a democracy, the deployment of a country’s soldiers in a foreign land should be a moment of high constitutional importance. It should also be a moment of personal moral anguish for the President who serves as Commander in Chief of the military. After all, the President may well be using his immense powers to send fellow men and women to their deaths, hopefully in order to pursue an important constitutionally justifiable objective. As the unfolding fiasco in the Central African Republic (CAR) illustrates, this has not been the case in South Africa. Perhaps it is time to ask why and to demand some answers.

When George W Bush and his lapdog Tony Blair decided to invade Iraq on the basis of bogus intelligence about the existence of “weapons of mass destruction” in Iraq (weapons which never existed), more than a million people marched through the streets of London to oppose the invasion. However, in the US there was almost no protest from the population at large, perhaps because most US citizens had been whipped into a frenzy by a post 9-11 jingoistic and uncritical media who cheered on the disastrous invasion of Iraq. In the end thousands of US troops were killed in the misadventure and billions of dollars wasted on a war that America should never have gotten involved in.

It has always been perplexing to me that South Africans seem so uninterested in potentially life and death decisions taken by our various Presidents to deploy troops in foreign countries. There has been no debate about the strategic or financial objectives involved in such decisions. Neither has there been any debate about the enormous financial cost involved in deploying our troops elsewhere on the continent. Questions about whether South Africa should act like the USA of Africa, acting as the imperial bully boy of the continent by propping up friendly regimes and destabilising regimes seen as unfriendly have also not been asked.

When would it be acceptable for our President to send South African men and women into harm’s way? Would it be acceptable to send troops into a war zone to take part in African Union and United Nations sanctioned peace keeping missions elsewhere on our continent? Personally, I would suspect that many South Africans would support such actions – even though the money spent on such missions could also be used to buy school textbooks or build school libraries.

But what if there is no UN or African Union backing for a mission? What if we send troops to protect the financial interests of private South African mining companies: would that ever be a good idea? What if we send troops to protect a President who came to power in a coup d’état – as was the case in CAR? Is it acceptable from a strategic, moral and financial point of view to send troops into harm’s way to pursue the vague objective of promoting regional peace and security in a part of the world whose political instability does not directly impact on South Africa?

It is exactly because these are fundamentally important questions that section 201 of the Constitution requires the President to inform Parliament “promptly and in appropriate detail” of the reasons for the deployment of the defence force; any place where the force is being deployed; the number of people involved; and the period for which the force is expected to be deployed. The Defence Act further requires the President to inform Parliament about the estimated cost of any such deployment.

What we do know is that some South African troops were deployed in CAR as part of a VIP protection unit to personally protect the now deposed President Francois Bozize. In 2011 the Department of International Relations and Cooperation explained the mission to CAR as follows:

SANDF deployment in the CAR is divided into two mainly  OP MORERO – a unit of the SANDF Special Forces  that was deployed in CAR to provide VIP protection to President Bozize and Operation Vimbesela – the SANDF’s mission involved in the refurbishment of the military bases and the training of the military personnel on that country.

Others were deployed to assist with the training of the CAR army. When extra troops were sent to CAR in January, we were told these troops were deployed for the following reasons:

The employed members of the SANDF will assist with capacity building of the CAR Defence Force and will also assist CAR with the planning and implementation of the disarmament, demobilisation and re integration processes.

Today we were told a different story, namely that the extra troops were sent to protect South Africa’s assets. But Reuters now quotes “regional peacekeeping sources” to the effect that our soldiers on Saturday had fought alongside CAR soldiers to defend the capital. The President contradicted this today, claiming the soldiers were defending their base against an attack. As is often the case in a war, all these claims should be treated with circumspection.

But if it is true that South Africa fought alongside CAR soldiers against the rebels, it would not be surprising. After all, if the mandate of some of your deployed troops is to serve as the private VIP protection unit of the President under siege, then all your troops – also those ostensibly deployed to help train the CAR army – may very well be sucked into fighting to give that President time to flee from advancing rebels.

