It could not have hurt that the verdict was delivered by a confident and in charge Cyril Ramaphosa, who reminded us again why so many of us have regretted the fact that he lost out to Thabo Mbeki when Mandela’s ANC had to appoint a Deputy President and why some of us still wistfully wonder what might have been if he had become our President instead of either Thabo Mbeki or Jacob Zuma.

Although some newspaper editors might miss Malema (given the fact that he has the ability to make news and sell newspapers), most of us might feel slightly relieved that this hypocritical demagogue has been dealt with so effectively and seemingly so decisively by the ANC senior leadership.

Yet, there is something about the way in which Jacob Zuma and Gwede Mantashe managed to clip Malema’s wings that sits uneasy with me. If they could do it to him, I wonder, could they do it to anyone else – including every single one of us who are members of the chattering classes and sometimes mock or criticise our dancing and singing President and every single ANC member who fails to toe the party line or who speaks out against the abuse of power or incompetence by some members of the leadership?

Is there not just a whiff of Stalinism about the way in which Zuma and Matashe got rid of a political enemy? Can we expect the pictures to be airbrushed next so that Malema will disappear completely from official ANC history?

Recall that Malema was convicted on three charges, two of them having been confirmed by the NDCA. First, he was convicted of contravening Rule 25.5 (1) of the ANC Constitution “by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation”. His sin was that he addressed a press conference on 31 July 2011 at the conclusion of an ANC Youth League NEC meeting where he said amongst other things “in the past we know President Mbeki used that agenda very well …. The African agenda is no longer a priority and we think that there is a temptation by the coloniser and the imperialist to want to recolonise Africa in a different but sophisticated way and President Mbeki stood directly opposed to that type of conduct.”

The NDC found that through his utterances Malema sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity in the ANC. The NDCA confirmed the reasoning of the NDC. The implications of this verdict are rather stark. Any ANC member who now suggests that an out of favour former President may have done some good and that he might have been better than an incumbent leader can now be kicked out of the Party for contravening Rule 25.5(1). If this principle had been applied consistently in the past, Mbeki would have been able to get rid of Zuma and most of his opponents long before the votes were counted at Polokwane. To his credit, he never used such tactics against them.

The verdict comes perilously close to suggesting that no ANC member will henceforth be allowed ever to criticise the incumbent ANC leadership in public. This is a rather handy precedent to set if one intends to stand for a second (or third) term in office or if one wishes to “manage” future leadership elections. To my mind the ruling on this point seems profoundly undemocratic and deeply dangerous and both ANC members and other members of the public should feel more than a bit worried about this move. One should not confuse approval for the outcome of this case (silencing Malema) with what is good for the ANC and South Africa and if one does, one underestimates the possible ruthlessness of the current bunch of ANC leaders aiming to secure a second term for themselves at Mangaung.

Malema was also convicted of contravening Rule 25.5 (c) of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute. This was done for ostensibly slightly more plausible reasons, namely because he addressed a press conference on 31 July 2011 by making announcements amongst others:

• That the Botswana leadership of government poses a serious threat to Africa so we need a progressive government in Botswana;
• We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists and the government is undermining the African agenda;
• The ANC Youth League would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.

Now, imagine, for a moment that the statement did not relate to Botswana but to Zimbabwe and that Zwelenzima Vavi had made it and not Malema. Imagine Vavi had said that Robert Mugabe and his Zanu-PF had ruined Zimbabwe and that Cosatu would mobilise ANC members to oppose the murderous regime in Zimbabwe and to unite opposition forces in that country to try and oust Mugabe. If the Zuma and Mantashe had then proceeded to discipline Vavi and if he was then suspended from the ANC, would we all be cheering this on as we are doing with the Malema case?

Surely ordinary ANC members (yes, also those who helped to get rid of Thabo Mbeki at Polokwane, ostensibly because of his dictatorial tendencies) should feel more than a bit uncomfortable by the manner in which Malema had been dealt with? I ask again: will there be other casualties and will the same principles be used to get rid of other opponents who do not shut up? Will they go after Matthews Phosa? Will they go after Kgalema Motlanthe if he ever grew a backbone and actually indicated that he was interested in presidency of the ANC? Will they go after our charming, but arch-opportunist, Tokyo Sexwale, for showing rather too much ambition?

