Governance

Secrecy Bill less about media freedom, more about national security state

Jan 31st, 2012

Not enough South Africans understand that the Protection of State Information Bill (also popularly known as the Secrecy Bill) now being considered by the National Council of Provinces (NCOP) is not primarily aimed at muzzling the media. Although in its current form the Bill will have a chilling effect on the media and would probably stop many whistleblowers from leaking sensitive or embarrassing information to the media, the Bill is primarily aimed at shielding the various intelligence agencies and structures from too much scrutiny and at ensuring that the ordinary constitutional checks and balances that apply to other organs of state that exercise public power would not apply to the intelligence services.

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.

Principle 15 state that:

No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

This principle thus captures the so called public interest defence, something that our politicians say is foreign to international law. This claim clearly is not sustainable. This principle is further supported by a whistle blowers provision in principle 16 which states that “[n]o person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure”.

Furthermore, principle 18 states that the “[p]rotection of national security may not be used as a reason to compel a journalist to reveal a confidential source”.

If one reads the Johannesburg Principles and one evaluates the provisions of the Secrecy Bill against these principles then it is clear that the Secrecy Bill does not, as our Minister of Secrecy and other officials claim, comply with international best practice (best practice captured in the Johannesburg Principles).

Even if we had no worries about the possible abuse of the Intelligence Services (which would be naive, even in the most progressive state), the Secrecy Bill should therefore raise serious concerns about the power and influence of the security services and the corruption of the state by the various spy agencies whose job it is to obfuscate, lie and hide information (sometimes for a worthy cause and often for a nefarious cause).

But given the content of the Intelligence Review Report (a report authored by a credible expert and two people intimately connected with the ANC and the government it leads), the fact that our Minister of State Security is so adamant on passing a piece of legislation that almost certainly infringes on the right of access to information and the right of freedom of expression protected in the Constitution, must be truly worrying. And the worry stems less from the narrow concerns raised by the media and more from a broader concern about the securitisation of South Africa’s democracy and the potential devastating effect this may have on social movements and other grassroots democratic forces who might pose a challenge to the entrenched interests of a certain faction of the governing party who controls the state.

Why are soldiers patrolling the streets of Cape Town?

Jan 16th, 2012

by Pierre De Vos.

72 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii) such guidelines regarding:

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

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

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

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

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

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

About the lying Minister and the dithering President

Oct 17th, 2011

by Pierre De Vos.

74 comments

I regret to say that I had a lovely weekend. Despite my best efforts (opening the windows, spraying water on the lawns of the block of flats I stay in, praying to the mosquito gods), no infestation of mosquito’s took place. I was so hoping for those mosquitos to arrive en masse, so to speak, so that I could book myself and my partner into the One and Only Hotel in the hope that someone else would pick up the bill. (Who might have paid for such a frolic is unclear, but I work for a public university and I am basically “public property” so maybe the Vice Chancellor would have ordered tax payers money to be used to cover the R25 000 bill for such a stay. Or perhaps some starving children somewhere in a small rural village in the Eastern Cape would have been kind enough to pay.)

Today, back at work after a lovely – mosquito-free – weekend, I completed my study of the report by the Public Protector into allegations of a breach of the Executive Ethics Code by Minister of Cooperative Governance and Traditional Affairs, Mr Sicelo Shiceka. And what interesting reading this report made. Apart from learning that the Minister claims that he was entitled to stay in the most expensive Hotel in Cape Town “due to an influx of mosquitoes” experienced by the Minister at his official house (presumably because shops in Cape Town had all run out of mosquito repellent and Doom on that particular day), I have also learnt that one of the Ministers in our government is a bare faced liar, but – at the time of writing – remains a Minister nevertheless.

He lied about not visiting his drug-dealing girlfriend in a Swiss jail while on a so called study tour of that country. He probably lied about meeting officials from the Euro 2008 soccer tournament while he was there. He definitely lied about having been asked to go to Switzerland by Danny Jordaan. He lied to then President Kgalema Motlanthe about the nature of the trip and why it was necessary to go on it. He lied about being sick after he had claimed in a radio interview that he is playing golf and is healthy and ready to return to work. He lied about not staying at the Lesotho Sun Hotel (and then tried to get his department to pay for this private trip, which he claimed he never went on).

On top of that, the Minister appears not to be a very good liar. If he can’t even be trusted to lie properly, how can we trust him with being a good Minister? I mean, surely the first thing they teach one at political school is that if one falsely denies something one must make sure that there is no readily available evidence to show that one has lied. If one denies visiting a girlfriend in prison, say, one should probably first ensure that the authorities at the prison in Switserland won’t have proof that one’s denial is false.

It also helps not to make a claim that one is sick, when this directly contradicts another claim one has made in a radio interview that one is as healthy as can be (which means one cannot say that one has been misquoted or quoted out of context). If one denies ever staying at a Hotel, one should preferably have paid one’s bill and should have been unobtrusive. One’s Department should preferably not have issued an accommodation voucher for one’s stay in that Hotel with details that read: SICELOMR SHICEKA (DPLG – DEPT PROVINCIAL AND LOCAL GOVERNMENT) – see Voucher reproduced below.

I mean, the Minister is really not very good at this kind of thing, as this small section of the Report dealing with the Minister’s denial that he ever stayed at the Lesotho Sun Hotel illustrates:

The evidence also shows that Mr Shiceka provided TWF with the room numbers at the hotel which corresponds with the room numbers on the final invoice issued. The invoice further shows that telephone calls were made from room 328 by the SAPS VIP Protector that accompanied Mr Shiceka, the late Mr B Mthethwa to: (a) Mr Shiceka’s Private Secretary, Ms Z Mabuza (Mogala), (b) Ms G Ncube an official of Kwela Fleet Management and, ostensibly to arrange for a petrol card for Mr Shiceka’s transport in his official vehicle; and (c) Mr V Mokadi, a SAPS VIP Protector assigned to Mr Shiceka.

Mr Shiceka is now claiming that the procedure followed by the Public Protector was flawed, “that an injustice has being meted out against him and his rights have been crossly violated,” adding that he co-operated fully with the investigation. The Minister also categorically rejected all the findings of the Public Protector as baseless and lacking in evidence to support its recommendations, according to his office. ”Accordingly, the Minister will challenge this matter in court.”

Maybe I am a bit cynical, but I will add this last statement to the long list of lies told by the Minister. There is not ever going to be a court challenge as there is no legal basis for such a challenge and as such a challenge will expose the Minister to further humiliation and will reveal even more starkly how dishonest he is and what overwhelming evidence exist to demonstrate that he is not only a liar, but a bad liar.

Mr Shiceka first demanded to be provided with a provisional report “as per established rule” and once he was provided with such a report claimed that his rights have been grossly violated because such a provisional report was issued. These are the actions of a person who is seriously incompetent – even when lying and misusing our money – who is not trustworthy and should not be allowed to be a second hand car salesman, let alone a Minister in our government.