At the time of writing we are awaiting further information about the safety of our troops stationed in CAR. All we know is that at least 13 soldiers were killed (one is still missing) and 27 have been injured. We have no idea how they will make it out of there safely or whether, god forbid, we will send more troops to CAR.

But what is astonishing is that the South African public has not really been told what the strategic reasons for the deployment of the troops in CAR might have been. What did South Africa get out of sending troops to CAR to act as a VIP protection force of the President? Why were we spending money on the deployment of troops to train the army of a President who originally came to power in a coup? Were there other – perhaps private financial – reasons for the deployment?

Maybe it is time for the South African public (as well as the members of Parliament) to start asking the difficult questions about our military involvement in the internal affairs of another sovereign state? Do we really want to become the USA bully boy of Africa? I don’t think so. Not only can we not afford it, but as a matter of principle we should surely not ever get involved military in another sovereign state unless we form part of a United Nations or African union peacekeeping force. And how is South Africa going to get the remaining troops safely out of CAR?

Is it not time for ordinary South Africans to raise their voices against our military involvement in the sovereign state of another African country and to begin to act more like those millions people in Britain who saw through the half-truths and the lies of Bush and Blair and protested against the invasion of Iraq and less like the pliant post-9-11 American public who allowed their soldiers to be sent to Iraq to be killed and maimed in their thousands.

Nkandla: Why is the ANC protecting the Emperor who is not wearing any clothes?

Mar 17th, 2013
by Pierre De Vos.
76 comments

Members of the ANC and the government it leads often complain about the unfair manner in which the non-SABC sector of the media portrays the party and the government. And it is true that some members of the media suffer from a form of Afro-pessimism and do not often dwell on the government’s successes and achievements. After all, many white middle class consumers of the media do not want to read about what is going well in the country because this does not accord with their own prejudiced view of the ANC. But sometimes the government and the ANC can only blame itself for the bad publicity that rains down on it. Nothing illustrates this point better than the manner in which the government and the ANC have so far handled the Nkandla scandal.

A lesson very few democratic governments ever learn is that when a big scandal like the Nkandla palace upgrade breaks, the worst thing you can do is to try and hide information about the scandal from journalists and the public. When you do this, you give the scandal legs. In a democracy like ours, some if not all of the facts will eventually be revealed – usually in a piecemeal fashion – allowing journalists to continue reporting on the scandal. If you come clean from the start and reveal all the sordid facts, the scandal will die down after the initial flurry of reporting and condemnatory editorials. Journalists have a notoriously short attention span and in the absence of stories on how the government is trying to cover up the use of public funds to enrich the President, it would not report on the Nkandla scandal.

The reason why we are all still talking and writing about the Nkandla scandal – centred around the use of over R200 million of public funds to improve the private palace of President Jacob Zuma at Nkandla – is because the government, bizarrely, continues to claim that Nkandla is a “National Key Point” and that revealing any information about how the money was spent on this private residence would endanger national security and the security of the President.

This move places the interests of President Zuma above the interests of the ANC and the government it leads. Public Works Minister Thulas Nxesi now has to defend the indefensible, damaging his own image and that of the government in the process – all to protect the Emperor of Nkandla. Nxesi can surely not really believe that it is right to invoke a draconian apartheid era piece of  legislation to protect Zuma, whose financial advisor was convicted of bribing the President? Why the ANC has not intervened to protect itself from the political fall-out of their leader’s spendthrift ways is beyond me. Why are they putting the interests of one man above the interests of the party and the country?

The unconvincing attempts at hiding the truth about the abuse of public funds to enrich the President are also counter-productive. Both the scandal and (probably even more so) the attempt at a cover-up, continue to damage the President’s image and create the unfortunate impression that our President sees himself as an old style Emperor who is entitled to draw on public funds to ensure his private comforts and that of his extended family.