And should this not all be read against the background of the pending suspension of a senior NPA prosecutor, reportedly because she refused to drop charges against crime intelligence boss Richard Mdluli who is said to enjoy protection from “right at the top”? Remember that last year a secret report prepared by Mduli was leaked to the newspaper and that this report claimed that various ANC leaders met in January 2010 in Estcourt, KwaZulu-Natal to plot the ouster of Jacob Zuma. (Why crime intelligence was involved in such a story is unclear as it is perfectly legal in a democracy for political contenders within a party to plot against each other – as long as they use only legal means.)

Key members of the group that is said to have met are KwaZulu-Natal provincial premier Zweli Mkhize and Human Settlements Minister Tokyo Sexwale.

Remember also that the Secrecy Bill has just as much if not more to do with attempts by the intelligence agencies (firmly under the control of Zuma and Mantashe) to protect their agents and to prevent any exposure of their – legal or illegal – activities which we now know (thanks to Mduli) also focus on the succession race inside the ANC.

It might be that Malema is a special case and that the extraordinary precedent set by this disciplinary case against Malema will not be used against other critics of the current ANC leadership or against anyone who dares to show any ambition to take over the job of President or Secretary General of the ANC. But do not count on it.

Because we get most of our information about the Secrecy Bill from the media, it is not surprising that members of the media have focused on their own short-term interests and have argued (not entirely correctly) that the Bill was primarily aimed at muzzling the press and at hiding corruption. But this view fails to consider the broader context within which the Secrecy Bill is being discussed.

One must recall that this Bill originated with (and was drafted by) members of the intelligence services and is primarily aimed at creating a legal regime that would provide a veil of secrecy behind which our spies would be able to hide. As long as our intelligence services do what they are constitutionally mandated to do and do not abuse their powers, the Bill will, in my opinion, not have as dramatic an effect on the media landscape in South Africa as some commentators have argued.

(Of course, if the Minister of State Security misused this Bill and extended the power of classification to many of the more than 1000 organs of state — as he is empowered to do in terms of the current draft — the Bill may well be used to hide corruption and maladministration on a vast scale, but that was not the primary objective of the Bill.)

Section 199 of the Constitution contains several provisions that signal an understanding on the part of the drafters of the Constitution that security services could easily be misused by the government of the day. Thus it states that the security services must act, and must teach and require their members to act, in accordance with the constitution and the law; that national security must be pursued in compliance with the law, including international law; and that no member of any security service may obey a manifestly illegal order. The security services are obliged to respect constitutional rights and they are prohibited from prejudicing or furthering the interests of political parties.

Dr Laurie Nathan, who has written extensively on the South African Intelligence Services and was also a member of the Ministerial Review Commission on Intelligence (along with Joe Matthews, a former Deputy Minister of Safety and Security, who chaired the body, and Dr Frene Ginwala, the first Speaker of our democratic Parliament), has warned that:

There is ample historical evidence that politicians and intelligence officers can abuse these powers [of intelligence agencies] to infringe rights without good cause, interfere in politics and favour or prejudice a political party or leader, thereby subverting democracy. They can intimidate the government’s opponents, create a climate of fear and manipulate intelligence in order to influence state decision-making and public opinion. Given these dangers, democratic societies are confronted by the challenge of constructing rules and controls that prevent misconduct by the intelligence services without constraining the services to such an extent that they are unable to fulfil their duties. In short, the challenge is to ensure that the intelligence agencies pursue a legitimate mandate in a legitimate manner.

The Review Commission (which reviewed the National Intelligence Agency (NIA); the South African Secret Service (SASS); the National Intelligence Coordinating Committee (NICOC); the National Communications Centre (NCC); the Office for Interception Centres (OIC); and Electronic Communications Security (Pty) Ltd)) reported that the intelligence agencies in South Africa have not fully embraced the constitutional system with its requirements for openness, transparency and accountability and have not always adhered to the letter and spirit of the Constitution and the law.

Although South Africa’s intelligence legislation and governance arrangements have undergone dramatic transformation since the end of apartheid in 1994 and now compare favourably with those in established democracies, there seems to be a disconnect between what the law requires and what happens in practice.

For example the Review Commission found that  the Minister of Intelligence has issued secret regulations that are known only to the intelligence community. The intelligence legislation permits the Minister to do this despite the constitution’s clear statement that regulations must be accessible to the public. Similarly, the Constitution provides that the Auditor General’s reports must be submitted to the relevant legislature and must be made public. Nevertheless, the audit reports on the intelligence services are presented only to the parliamentary Joint Standing Committee on Intelligence (JSCI) and are classified.