Moreover, quite troubling, witnesses interviewed by the Public Protector were approached by Minister Shiceka and his advisors after he received the provisional report and they were then questioned in connection with the information provided to the Public Protector. As the Public Protector writes, this gave rise to a perception of victimisation and the possibility that witnesses would be occupationally disadvantaged because they spoke the truth. This came after the provisional report stated that witnesses interviewed during the investigation feared victimisation. As one witness told the Public Protector: ”What the Minister wants the Minister gets or else you are gone.” The Report then continues:

It is of further concern that Mr Shiceka in his response purports to speak on behalf of these witnesses. Of particular concern is that Mr Shiceka laments not being given the opportunity to cross examine witnesses when his own response suggests that he or his advisory team did indeed do so. This on its own raises ethical issues, especially in the light of the provisions of the Protected Disclosures Act, 2000.

This raises the question of whether the Minister – apart from being a liar – is perhaps also a bully or a thug. I advise anyone who would like to come to the defence of the Minister to read the full Report of the Public Protector.

It makes for disturbing reading regarding the mind-set of the Minister involved and poses questions about what kind of organisation or institutional culture could have given rise to such a mind-set. Is this an isolated case, or are some other cabinet ministers also infected with this kind of incompetence, venality and arrogance? I would guess that no reasonable person who reads this report and sees that much of it is based on incontrovertible evidence – including documentation the veracity of which is beyond dispute – would not conclude that the President must act immediately.

Which means that the President has a duty immediately to fire the Minister. Yet, this has not happened. President Jacob Zuma is said to have ”taken note” of the Public Protector’s report. Presidential spokesperson Mac Maharaj told a newspaper that “the President trusts that the work being done by the office of the Public Protector will help prevent the misuse of public funds and strengthen good governance”. Maharaj would not be drawn on any timeframes for the possible implementation of the Protector’s recommendations.

It took me an hour or two this morning to read the Report and to conclude that the Minister must be fired immediately to protect our government from further embarrassment. Every day this man remains a member of government (or even an ordinary member of Parliament) is a day in which the taint of dishonesty and corruption is ever more closely associated with our government, the governing party and the President who leads both.

As anyone who has read the Report will know, this is a not a case in which reasonable people could possibly dispute the fact that Minister Shiceka is a liar and a dishonourable person. The President has a right to fire any cabinet Minister when he wishes to do so. These are political appointments and the normal rules of labour law or natural justice do not apply. Claiming that “processes” need to be followed before the President could act on this matter would therefore itself be a blatant lie.

If the President wants to fire the Minister he has every legal right to do so at any time. He can just phone one of the Gupta brothers and to get their permission and then he can go ahead and dismiss the Minister. (Well, the part about the Guptas is not in the Constitution, I must confess.) He could have fired the Minister long ago and he could have fired the Minister after the Report was made public and before anyone could have the time to say “mosquito”. Yet for some inexplicable reason he has not done so. It is inexplicable because it is in the President’s own interest to get rid of this incompetent liar as soon as possible. Every day that passes without the President firing the Minister is a day in which the perception will grow that the President himself is a person who does not care when his Ministers tell blatant lies, bully their staff and waste money.

President Zuma, what are you waiting for?

Why the Constitution is not a conservative document

Sep 7th, 2011

by Pierre De Vos.

54 comments

Prof Jane Duncan has taken issue with a post on this Blog in which I criticised the views expressed by Deputy Minister Ngoako Ramatlhodi regarding the perceived problems with our Constitution. Over at the SACSIS Blog Prof Duncan provides a relatively nuanced and interesting (but in my view misguided) analysis, in which she seems to argue that the Constitution is a major stumbling block standing in the way of addressing the major structural problems in our society which keeps poor people poor and rich people rich:

Ramatlhodi’s arguments are clearly self-serving, and reinforce a trend in the ANC’s behaviour to attack fundamental rights and freedoms. But aspects of his argument ring true, and the standard constitutionalist argument made by the likes of de Vos are inadequate to the task of responding to these criticisms. The contradictions of the type of transition that South Africa chose led to a constitution that is not nearly as transformative as they make like to think. In fact, in certain respects, the Constitution is a profoundly conservative document.

She correctly points out that the South African Constitution is a negotiated document that embodies compromise and that the Constitutional Assembly (who drafted the 1996 Constitution) was bound by 34 constitutional principles which were negotiated by an undemocratic and unelected body at CODESA. She claims that the manner in which the Constitution’s parameters were developed has limited the democratic form and content of South Africa’s constitutional order and notes that:

A clause was also inserted guaranteeing the right to property, where property may only be expropriated for a public purpose and in the public interest, and subject to compensation. So in a cruel twist of fate, the ANC government took on the responsibility of paying for the property that black people had been historically dispossessed of by the white minority. The consequences of this concession to the white minority are starkly apparent. Property relations have remained largely untransformed and land redistribution through the ‘willing buyer, willing seller’ mechanism has been largely a failure. The socio-economic rights regime in the Constitution is not geared towards changing these structural problems.

The arguments presented by Prof Duncan are, in my view, based on a misconception about the nature of the South African Constitution. As I see it, there are at least two problems with the argument presented by Prof Duncan. First, she seems to suggest that the Constitution is somehow at least partly to blame for the fact that the ANC government has not shown any appetite for revisiting the back room deals about the structure of the South African economy – deals reached between the ANC and white capital before the first democratic election in 1994. This ignores the fact that the ANC government has not effected radical change because the new political elite is benefiting just as much from this pre-1994 deal as those white capitalists who struck the deal with them.

Second, she fails to point to those provisions of the Constitution that supposedly give it the profoundly conservative character that she talks about. It is also not clear what aspects of the Constitution she is referring to when she argues that the document has limited the democratic form and content of the South African constitutional order. The only constitutional provision mentioned in the article is the property clause, which she seems to think requires the state to follow a willing buyer willing seller approach to land reform — something the property clause decidedly does not do.

It seems to me Prof Duncan is partly blaming the Constitution for the failures by the ANC government to address the fundamental structural inequalities in our economy — although, to be fair, she does admit that the ANC government should also carry some blame for these failures.

Of course, it must be conceded that the Constitution does contain a property clause which requires just and equitable compensation to be paid to anyone whose property is expropriated to address past land dispossession and to effect land reform. Just and equitable compensation does NOT, however, require the state to follow a willing buyer willing seller policy. That policy was a deliberate policy choice of the ANC government not demanded by the Constitution. Moreover, the Constitution states that the price to be paid must reflect an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including:

the current use of the property;
the history of the acquisition and use of the property;
the market value of the property;
the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
the purpose of the expropriation.

A far more radical land reform programme which would allow for the expropriation of unproductive land and would specifically target land which formed the subject of forced removals over the last 50 years of apartheid, while taking into account the need for South Africa to maintain food security, would be admissible in terms of our Constitution. It is not the fault of the property clause that this has not happened.

Although the state is required to pay compensation for all expropriated land, this compensation does not have to equate to the market value of the property and can be far below the market value, depending on the other relevant factors. The fact is that the land reform programme has been a dismal failure so far because the government has stuck to the absurd willing buyer willing seller policy and because it has failed to put structures and mechanism in place to ensure that those who benefit from land redistribution are assisted either to work the land productively or to make sustainable use of the property in some other way.