This week Minister Thulas Nxesi wrote a letter to National Assembly speaker Max Sisulu informing him that he wants the details of a task team report on the upgrade of President Zuma’s Nkandla palace to be discussed by MPs behind closed doors and “in camera” if necessary. He called the report a “sensitive” matter, by which I can only assume he meant that it is a matter that could embarrass the Emperor. He wrote that tabling the report in Parliament would be “tantamount” to debating a state security matter in public. (By the way, is this increasing use of the word “tantamount” by members of our government not at least a bit scary? I recall how various apartheid era Ministers contemptuously spat out that word whenever they wanted to intimidate their critics. ”His criticism is tantamount to giving comfort to communists and terrorists!”)

In a pointless attempt at hiding the truth about this scandal, Nxesi then continued:

Therefore I propose that the report be tabled and dealt with by a parliamentary committee responsible for security matters or that a mechanism be devised by Parliament that will permit the matter to be discussed without compromising the security of the president and his immediate family.

Section 59(1) of the Constitution states that the National Assembly must “conduct its business in an open manner, and hold its sittings, and those of its committees, in public.” This gives effect to some of the founding values of our Constitution, enshrined in section 1 of that document: “a multiparty system of democratic government, to ensure accountability, responsiveness and openness”. Section 59(2) further states that:

The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

The Rules of Parliament confirms the need for openness and transparency but similarly allows for secret meetings to protect private parties and if it is reasonable and justifiable to do so in an open and democratic society. Of course, it can never be reasonable and justifiable in a democratic society to try and hide facts about the spending on public funds on the upgrade of the private palace of the head of state. As we all know, this is all part of a smoke and mirrors game played by the Minister in a futile attempt to protect the President. (I am assuming that no one who claims this is a national security issue actually believes this to be true.) There is nothing in the National Key Points Act that prohibits Parliament from discussing details of the amounts of public money spent on the private palace of the President – whether that palace was declared a National Key Point or not.

Section 10 of the Act prohibits any person from furnishing “any information relating to the security measures, applicable at or in respect of any National Key Point… without being legally obliged or entitled to do so”. The Minister is constitutionally required to account to the South African public for the spending of public funds via the National Assembly. There is therefore a constitutional obligation on him to reveal how and on whom the R200 million was wasted – although he is not required to reveal the actual security measures in place at Nkandla. The last time I checked, the Constitution trumps any law passed by the PW Botha regime, which means his attempt at avoiding accountability is not in line with the Constitution.

If there were really serious concerns about the safety of the President (who knows, maybe we are not being told about an imminent invasion of South Africa by the Lesotho navy), any aspects of the report dealing with actual security measures the National Assembly could deal with such circumscribed aspects of the report in camera, while the rest could be made public. Such justifiably “secret” information would relate to details about where guards are stationed, when they rotate, what weaponry they have at their disposal, the nature of the security barriers erected and what escape routs are available to allow the President to escape ahead of the invading Lesotho navy.

But because the report does not deal with the security measures in place at President Zuma’s private palace, this would mean it would have to be made public in its entirety. Instead, the report deals wholly or in large part with how much money was spent on what kinds of upgrades the public paid for at President Zuma’s private palace at Nkandla. Besides, even by his own admission, “only” R117 million of the more than R200 million was actually spent on security related cost. Even on a most generous interpretation of the facts, the Minister has a legal duty to reveal those parts of the report not dealing with the R117 million so called “security upgrades”.

Of course, all these attempts by Nxesi to protect his boss – despite the harm this is doing to the ANC and the government – are futile. If the report is tabled in camera in a special committee created for this purpose, any member of the National Assembly who sits on this secret committee could then reveal extracts from the report whenever they have an opportunity to do so during sittings of the National Assembly. This would be so even if one agreed with Nxesi’s bizarre statement that the National Key Points Act prohibit the report from being made public.