As the Report points out (and as Dr Nathan has pointed out elsewhere), despite the fact that the Constitution states that national budgets and budgetary processes must promote transparency and accountability, the annual budgets of the intelligence services are secret; they are reviewed by the JSCI but are not presented to Parliament.

By executive decision the members of the intelligence services are excluded from the labour rights in the Bill of Rights, but this limitation of rights is not covered by legislation as required by the constitution. The Review Commission argued that these deviations from the Constitution are unsound and impermissible. This view was shared by the National Treasury with respect to the intelligence budgets; by the Auditor General with respect to the audit reports on the intelligence services; by the Inspector General and the State Law Adviser with respect to labour rights; and by the Inspector General with respect to the use of intrusive measures.

Most seriously, the Review Commission found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

It is in this context that the Secrecy Bill must be evaluated. It may be that the Review Commission Report was acted upon decisively and that the culture of secrecy and lawlessness reported on in the Commissions finding have been addressed in a bold and decisive manner. But, given the fact that it is always difficult to change a culture of secrecy that is deeply entrenched, it will not be surprising if the serious problems with the Intelligence Services (which threaten the health of our constitutional democracy) have persisted or have even become worse.

Imagine what would happen if  the Intelligence Services tapped your phone (or the phone of any other person considered — rightly or wrongly — to be an “enemy of the state”), if they abducted you (or any other person considered — rightly or wrongly — to be an enemy of the state”) and “rendered you to Pakistan, the USA or Syria to be tortured and maybe killed. What would happen if these institutions with access to mountains of information and the technology and manpower to run disinformation campaigns and terrorise people, embarked on secret projects to destabilise civil society groups, social movements, labour movements or opposition parties who they perceive to be threatening the stability of the state?

If the state were then to be conflated with the government of the day, what will emerge is a national security state in which the normal laws of the country may not apply as strictly to the intelligence community, while its abuse of power and flouting of the law would be difficult if not impossible to expose without facing arrest and eventual imprisonment for between 2 and 25 years. The Secrecy Bill will then become a powerful weapon to protect this national security state and will protect its agents and the institutions who act in such illegal ways from exposure in the  media.

When Moloto Mothapo, from the Office of the ANC Chief Whip, wrote late last year that the Secrecy Bill was essentially a security Bill, not a media Bill, “aimed at protecting the national security of the Republic of South Africa”, this reassurance might have been more illusory than most people might have realised.

It is in this context that claims of the security establishment that the Bill is firmly in line with best international practice must be interrogated. During a National Assembly debate on the Bill late last year, State Security Minister Siyabonga Cwele said: “We have looked at international best practices and there is no country which practises such reckless practice.” He said that even Britain’s Official Secrets Act did not include a public interest defence.

Putting aside the fact that — unlike Britain – South Africa has a written Constitution that contains a set of fundamental human rights which can be enforced by our courts, these claims are not as plausible as one might at first believe them to be. For example, those who claim the Bill contains international best practice, might either be unfamiliar with (or might deliberately be misleading the public about) the fact that in 1995 a group of experts in international law, national security, and human rights, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, adopted the Johannesburg Principles on National Security, Freedom of Expression and Access to Information in Johannesburg and that the Bill in no way measure up to these principles.

The Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mbeki quotes Donald Rumsfeld, who famously said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yeah right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii) such guidelines regarding:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is safe to assume that by the time the Constitutional Court found that it was constitutionally problematic for a sitting judge to head the SIU, President Mbeki was rather glad to see the back of him. The Constitutional Court had found that the appointment of Heath was unconstitutional because it infringed on the separation of powers doctrine, summarising its findings as follows:

The functions that the head of the SIU is required to perform are far removed from “the central mission of the judiciary.” They are determined by the President, who formulates and can amend the allegations to be investigated. If regard is had to all the circumstances including the intrusive quality of the investigations that are carried out by the SIU, the inextricable link between the SIU as investigator and the SIU as litigator on behalf of the state, and the indefinite nature of the appointment which precludes the head of the unit from performing his judicial functions, the first respondent’s position as head of the SIU is in my view incompatible with his judicial office and contrary to the separation of powers required by our Constitution.

Heath then re-invented himself as a private consultant and threw in his lot with several people under investigation by the now defunct Scorpions, including the late Brett Kebble and, of course, Jacob Zuma. I recall taking part in a TV debate with Heath about the Scorpions decision to charge Jacob Zuma (before charges were dropped by the NPA) and finding him to be underwhelming. I thought that he was either not very bright or that he was not entirely  on top of the issues being debated. (Maybe my judgment was clouded by the issues, but I leave that for others to decide for themselves.)