One of the major arguments used by the left against a constitutional order in which the Constitution is supreme and in which a Bill of Rights is enshrined to protect the rights of everyone, is that it leaves untouched the private wealth and power of those whose actions often far more decisively affect the lives of the unemployed and the working poor. In such a system, so the argument goes, radical structural transformation of the social and economic system is impossible because private wealth and power is protected by the Bill of Rights, but private institutions and individuals who wield this enormous power has no obligation in terms of that Bill of Rights to respect the rights of the marginal, the vulnerable and the poor.

The South African Constitution is different, as it contains some radical provisions that acknowledge the fact that private power is a major stumbling block in transforming the economy and in creating a more egalitarian society. Thus, many of the provisions of the Bill of Rights also apply to private institutions (companies like De Beers; Old Mutual; Anglo-American; SA Breweries and those owned by Patrice Motsepe) and individuals, while section 39(2) imposes an obligation on the courts to develop the common law and customary law and to interpret legislation to bring it in line with the spirit purport and objects of the Bill of Rights. Often private law rules benefit the powerful by assuming that they are engaging with the less powerful in society on equal terms. Our Constitution commands the judiciary to develop private law rules to take account of this (something, admittedly, that many judges — also those appointed as so called “transformation judges” appointed by the ANC dominated JSC — are often reluctant to do).

And the spirit, purport and objects of the Bill of Rights are fundamentally democratic and transformative. It places a positive duty on the state to take steps that would “achieve equality” (making use of racially based redress measures in appropriate circumstances); that would provide more people progressively with better access to housing, health care, social services, water and electricity; and that would protect the environment. It also places a duty on the state to provide anyone with basic education and to do so in an equitable manner (as the right to education must be read in conjunction with the right to equality).

The fact that the government of the day decided to leave the schooling system largely untouched, retaining pockets of excellence in suburban schools, while not addressing (or only addressing around the margins) the poor schooling received by learners in many township schools, was a policy choice not mandated by the Constitution. In fact, an argument could be made that a proper legal challenge might well result in a finding that the present schooling system (a system which benefits the children of the old and new elites, including the children of Cabinet Ministers) and the way it is being funded is unconstitutional.

One of my students is doing fascinating research on the manner in which teachers are funded by the Department of Education and has concluded that the funding model used by the Department is deeply flawed. This is because it has had the effect of ensuring that better performing and better qualified teachers remain in the suburban schools where they teach the children of the old and new elite, all while a majority of South African children receive a substandard education from often badly trained and unmotivated teachers. The Constitution may well be invoked to challenge this system and it definitely will not stand in the way of a radical overhaul of the system — just as it will not stand in the way of the introduction of a National Health Insurance scheme.

It must be conceded that the Constitution may be faulted for adopting an electoral system that bestows far too much power on political party leaders and bureaucrats and far too little power on ordinary citizens, allowing for an often arrogant and technocratic approach to governance encapsulated by the discourse of “service delivery”. Given the racialised nature of support for political parties, the (now slightly fading) moral authority of the governing party, the centralising and sometimes almost Stalinist tendencies of some factions within the ruling party, and the dominance of a discourse which endorses the need for a strong and less than fully democratic state (purportedly to better effect social and economic change in South Africa), it is not clear, however, that another electoral system would have really led to the kind of grassroots democracy that many of us yearn for.

The Constitutional Court has not been unaware of these problems and have developed interesting legal avenues to try and enhance the democratic nature of the way we are governed. In social and economic rights cases the court has stated that for the government to act reasonably (and hence constitutionally) when it take steps to realise the social and economic rights contained in the Constitution, it has a constitutional duty meaningfully to engage with the affected communities — the so called beneficiaries of “Service delivery” and “development”. (This failure to consult with the community affected by an attempt at “development” was one of the reasons why the Cape High Court found that the City of Cape Town had acted unconstitutionally when it built open toilets for the residents of Makhaza.)

Of course, I am not arguing that the Constitution can or will be used in order to fully and decisively address the structural social and economic inequalities in our society. The state is supposed to do that — within the disciplining boundaries of the Constitution. The Constitution can be used by social movements and political activists as well as lawyers to prod the state along and to force the state to act in a less technocratic and heartless manner or to engage in a far more democratic manner with citizens when it does so. There are limits to what the law and our courts can be expected to achieve.

But to argue that the Constitution is deeply conservative and hence that even if the ANC government wanted to it would not have been able to implement radical policies to begin to address the social and economic inequalities in our society because of constraints placed on it by the Constitution, seems to me to over egg the pudding just slightly.

Why provinces have little real power but huge responsibilities

Aug 11th, 2011

by Pierre De Vos.

47 comments

The exact contours of South Africa’s quasi-federal system of government, in which legislative and executive powers are distributed between different spheres of government in a way that seems to tilt power away from provincial governments towards the national government, has not yet been fully worked out. The Constitutional Court has only been asked to consider this rather complex issue in very few cases, perhaps because provinces — even the Western Cape government currently controlled by the opposition Democratic Alliance – have not pushed the envelope on this issue.

There are reasons for this reluctance on the part of Provinces to challenge the powers of the national legislature and executive. Provincial governments do not have the power to raise much revenue and is also required to co-operate with the national sphere of government. Besides, provincial legislatures do not have any residual powers to pass legislation. In other words, unlike the national Parliament, which enjoys plenary legislative power within the bounds of the Constitution, the legislative authority of provinces is circumscribed by the Constitution.

Schedule 4 of the Constitution lists those functional areas on which both the national Parliament and the provincial legislatures can pass legislation. These include important areas such as housing, health care, education, policing and education. Schedule 5 lists functional areas with regard to which provincial legislatures have exclusive legislative competence, but these exclusive powers relate to subjects of little importance such as beaches and amusement facilities; billboards and the display of advertisements in public places; cemeteries, funeral parlours and crematoria; fencing and fences; local sport facilities; noise pollution; street trading; street lighting; and traffic and parking.

Provinces have no power to legislate on a matter falling outside Schedules 4 and 5 unless it is a matter “that is expressly assigned to the province by national legislation” or is a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”.

This does not mean that provincial governments have no power to affect the lives of ordinary citizens. A good provincial government can make a huge difference to the delivery of basic services and can also wreck the best-laid plans of a national minister if it does not do its job properly. This is because provincial executives are tasked with implementing not only provincial legislation in the province, but also with implementing all national legislation within the functional areas listed in Schedule 4 or 5 (except where the Constitution or an Act of Parliament provides otherwise).

That is why a national minister of housing, health or education has limited powers to ensure that the services provided in a province is of a high standard. Where the MEC for education and her officials in a province fail to ensure that textbooks are delivered on time or that ARV medication is freely available at hospitals and clinics, the national minister can usually do little more than discuss this problem with that MEC during a MINMEC meeting (a meeting of the minister and relevant MEC’s).

Our system of co-operative government means that the national government and provincial governments have a duty to co-operate with one another “in mutual trust and good faith”, but as anyone knows who has tried to delegate work to an incompetent or lazy person, these requirements work best when the MECs are diligent and their departments are run efficiently. Unless the national government decides to intervene officially in a province in terms of section 100 of the Constitution (in cases where a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution), the national minister has limited power to interfere in the day to day running of the affairs of a provincial department.