This is so because section 58 of the Constitution states that all members of the National Assembly “are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said in, produced before or submitted to the Assembly or any of its committees; or anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.”

Opposition MPs could therefore not be prosecuted for revealing parts or all of the “secret” report in the Assembly. This just goes to show how futile Nxesi’s attempts at keeping details about the enrichment of our President will ultimately be. Given this fact, why he is bothering to protect his boss when this so clearly is not in the interest of the ANC and the government, perhaps says more about his own political ambitions and his lack of principles than it says about his loyalty to the ANC and to the citizens of South Africa.

Outcry about police brutality sheer hypocrisy

Mar 1st, 2013
by Pierre De Vos.
160 comments

Politicians, the leadership of the South African Police Service (SAPS) and many members of the chattering classes claim to be surprised and shocked by video footage showing a man being dragged behind a police vehicle. The man (a Mozambican taxi driver) was then allegedly beaten and left to die in a police cell. The only surprising thing about this incidence of police brutality is that the politicians, members of the chattering classes and the SAPS leadership are not congratulating the police on a job well done.

It is reported that Mozambican taxi driver Mido Macia lay for hours bleeding to death, alone in a cell at a police station in Daveyton, on the East Rand, without medical attention. For nearly four hours, the 27-year-old — the sole breadwinner for his one-year-old son, Sergio, and 23-year-old wife, Jacquelina – lay dying in a crumpled heap, in his own blood and faeces. His alleged crime: refusing to obey police officers who ordered him to stop blocking traffic with his vehicle in Daveyton township’s main street.

The Presidency issued a statement condemning the brutal killing. “Members of the South African police service are required to operate within the confines of the law in executing their duties. The visuals of the incident are horrific, disturbing and unacceptable. No human being should be treated in that manner,” said President Zuma. National Police Commissioner Riah Phiyega also expressed het deep concern about the incident. Her spokesperson Brigadier Phuti Setati, said: “The matter is viewed by the National Commissioner in a very serious light and it is strongly condemned.”

However, as the Council for the Advancement of the South African Constitution (CASAC) pointed out in a submission to the Marikana Commission of Inquiry, under the government of President Jacob Zuma there has been a “deliberate policy” that involves encouraging greater use of force by members of the SAPS. This policy has beens advanced through the promotion of a semi-formal and illegal doctrine of “maximum force”. CASAC points to several statements and actions to back up this claim, pointing to a statement made by the then Deputy Minister of Safety and Security, Susan Shabangu on 9 April 2008 to the effect that:

You must kill the bastards (criminals) if they threaten you or the community. You must not worry about the regulations. I want no warning shots. You have one shot and it must be a kill shot. I want to assure the police station commissioners and policemen and women from these areas that they have permission to kill these criminals. I will not tolerate any pathetic excuses for you not being able to deal with crime, you have been given guns, now use them. If criminals dare to threaten the police or the livelihood or lives of innocent men, women and children, then they must be killed.

Deputy Minister Shabangu’s words were not repudiated by the South African government. In fact on 11 April 2008, two days after Shabangu made this statement, Mr Jacob Zuma (then President of the ANC) said:

If you have a deputy minister saying the kinds of things that the deputy minister was saying, this is what we need to happen. What the deputy minister was saying is: what we are to be doing is dealing with the criminals rather than talking about it.

Minister of Safety and Security Nathi Mthethwa told Parliament’s Select Committee on Security on 12 November 2008 that people involved must be dealt with.

We don’t believe that, when you are faced… with criminals armed with sophisticated weaponry, the police’s task would be to take out some human rights charter. Because we are in the field, we are in the killing field, where criminals are killing law-abiding citizens. Now we are saying to the police that we ourselves have an obligation as well to strengthen the arm of these task forces. So that they are able, on the field, to teach those people a lesson — fight fire with fire. There’s no other way on that.