As we all know, Heath has now made a comeback and was recently re-appointed as the head of the SIU by President Jacob Zuma. Since then he has made some rather startling claims, expressing several widely held (but unproven) suspicions about the alleged interference of former President Mbeki in the independence of the NPA as well as criticism of the High Court, Supreme Court of Appeal and Constitutional Court who had all confirmed that the state had proven beyond reasonable doubt that Schabir Shaik was a crook and that he had solicited a bribe from an arms company on behalf of Zuma and had also bribed Zuma directly.

It also transpired that he had been given permission to do private consulting work while heading the SIU. This inevitably raised questions about the wisdom and legality of his re-appointment.

The SIU is a strange beast. It is a creature of statute given wide ranging powers to investigate serious maladministration in connection with the affairs of any State institution; improper or unlawful conduct by employees of any State institution; unlawful appropriation or expenditure of public money or property; unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon State property; intentional or negligent loss of public money or damage to public property; and other forms of corruption. But this power is circumscribed in the sense that the SIU is only empowered to investigate a matter if the President formally requests it to do so.

Section 3 of the Special Investigating Units and Special Tribunals Act states that the President “must appoint a person who is a South African citizen and who, with due regard to his or her experience, conscientiousness and integrity, is a fit and proper person to be entrusted with the responsibilities of that office, as the head of a Special Investigating Unit established by the President”. The SIU is therefore at the same time quasi-independent, yet acts only at the behest of the President. As such the head of the SIU can be viewed as the President’s personal anti-corruption tsar.

If the head of the SIU is an employee in terms of the Public Service Act (something that is not clear to me) he would also be bound by section 30 of that Act which states that no employee is allowed to perform remunerative work outside his or her employment in the relevant department, except with the written permission of the executive authority of the department. When outside work could reasonably be expected to interfere with or impede the effective or efficient performance of the employee’s functions in the department or constitute a conflict of interest, permission should ordinarily not be given.

Whether this provision is legally applicable to Adv. Heath or not, at the very least it seems advisable that — given the nature of the work done by the SIU — Heath should reveal the nature of the outside work he is doing to prevent the perception of a conflict of interest. This is so for the same reason that Adv. Heath’s comments in City Press seem completely inappropriate.

When the SIU investigates allegations of corruption and goes after those allegedly involved in corruption, it is important that its head should be viewed as being beyond reproach and as having the requisite credibility and legitimacy to avoid allegations that the SIU is being used to settle political scores. One can well imagine that if Heath investigates corruption within the state, those fingered by any investigation will immediately claim that they are being unfairly targeted for political reasons and that Heath is assisting President Zuma to settle political scores with his opponents to improve Zuma’s chances of re-election as ANC President next year. This will negatively affect the credibility and effectiveness of the SIU and will provide those targeted for investigation with political cover to pay nt themselves as victims of a conspiracy – even when this is clearly not the case.

An interesting legal question is whether the SCA’s Simelane judgment could be used to challenge the lawfulness of his appointment. After all, the requirements of the head of the SIU needing to be “fit and proper” mirrors the requirement in the NPA Act for the National Director of Public Prosecutions having to be fit and proper.

In principle, it should therefore be possible to apply the principles developed in the Simelane case to the Heath case. In practice, the facts are slightly different as Heath’s latest rather outrageous statements were made after his appointment. But, if one follows the logic of the Simelane judgment one might well ask whether, given the fact that Heath himself has admitted to run a trust fund on behalf of Bret Keblle (from which he paid various people for undisclosed reasons), the President interrogated this issue sufficiently to ascertain whether Heath was indeed “fit and proper” as required by the SIU Act and whether zuma might not have acted irrationally in appointing Heath without asking enough questions about this unseemly arrangement.

According to news reports, Heath’s company, Heath Executive Consultants, was contracted by Johannesburg Consolidated Investments (JCI) as consultants and, according to company records, initially paid a monthly retainer of R230 000, later increased to R325 000. According to JCI’s forensic audit, Heath received payments of more than R18.5 million in the space of just over three years, more than half of which was apparently channelled to third parties.

Heath said he was not privy to the nature of contracts with third parties, and admitted it was possible, as suggested by forensic auditors, that some of these recipients were indeed former employees of DRD and Ain — two companies that were at the centre of a fierce dispute estimated to have cost Kebble more than R90-million.

Questions could therefore be asked about the legality of Heath’s appointment.