But despite the fact that these general principles are now quite settled, it is far from clear exactly where the powers of the national Parliament and Executive end and where the powers of provincial Parliaments and Executives begin. We would need more test cases to be brought to the Constitutional Court to clarify the boundaries of the powers that may constitutionally be exercised by provincial Parliaments and provincial Executive Committees.

That is why the Constitutional Court judgment handed down today in the case of Premier: Limpopo Province v Speaker of the Limpopo Provincial Government and Others is of some interest — even though the case dealt with a seemingly rather technical question. The question presented in the case was whether the Provincial Legislature of Limpopo had the authority to enact legislation dealing with its own financial management. It arose out of the Financial Management of the Limpopo Provincial Legislature Bill, 2009 (Bill), which was passed by the Provincial Legislature, but which the Premier – very properly, it must be said — declined to assent to and sign. (Maybe the Premier’s legal adviser could be promoted to assist the State Law Adviser with the more complex constitutional questions with which he seems to have such difficulties.)

The Bill mirrored to a large degree national legislation on how to deal openly and transparently with the finances of the Limpopo legislature by creating an oversight committee; setting out the responsibilities of the accounting officer in relation to the money of the provincial legislature; how to deal with the financial misconduct of its own employees and several other related issues.

Schedule 4 or 5 of the Constitution does not allow the provincial legislature to pass laws dealing with its own financial management. The most important legal question was therefore whether the Bill dealt with a matter “that is expressly assigned to the province by national legislation” or a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”. It is the second question that is of particular interest here.

In a minority judgment, Justice Yacoob (in a judgment concurred in by Justice Cameron) argued that the Constitution did “envisage” that a province could pass legislation like the Bill under discussion. Finding that the word “envisages” means something different from “expressly assigned”, Yacoob argued that section 215(1) of the Constitution envisaged that provincial legislatures had the power to pass legislation dealing with its own financial management.

This section requires provincial budgetary processes to promote transparency, accountability and effective financial management of the economy, debt and the public sector. The section then provides that national legislation must prescribe certain pre-requisites that must be complied with by provincial entities and prescribes what budgets in each sphere of government should contain. This, in effect, implied (although the minority is careful not to use this term) that a provincial legislature has the power to determine its own budgetary processes and that it could determine this process by passing legislation regulating that process.

The majority disagreed. In a judgment authored by Chief Justice Ngcobo, a slightly narrower view was taken on the powers conferred on provincial legislatures by the Constitution. It did so by arguing that where the Constitution does not expressly grant legislative powers to the provincial legislature, it does not “envisages” the enactment of provincial legislation. The majority judgment thus confirmed the view that one cannot assume that provincial legislatures have the power to pass legislation merely because they have the power to regulate their own processes and can do so administratively.

Our constitutional scheme does not permit legislative powers of the provincial legislatures to be implied. Were it to be otherwise, the constitutional scheme for the allocation of legislative power would be undermined. The careful delineation between the legislative competence of Parliament and that of provincial legislatures would be blurred. This may very well result in uncertainty about the limits of the legislative powers of the provinces. In the light of the plenary legislative powers of Parliament, it would result in the provinces having concurrent legislative competence with Parliament in respect of many matters. This is not what the drafters of our Constitution had in mind.

If the legislative powers of the provincial legislatures are to be implied beyond those expressly set out in the Constitution, this would, in my view, diminish, through an expansive reading of the Constitution, the residual legislative powers of Parliament. This would be inconsistent with the scheme of the Constitution, by which the provincial legislatures are given specific powers under the Constitution and Parliament is assigned the rest. In my view, the plenary legislative powers granted to Parliament are not to be diminished by implying legislative powers of provincial legislatures not expressly stated in the Constitution. The assignment of powers to the provinces must be expressed in clear and unequivocal language.

Chief Justice Ngcobo argued that the sections relied upon by Justice Yacoob do not envisage the enactment of provincial legislation but, on the contrary, expressly envisage the enactment of national legislation. The national parliament could therefore pass such legislation for provinces, but provinces could not pass such legislation themselves.

In a formal legal sense, I suspect this reading is the more accurate one. It is also more in line to the spirit of the Constitutional Court’s previous forays into this area of the law as it is based on the assumption that provinces only have those powers explicitly provided for by the Constitution and that our Constitution was drafted to secure the upper hand in such matters for the national sphere of government.

On a policy level the (perhaps) slightly more strained interpretation of Justices Yacoob and Cameron is probably preferable to the more logical and coherent interpretation of the majority. If we are going to have a provincial sphere of government that works effectively, a sphere of government where each province established its own character and its government could demonstrate its ability to do better than the national government, our courts should be hesitant to interpret the Constitution too narrowly in a way that favours the powers of the national sphere of government.

At the moment this will make little difference but as the political landscape changes and as more provinces are governed by parties who are not represented in the national government, this could become important. Imagine the SACP or some other party of the left governs three provinces while the ANC retains power at national level. In such a scenario one would probably want the provinces to have the freedom to experiment with different policies that might demonstrate — within the boundaries of what is constitutionally permissible — the benefits of such progressive policies. Whether this will really make any difference — given the fact that budgets are mostly determined at national level — is another question.

However, because the case dealt with a rather technical issue, it does not really help us to understand how the Court will rule in cases where provincial governments push through legislation aimed at further regulating the administration of health, education, policing and housing and where such legislation is in conflict with national legislation on the same topic.

One may argue that it is time for provincial governments to become more adventurous by establishing particular legislative standards and criteria for the delivery of very important services in the fields of education, housing, health and policing as they are co-responsible for these along with the national government. But because provinces have very little independent revenue raising capacity and depend on an allocation from the national budget, this will be rather difficult — especially if a province wished to establish higher standards for the delivery of a particular service and this would have budgetary implications.

Who will guard the guardians?

Aug 5th, 2011

by Pierre De Vos.

74 comments

When I did my LLB degree many years ago, we still had to study Latin, which, alas, was not my strong point. Why we had to study Latin (and Roman Law, for that matter), I could never understand. As I pointed out at the time, some of the texts with which we uncritically had to engage were extremely problematic as they referred to slaves – who were usually pouring wine for their masters or stealing the master’s property (talk about cruel stereotyping).

I mean, really, how shockingly bizarre that no lecturer ever pointed out that slavery was evil and why no one thought that we should rather discuss the fact that today a person who practiced slavery would be hauled before the International Criminal Court (which admittedly had not existed back then) for crimes against humanity.

Nevertheless, I did learn a few Latin phrases to impress the boys and to demonstrate to my parents that I was a “real” law student who could invoke obscure Latin phrases when needed. One of these phrases, which came to me as I was reading the judgment of the Eastern Cape High Court in the case of Centre for Social Accountability v The Secretary of Parliament and Others, is: ”Quis custodiet ipsos custodes?” This phrase, Wikipedia now reminds me, is traditionally attributed to the Roman poet Juvenal and comes from his Satires and is literally translated as “Who will guard the guards themselves?”

In our constitutional democracy with its model of separation of powers, we vote for a political party (not for any individual) and members of Parliament are therefore not directly accountable to the voters. Although members of the executive are accountable to Parliament and must give account of themselves to Parliament, our constitution does not provide for a direct way to hold Parliamentarians accountable. They are only accountable indirectly, first to their parties and second to the public at large via the media.