Soon afterwards, Minister Mthethwa, proposed amendments to Section 49 of the Criminal Procedure Act, the legal provision dealing with the use of lethal force “for arrest”, in order to make it easier for the SAPS to shoot and kill people suspected by the Police of being involved in crime. The amendment to Section 49 that came into force at the end of September 2012, broadened the powers of the police to use lethal force and contributed to an atmosphere of impunity.

In a subsequent press interview Mr Mthethwa also presented the fact that large numbers of police were being killed as one of the reasons why it was necessary to amend Section 49 despite the fact that the law already authorised the use of lethal force in self-defence. As CASAC points out, no evidence has been presented at any point to demonstrate that amending Section 49 will improve the safety of police. “We are at war with criminals,” Mthethwa is quoted as saying.

When Bheki Cele was appointed as National Commissioner of the SAPS in July 2009 he already had a reputation for advocating the aggressive use of force and continued to openly do so during the initial months after he was appointed. CASAC again:

For instance, in an address to the Pretoria Press Club in September 2009, Mr Cele is reported to have said that “criminals were heavily armed with R5 assault rifles” and that “The only language that R5s understand is R5s. The police do not have to think twice and lose their lives”. The statements made by President Zuma at a specially convened meeting [in September 2009] with more than 1000 police station commissioners to the effect that police should not have to fire warning shots when they were faced with an immediate threat to their lives. (President Zuma’s statements reflected his ignorance of the issue. There is no requirement anywhere in South African law or police regulations for warning shots to be fired when facing an imminent or immediate threat to one’s life.)

These were not the only members of government who encouraged the use of maximum force by the SAPS. During this period the then Deputy-Minister of Police, Fikile Mbalula, stated that the SAPS will show “no mercy” to criminals and will be “taking the war to the criminals”. The police should “shoot the bastards” and it was unavoidable that civilians would be killed in the cross-fire between police and criminals.

After a public outcry resulting form the increasing lawlessness of the SAPS, in particular two killings by police during this period — that of Olga Kekana (11 October 2009) and a three year old boy, Atlegang Phalane (7 November 2009) – the government seemed to tone to down its rhetoric. Government ministers began to use less crude rhetoric, but there was no change in the policy to use maximum force. But it continued to be the policy of government to promote more aggressive use of force by the police and this was accompanied by a sharp increase in the number of deaths of people at the hands of the police.

For example in late November 2009 Minister Mthethwa indicated that he maintained the view that what was called for was a “fight fire with fire” approach. A decision was also taken to re-militarise the ranks of the SAPS. The decision was implemented early in 2010.  On 13 September 2012 President Zuma told Parliament that the militarisation of police ranks “had empowered the police to act decisively” and that this had resulted in a lower crime rate.

It was in the wake of this enabling environment that the Marikana massacre took place. No wonder Amnesty International has expressed concerns about police brutality, including torture and extrajudicial killings, in South Africa. Its 2012 annual report documented allegations against the South African police of excessive force, torture, rape and “extrajudicial executions”. There has also been concern about brutal training methods for the police. According to Peter Jordi from the Wits Law Clinic “[Police] Torture is spiralling out of control. It is happening everywhere.” No wonder that the Institute for Security Studies in Pretoria has reported that the number of people shot dead by police doubled in the four years to 2010. Deaths in police custody or resulting from police action numbered 860 in 2009-10, against an average of 695 deaths a year from 2003-2008.

Of course, middle class people who are fearful of crime and do not bear the brunt of the violence and lawlessness of the SAPS, tend to ignore the belligerent statements by politicians and the invisible war on the poor conducted by an insecure, sometimes corrupt, and often badly trained Police Service. It is only when the brutality that has become endemic is captured on video that members of the chattering classes and the politicians who serve their interest suddenly express outrage and shock at the police brutality.

Spare me the hypocrisy.

PS: I borrowed heavily from the excellent CASAC submission to the Marikana Commission of Inquiry when writing this piece.

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