However, my guess would be that this case will never go to court (the DA perhaps feeling less worried about threats to the Rule of Law in the case of Heath?) and that his appointment will not be challenged before a court.

Nevertheless, I would not be surprised if the President decides on his own to retract the appointment of Heath, given the embarrassment already caused by him since his re-appointment. And even if the appointment is not reversed in the next few days, I would not be surprised if Heath does not last long in his new role. Being someone who seems rather clueless about politics and diplomacy (and a bit of a cowboy to boot), he is bound to disappoint and embarrass President Zuma – just as he did Mbeki. How long then before he becomes a liability for the SIU and, more importantly, for President Zuma and is fired?

PS: The original version of this article wrongly stated that Heath was appointed by Thabo Mbeki. This has now been corrected.

By December 1996 that Court had already declared invalid the death penalty as well as action taken by then President Nelson Mandela. It had confirmed the constitutional validity of the amnesty provisions in the Truth and Reconciliation Commission Act and had sent the final Constitution back for redrafting because the draft had failed to conform to the 34 Constitutional Principles agreed to by negotiators before the 1994 election.

In short, by the time the final Constitution was signed by President Mandela 15 years ago, the Constitutional Court had demonstrated a clear intention to do its job properly by declaring invalid acts of Parliament and actions of the executive which did not conform to the provisions of the supreme Constitution. 

President Mandela might well have had reason to be miffed by the Constitutional Court because in the Executive Council of the Western Cape Legislature case it had found that the Parliament had unconstitutionally tried to delegate law making power to President Mandela and that his exercise of powers in terms of this delegation was thus unconstitutional. (This judgment was one of the judgments relied upon by those who challenged the unconstitutional attempts by President Jacob Zuma to extend the term of office of the former Chief Justice Sandile Ngcobo.)

President Mandela might therefore have expressed concerns about the “intrusion” of the Constitutional Court into the realm of “policy making” and might have warned that the work of the Constitutional Court will be assessed to determine whether that court is acting in a way that questions the power of the democratically elected legislature and the executive. Yet, in his speech at Sharpeville 15 years ago President Mandela did no such thing. Instead he said the following. 

Friends and compatriots;

By our presence here today, we solemnly honour the pledge we made to ourselves and to the world, that South Africa shall redeem herself and thereby widen the frontiers of human freedom.

As we close a chapter of exclusion and a chapter of heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world.

As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation`s highest aspirations.

In writing the words which today become South Africa’s fundamental law, our elected representatives have faithfully heard the voice of the people. To the Constitutional Assembly, and to its Chairperson and Deputy Chairperson who guided it through a complex and arduous process, we owe thanks.

We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements.

In centuries of struggle against racial domination, South Africans of all colours and backgrounds proclaimed freedom and justice as their unquenchable aspiration. They pledged loyalty to a country which belongs to all who live in it.

Those who sought their own freedom in the domination of others were doomed in time to ignominious failure.

Out of such experience was born the understanding that there could be no lasting peace, no lasting security, no prosperity in this land unless all enjoyed freedom and justice as equals.

Out of such experience was born the vision of a free South Africa, of a nation united in diversity and working together to build a better life for all.

Out of the many Sharpevilles which haunt our history was born the unshakeable determination that respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.

These principles were proclaimed wherever people resisted dispossession; defied unjust laws or protested against inequality. They were shared by all who hated oppression, from whomsoever it came and to whomsoever it was meted.

They guided the negotiations in which our nation turned its back on conflict and division.

They were affirmed by our people in all their millions in our country’s first democratic elections.

Now, at last, they are embodied in the highest law of our rainbow nation.

This we owe to many who suffered and sacrificed for justice and freedom.

Today we cross a critical threshold.

Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution.

Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.

Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity.

Let tolerance for one another’s views create the peaceful conditions which give space for the best in all of us to find expression and to flourish.

Above all, let us work together in striving to banish homelessness; illiteracy; hunger and disease.

In all sectors of our society – workers and employers; government and civil society;
People of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west – let us join hands for peace and prosperity.

In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond.

Today we humbly pay tribute to them in a special way. This is a monument to their heroism.

Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny.

We give life to our nation`s prayer for freedom regained and continent reborn;

God bless South Africa;
Nkosi Sikelel’ i Afrika;
Morena boloka sechaba sa heso;
God seen Suid-Afrika.

I quote President Mandela’s full speech above to remind us all – on this fifteenth anniversary of our Constitution - of President Mandela’s commitment to the Constitution and the supremacy of the Constitution enforced by a fearless Constitutional Court. Lest we forget.