But for this indirect accountability to work, political parties must fear the wrath of the electorate and must act decisively against members of their own party in Parliament when those members break the rules, engage in criminal activity or otherwise dishonour the institution of Parliament. Parliament must also operate in an open and transparent manner so that the media can keep the electorate informed about what members of Parliament get up to – reporting, of course, on both the positive and the negative aspects of the work of members of Parliament.

So, one should laud the Centre for Social Accountability and its lawyers for approaching, first, Parliament and then the court to gain access to further information regarding the so called Travelgate scandal. The Centre specifically sought to gain access to records of Bathong Travel, which later went into liquidation. The liquidators of Bathong instituted action during 2007 against a number (it is not disclosed how many) of members of parliament to recover monies owing by them to the company.

The reason for the Centre’s interest in these records is that it was alleged that the liquidators of Bathong Travel had recovered some R4.79 million from members of Parliament in relation to Bathong. Parliaments’ own “Briefing Document/Fact Sheet” stated that approximately 70 members of Parliament utilized the services of this agency and that there were evidence of complicity by certain members in possible fraudulent acts.

As the judgment wryly observes, there was “a distinctive lack of enthusiasm on the part of parliament to pursue the claims of the liquidators of Bathong against its members”. The court also pointed out that there was “a strong desire, for reasons not known but giving rise to wide speculation, on the part of parliament to prevent those claims from being pursued. It was particularly anxious to protect those claims from public scrutiny in a court of law”.

The Centre invoked the Promotion of Access to Information Act (PAIA) to try and obtain these records which Parliament was so anxious to hide from the public. The Grahamstown Division of the Eastern Cape High Court, in a judgment written by Alkema J, provided a ringing endorsement of openeness and transparency and reminded us that we - the public – are the one’s who should ultimately hold parliamentarians accountable, stating:

The escape from a secretive and closed system of government and the quest for an open, accountable and transparent system of government find expression in inter alia, the right of access to “any” information held by the State. It is now trite that such right must be interpreted to give effect to the new constitutional order of openness, accountability and transparency.

The Court then quoted from two Constitutional Court judgments, first, that of Shabalala and Others v Attorney-General, Transvaal and Another, where Mahomed DP said:

There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is ‘justifiable in an open and democratic society based on freedom and equality’. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.

The second is Brűmmer v Minister for Social Development and Others where Chief Justice Ngcobo held:

The importance of this right … in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.

The salient legal question was, given this constitutional commitment to openness and transparency, whether Parliament was entitled by PAIA to withhold the records because these records contained “personal information” about members of Parliament. Section 34(1) prevents the unreasonable disclosure of personal information.

In a judgment which, although not directly applicable also has resonance for the argument made by Julius Malema that he is a private person and that it is none of our business whether he is corrupt or not, the court noted that it is generally recognized that every person has an untouchable inner sphere of personal life where he or she has the sole autonomy to decide how and where to live his/her life, and where his/her decisions do not adversely affect other people. No interference by law is tolerated with conduct within this sphere, either by the state or by other individuals or institutions. At the heart of this right is the freedom of identity of each individual, enclosed in an area of private intimacy.

However, private information can be revealed where this informationd does not relate to the absolute inner core of a person’s identity. Relying on the pragmatic Constitutional Court jurisprudence on this issue, the High Court noted that there was a two stage test to decide when this could be done. The first part is that the person trying to keep information secret must establish a subjective expectation of privacy. This means that the person must first establish that the nature of the information is covered by the freedom of identity principle – in other words that subjectively viewed it is part of the inner sanctum of the private and personal life of the individual. The second part is that, objectively assessed, society must recognize such expectation as reasonable.

The Court then continued:

The personal life of a member of parliament, his or her personal preferences and beliefs, how he or she choose to live his or her personal life, what they do on vacation in the privacy of their holiday home – even if they travel there on state expense – how they spend their money and how much money they have to spend, all of this is no concern to the state. It is their business; not that of the state. Such information is covered by the principle of freedom of identity. But how they execute their duties as members of parliament; under what circumstances they claim payment in respect of travel vouchers; and whether or not they obey the rules of parliament and act in accordance with the code of conduct which society expects from its members of parliament, all of this is the business of the state.

The state has the right to know, and through the state, the members of society who have elected the members of parliament in an open and democratic society. The information sought is in relation to claims in respect of travel vouchers issued to members of parliament in their official capacities as members of a public body. Such information does not concern their private lives…

The Court therefore ordered the handing over of the requested information within 10 days as it was not reasonable to expect that Parliament could keep secret information that possibly showed malfeasance or even criminal activity on the part of our public representatives.

One assumes that Parliament will appeal this judgment, which is a good thing as this will give the Constitutional Court another opportunity to confirm that the right to privacy cannot be abused by public representatives or politicians to try and escape accountability.

In the end, if members of Parliament are allowed to plead privacy every time we wish to know how they have been spending our money and what they have been up to, we as members of the voting public will not be able to hold these members of Parliament and the parties they belong to properly accountable at the ballot box. And even members of Parliament – our supposed guardians – need to be guarded against with the power of our vote for which so many people have sacrificed.

Why did this happen?

Jul 15th, 2011

by Pierre De Vos.

121 comments

The report by the Public Protector into the attempted leasing of a building by the Police in Durban from Mr Roux Shabangu’s company (the guy who first claimed that he was good friends with President Jacob Zuma before inexplicably claiming that he was not good friends with Zuma), leaves one big question unanswered.

That question is: why?

Why would the Police, who only a few months earlier had indicated that they wanted to have a new building built to house the KwaZulu/Natal headquarters of the Police, now rush to conclude an unlawful lease with Mr Shabangu’s company at tripple the market value? Why would the Police Management ignore the warning by SAPS KZN Head: Property Management, Colonel AT Ngema, not to enage directly with Mr Shabangu? Why would they ignore Ngema’s second warning, which reads in part:

I would like to advise the management to refrain from engaging with the prospective landlords i.e. 477 Smith Street as this will jeopardise the tender processes, create false hope or give unfair advantage to them. I would like to end by committing my support to my management with whatever decisions they take but also ensuring that they are protected from the bad publicity and unnecessary media attention which might be raised by matters like this.

Why – according to documentation reproduced in the Public Protector’s report - did the National Police Commissioner first instruct his underlings not to renew any leases without his approval and then indicate that he had identified the Roux Shabangu Building for leasing? Why did the Police Commissioner deny this – despite the documentary and other evidence which confirmed this fact?

Why was Commissioner Cele so upset when an official in the Public Works Department correctly pointed out that the Police were acting in an unlawful manner by directly negotiating with Mr Shabangu and why was she then removed from her post? Why does the Police Commissioner now maintain that he knew almost nothing about the leases and that he signed documents that were placed before him on advice of others? Is he merely incompetent and reckless about the spending of public funds or is he not being entirely truthful?

Why was Minister Geoff Doidge removed from his position by President Jacob Zuma after he and the Director General launched an investigation into procurement activities of the Department and after he had instructed that the two leases relating to Mr Shabangu be suspended? Why was the new Minister Gwen Mahlangu-Nkabinde so anxious that the leases proceed?

She even obtained a two paragraph “opinion” from the State Law Advisor to contradict the real opinions of several senior advocates in order to ensure that the leases are concluded. Was the reason for this that, as Mr Shabangu reportedly claimed, she was like Mr Shabangu’s “elder sister”? Is it true that Mr Shabangu stormed into the Director General’s Office and threatened him and if so, why did the Minister not do anything about this?

Why did Minister Mahlangu-Nkabinde not co-operate fully with the Public Protector and why did she refuse to answer some of the questions pertaining to these leases put to her by the Public Protector? What did she have to hide and was she hiding something on someone else’s behalf? Why did the Minister meet with Mr Shabangu on several occassions and why did they have frequent contact on the phone? Given the fact that her predecessor was fired, was she not afraid that President Zuma would fire her and if not, why would she believe that the President would protect her?

The Public Protector’s report found that the Police Commissioner and the Minister had acted unlawfully and were guilty of maladministration. But because the “why” question had not been answered, it found that it could not say for certain that any criminal activity took place. Once we know why this all happened, we would also know whether anyone should be prosecuted for corruption.

The behaviour of the various role players is very difficult to explain in the absence of corruption of some sort. No one has been able to explain why the rules were broken so flagrantly and with such vehemence. If there were no inappropriate relationship between Mr Shabangu and some role players (the Commissioner, the Minister, the President or the ANC), the whole saga makes no sense whatsoever.

Such an inappropriate relationship could have come about because of payment of money, the provision of other favours or because of another kind of inappropriate personal relationship between any number of the parties. At this point we therefore do not know whether Mr Shabangu corrupted anyone and if he did, who was corrupted. Usually, the Police would be able to follow up on such serious questions by investigating the links between the parties and where prima facie evidence of corruption is procured by getting search warrants to search the relevant premises associated with the relevant role players (Mr Shabangu, Mr Cele, Ms Mahlangu-Nkabinde, Mr Zuma, the ANC) in order to determine whether money had changed hands.

But as the Police themselves are implicated in this scandal, this will not happen. As the Constitutional Court found in the Glennister case, the Hawks, who reports directly to the Police Commissioner, is not independent enough to conduct such an investigation. In the absence of the Scorpions or a similarly independent body, no proper criminal investigation will be conducted. The situation which has now arisen therefore vindicates the majority judgment in the Glennister case and underlines, again, the urgent need for the creation of a truly independent corruption fighting unit.

But when such a unit is finally set up, it will probably be too late to investigate the allegations of corruption linked to the Police leasing scandal. And who knows how many billions of Rand would have been lost to other forms of corruption by the time this happens?

President Zuma and the separation of powers

Jul 11th, 2011

by Pierre De Vos.

26 comments

The remarks made on Friday by President Jacob Zuma in front of an audience of judges at the Access to Justice conference in Johannesburg, has elicited much comment. Given the manner in which President Zuma became President after corruption charges were inexplicably dropped against him, his appointment of the tainted Menzi Simelane as National Director of Public Prosecutions and the utterances by some of his supporters about so called “counter-revolutionary judges” - made in the period when Zuma was being pursued on corruption charges - it is perhaps understandable that not everyone would trust President Zuma’s bona fides on the issue of an independent judiciary and the supremacy of the Constitution.

However, it is important to keep a clear head and not to overreact to what the President has said. In South Africa we have a tendency to interpret statements according to the preconceived template constructed by our fears, suspicions and prejudices – and often do not properly hear and understand what a political opponent might have said. At the same time this is a pivotal issue for our democracy and it is therefore important to look at the words of the President carefully to see whether it makes sense and whether it can be squared with our system of separation of powers and constitutional supremacy.

President Zuma - quite correctly, in my view - stated that one must distinguish the areas of responsibility between the judiciary and the elected branches of government. Although our courts have often said that there is no bright line boundary between the three branches of government and that it is not always easy to distinguish between the work done by the three branches, it has always maintained that some aspects of decision making is more appropriately left to the non-judicial branches of government. There is therefore no disagreement between the judiciary and the President on this point.

President Zuma then continued:

The Executive, as elected officials, has the sole discretion to decide policies for Government. This means that once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government.

Although this statement is not a model of clarity and can be interpreted as meaning that judges cannot issue orders that would affect the ability of government to make the policies it sees fit, I take it to mean that the executive – rather than the judiciary – is the appropriate branch to formulate policy which can then be tested by the courts for constitutional compliance. If one assumes that the President accepts that government policies can be declared unconstitutional and that Courts can tell the executive that some policy choices are constitutionally invalid, then this view seems correct.

Courts cannot formulate policy, but of course, judicial decisions will often affect the policy choices a government is required to make. The decision in the Cape High Court in the Makhaza toilet’s saga is a case in point. As the court had found that providing open toilets to residents of Makhaza infringed on their rights, this radically circumscribed the policy choices on sanitation open to the City of Cape Town. As our Constitution empowers courts to make orders that will vindicate the rights of ordinary citizens, in principle there is nothing wrong with this course of action,

This was made clear in the Treatment Action Campaign case where the government’s lawyers – perhaps under pressure from the tea-guzzling, garlic and beetroot-eating, Minister of Health – argued that even where a court finds that government policies fall short of what the Constitution requires, the only competent order that a court can make is to issue a declaration of rights to that effect. That leaves government free to pay heed to the declaration made and to adapt its policies in so far as this may be necessary to bring them into conformity with the court’s judgment.

This, so the argument went, is what the doctrine of separation of powers demands. Government lawyers contended that under the separation of powers doctrine the making of policy is the prerogative of the executive and not the courts, and that courts cannot make orders that have the effect of requiring the executive to pursue a particular policy.

In the TAC case the Constitutional Court rejected the argument that it could not make orders that would have policy implications for the government. The Court stated as follows:

This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.

Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself. There is also no merit in the argument advanced on behalf of government that a distinction should be drawn between declaratory and mandatory orders against government. Even simple declaratory orders against government or organs of state can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so.

Especially in social and economic rights cases courts will be required to evaluate state policy and to give judgment on whether or not it is consistent with the Constitution. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant “appropriate relief” that are – in the wording of section 172(1)(a) – “just and equitable”. As the Court stated in the TAC case:

We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.

The President’s argument about policy formulation being left to the executive may therefore be seen as a bit naive and simplistic as it may be read as assuming that court judgments must never impact on government policy formulation. In a constitutional state that would be impossible. However, one could also interpret the passage generously, in which case the President can be assumed to have said nothing more than that the executive will always have the final say on what policy to formulate and implement – as long as the policy complies with the Constitution as interpreted by the judiciary.

What was perhaps more worrying is that the speech may be read as indicating that President Zuma resents the fact that all executive action is subject to the discipline of the Constitution and that in a constitutional democracy with a supreme Constitution the executive is not free to act as it sees fit and to adopt the policies of its choice as it sees fit and implement those policies as it sees fit. He also seems to suggest that when political opponents raise constitutional issues to score political points and/or approach a court to vindicate the constitutional rights of ordinary citizens or to uphold the Rule of Law and the Constitution, a court should not entertain such questions. This is clearly wrong.

President Zuma stated that the executive “must be allowed to conduct its administration and policy making work as freely as it possibly can” and then continued:

The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections. Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms.

The problem with this statement is that it – wrongly – assumes that one can always make a distinction between “political disputes” on the one hand and constitutional questions on the other. Often, opposition parties or civil society groups will challenge the constitutionality of a legal provision or of action by the executive or an organ of state and they have every right to do so. Often such challenges will deal with issues that are highly political but that may also raise constitutional questions. The mere fact that unconstitutional action by the executive is criticised by opposition parties who – as is their right – might exploit this alleged unconstitutional action for political gain in order to show up the government of the day, does not preclude any court from declaring such action unconstitutional.

Political disputes and constitutional disputes often overlap: Is the provision on which the President relied to extend the term of office of the Chief Justice constitutionally valid? Did the Judicial Service Commission act lawfully when it decided not to investigate the complaint agianst Judge President John Hlophe? Is a municipality entitled to evict poor people from buildings in the inner city of Johannesbsurg as part of a programme of gentrification? Can the President fire the head of the intelligence service? Can Parliament pass a law to force “coloured” workers to move to provinces where they are not in “oversupply”. Is the policy on forcibly installing pre-paid electricity meters in poor, black, areas of Johannesburg constitutionally valid? All these questions are BOTH political (in the sense that it deals with governance issues) AND constitutional in nature.

Our courts have a right and a duty to declare action or inaction by the government or organs of state unconstitutional if it does not comply with the Constitution. It is irrelevant whether the case happens to have been brought to the court by a political party or whether the issue raised before the court is politically charged. What a court has to do is to declare invalid unconstitutional behaviour – no matter whether that unconstitutional behaviour had been endorsed by 2400 delegates at an ANC conference at Polokwane, or by 12 million voters during a general election. This is what it means to live in a constitutional democracy. The sooner everyone gets used to this, the better.

Where a court declares the actions or failure to act on the part of the executive to be unconstitutional, the court is not helping opposition parties or civil society to co-govern the country. The court is merely upholding the Constitution. The executive can prevent political opponents from politically embarrassing the governing party and the executive, by making sure that its actions always comply with what is required by the Constitution. Of course, for that to happen the executive would need good legal advice, which I fear, is often not provided. But maybe that is an issue for another day.

Courts have a pivotal role to play in upholding the Constitution. When they do this, they help to protect everyone – including the poor, marginalised and vulnerable – from abuse of power by venal, tardy, overwhelmed or heartless government officials. They also help to hold the executive to account and to protect our democracy in the name of the people. Just like the other two branches of government, a properly functioning judiciary must therefore also be seen as representing the interests of the people and when one talks about the separation of powers one should be careful not to suggest that the judiciary has less legitimacy merely because its judges were not directly elected by about 35% of the citizens who bothered to vote for the majority party at the last election.

Who will believe this?

Jul 6th, 2011

by Pierre De Vos.

65 comments

I am constantly reminded of the obvious fact that we live in a strange world inhabited by many wonderfully gullible people. I mean, some people actually believed Tony Bliar when he claimed Saddam Hussein was going to bomb the bejeezus out of Britain, while others believe that Julius Malema is a champion of the poor who just happens to be able to afford a R250 000 watch on his R40 000 a month salary and do not believe that he is a greedy tenderpreneur masquerading as a champion of the poor .

I would therefore be the last person to jump the gun by claiming that there is no one who would believe claims by the Police that they are not targeting Public Protector Thuli Madonsela in order to protect their boss, Police Commissioner Bheki Cele. (Such claims by the Police are yet to be made, but surely highly likely to follow in the media spin war that has now been unleashed by a story in The Star that Public Protector Thuli Madonsela – pictured – is about to be arrested by the Police.)

Who knows, the whole story might be false and Madonsela might not have been investigated by the Police at all. In a life and death war for tenders and political power, truth is usually the first casualty and the media is often used to send strategic disinformation into the world to discredit or intimidate an opponent. Police might have leaked a false story to the media in order to discredit and intimidate the Public Protector. But, if this story is true, it will say much about the state of our Police Service and about the honesty of our top cop.

Maybe there is someone somewhere in the world who would believe that the Police “were only doing their job” when allegedly investigating Public Protector, Thuli Madonsela, for fraud and corruption. Perhaps someone living in a rainforest in Sumatra; or one of Father Christmas’s little helpers living at the North Pole; or (there is no accounting for the heights of gullibility that some otherwise perfectly intelligent human beings are capable of) someone who believes convicted fraudster Schabir Shaik is an honest businessman who was framed by apartheid agents, will believe that there is no link between the Public Protector’s damning report of the Police Commissioner and this alleged investigation or the claim that such an investigation is underway (whether true or false).

Such a real or fictitious person (of whom a few might or might not be close to President Jacob Zuma) might well believe that the Police just happened to come across information suggesting that the Public Protector is corrupt, that it was just a co-incidence that the Minister of Justice was tasked by the cabinet to deal with the fallout from the Public Protector’s report (and also dealt with the original query about Madonsela’s company), and that the Police are treating this case like they would treat any other case of alleged corruption against senior officials who may or may not be members of the ANC and may or may not be friends of President Jacob Zuma.

Such a real or fictitious person may also believe claims – emanating from secret leaks, on the record briefings and off the record briefings - that Police Commissioner Bheki Cele had been reluctant to pursue this investigation against the Public Protector, that “rogue elements” within the Police investigated this case on their own and that the investigation had absolutely nothing to do with the fact that Madonsela has already condemned the dodgy deal between businessman Roux Shabangu and the Police and has found that the Police Commissioner was guilty of maladministration and unlawful behaviour because of his actions relating to these Shabangu leases.

A few more people might well believe that this has absolutely nothing to do with speculation (which may be true or false) that Roux Shabangu - who first claimed that he was a good friend of President Zuma before he claimed that he was not a friend of Zuma at all – has donated money to the governing party, to the President or to those close to the President.

Few of us won’t jump to conclusions by assuming that Madonsela has been targeted by the Police in order to protect Police Commissioner Bheki Cele – who has been exposed as a rather questionable character by the first Public Protector’s report into the Shabangu lease scandal - and to discredit Madonsela in an attempt to intimidate her into not doing her job as diligently and as properly as she is legally and constitutionally required to do.

Those of us who jump to conclusions may, of course, be wrong. But I will not bet on it.

Now, it is far too early to tell whether Madonsela broke the law or not. It might be that Madonsela – like thousands of civil servants, many police officers and quite a few politicians – have been on the take and that the Police have gathered sufficient evidence that will prove beyond reasonable doubt that Madonsela is guilty of fraud and corruption. Of course, if she is ever convicted it would be something of a miracle – given the fact that so few cases of corruption are ever investigated properly and ever lead to a successful conviction.

According to newspaper reports, Madonsela allegedly received money for work done for the Ministry of Justice by a company she owns while she was a Commissioner at the Law Reform Commission. The work allegedly related to the transformation of the judiciary, gender mainstreaming and the legal service charter. According to news reports the imminent arrest will be based on allegations that Madonsela contravened section 17 of the Prevention and Combating of Corrupt Activities Act 12 of 2004. At the time Madonsela worked at the Law Reform Commission, the Department of Justice (headed now by Jeff Radebe) looked into this arrangement, but the matter was never pursued – until Madonsela took on the Police Chief.

What a co-incidence, the gullible might exclaim.

Section 17 of the Act states that a public officer who – subject to certain exceptions - ”acquires or holds a private interest in any contract, agreement or investment emanating from or connected with the public body in which he or she is employed or is made on account of that public body, is guilty of an offence”. No crime is committed if:

the public officer acquires or holds such interest as a shareholder of a listed company;
where a public officer’s conditions of employment do not prohibit him or her from acquiring or holding such interest; or
in the case of a tender process, a public officer acquires a contract, agreement or investment through a tender process and that offiocer’s conditions of employment do not prohibit him or her from acquiring or holding such interest and who acquire or hold such such interest through an independent tender process.

It is therefore clear that Madonsela would only ever be found guilty of corruption if her company did work for the Law Reform Commission or did work emanating from the Law Reform Commission and if her conditions of employment explicitly prohibited her from having an interest in a company that did work for the Law Reform Commission. One never knows what might have happened, but given what we know about the history of this matter and the political background against which this story was published, I would be quite surprised if she is ever convicted of any crime.

It would be strange indeed if her company had done work for the Law Reform Commission, this was prohibited by her conditions of employment, but yet the Department of Justice had done nothing about it. If Madonsela is guilty of corruption then officials in the Department of Justice and maybe the Minister himself must be guilty of concealing corruption. If Madonsela’s claim is true that the Department of Justice and Treasury were both aware of her business interests and that there was full disclosure throughout, then a conviction seems even more unlikely as it would implicate the Ministers of Justice and Finance as well.

This matter can of course easily be cleared up by colleagues at the Law Reform Commission and by the Minister of Justice, who would be able to say whether Madonsela’s company ever did work for the Law Reform Commission and if it did, whether she had express or tacit permission for this. I am sure that as someone who respects the Constitution and honours the office of the Public Protector, the Minister of Justice is rushing to issue a statement to clarify this matter as I type this. Failure promptly to issue such a statement might well lead those of us who are not gullible to suspect that the Minister is in cahoots with the Police and is trying to intimidate and discredit the Public Protector.

“Truth and deceit know no status or occupation”

Jun 1st, 2011

by Pierre De Vos.

39 comments

The alleged “investigation” and subsequent report by the then Public Protector, Lawrence Mushwana, into the Oilgate scandal lambasted the Mail & Guardian newspaper, contending that the newspaper’s reports on the scandal was “factually incorrect, based on incomplete information and documentation, and comprised unsubstantiated suggestions and and unjustified speculations”. Today a full bench of five judges of the Supreme Court of Appeal (SCA) confirmed that there was in essence no investigation by the Public Protector at all and that the report was no more than a whitewash.

In a damning judgment – which places a question mark over Adv Mushwana’s fitness to hold office as head of the South African Human Rights Commission – the SCA confirmed that the Public Protector “had no basis for discrediting the newspaper as he did”. In the process, the SCA provided clarity on the legal required manner in which the Public Protector had to investigate serious allegations of malfeasance and corruption. The judgement emphasises the importance of the role of the Public Protector in safeguarding our democracy and strengthens its hand in dealing with future investigations.

Although the judgement comes as a stunning loss for Muswhana, it must be viewed as a victory for the institution of the Public Protector.

The SCA judgement reminds us that – when investigating a complaint – the Public Protector must do more than merely adjudicating on verified information placed before it by others. The Public Protector is an investigator who, either on own innitiative or because it received a complaint, has a pro-active function to get to the bottom of allegations of maladministration or corruption. “He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.”

As the SCA judgement so eloquently stated today:

The Public Protector must not only discover the truth but must also inspire confidence that the truth has been discovered. It is no less important for the public to be assured that there has been no malfeasance or impropriety in public life, if there has not been, as it is for malfeasance and impropriety to be exposed where it exists. There is no justification for saying to the public that it must simply accept that there has not been conduct of that kind only because evidence has not been advanced that proves the contrary. Before the Public Protector assures the public that there has not been such conduct he or she must be sure that it has not occurred. And if corroboration is required before he or she can be sure then corroboration must necessarily be found. The function of the Public Protector is as much about public confidence that the truth has been discovered as it is about discovering the truth.

When investigating any allegations levelled at state officials, politicians or public bodies, the Public Protector has to conduct such an investigation with an open mind, which is “universal and indispensable to an investigation of any kind”. That is the benchmark against which the SCA assessed the investigation in the Oilgate case.

That state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on. But whatever the state of mind that is finally reached, it must always start out as one that is open and enquiring.

Today the SCA found that the Public Protector had not conducted the Oilgate investigation with an open mind. He had, in effect, acted as a spokesperson for those who he was called upon to investigate, merely stating as fact the claims made by the various bodies and individuals under investigation without testing the veracity of these claims in any way. This he did because he assumed that persons in high office are always persons of integrity whose version of events must be believed. The SCA found that this attitude was inappropriate.

Truth and deceit know no status or occupation. One expects integrity from high office but experience shows that at times it is not there. And while experience shows that journalists can be cavalier there are times when they are not. It is the material that determines the veracity of the speaker and not the other way round, and that applies universally across status and occupation. It is the hallmark of this investigation that responses were sought from people in high office and recited without question as if they were fact. An investigation that is conducted in that state of mind might just as well not be conducted at all. The investigator is then no more than a spokesman, who adds his or her imprimatur to what has been said, which is all that really occurred in this case. I have said before that an investigation calls for an open and enquiring mind. There is no evidence of that state of mind in this investigation.

The Mail & Guardian has now been vindicated – at least to the extent that the Public Protector’s criticism of the newspaper was unfounded. One would think that Adv Mushwana, as well as the politicians who lambasted the newspaper after the whitewash report was made public, owe the newspaper an apology. Although is is highly unlikely that the newspaper’s detractors will apologise, it is worth noting that serious allegations were levelled at the newspaper at the time.

As the SCA judgement notes, Hansard’s report of proceedings in the National Assembly when the report was tabled records one member of Parliament asking of an opposing political party, on the basis of that finding, and to applause, what kind of party it was that relied upon newspaper reports of the Mail & Guardian for its political interventions. Another described the Mail & Guardian as “the choirmaster in the chorus of unsubstantiated allegations”. Yet another said that the report should “caution us to be ready for what we read in the papers and the credibility of relying on such material as [being] accurate and dependable”.

I hold no brief for the newspaper. Newspapers do make mistakes and if they do, they can be sued for defamation or taken to the Press Ombud. But in these days when the printed media is being used by some as a scapegoat to avert attention from the governance problems of the governing party or from serious allegations of corruption by politicians, one may do well to remember that one should not easily assume that allegations printed in the media forms part of a bourgeois or racist plot to discredit the National Democratic Revolution.

In short, what is required – for the media, the public, the politicians and the Public Protector – is to keep an open mind until the truth has been discovered. The Public Protector – using the guidelines developed by the SCA – is well-placed to discover that truth. Let us hope that the new Public Protector will continue the work she has been doing lately and will not shrink from her constitutionally mandated task. Our democracy deserves no less.

Governance

Secrecy Bill less about media freedom, more about national security state

Why are soldiers patrolling the streets of Cape Town?

About the lying Minister and the dithering President

Why provinces have little real power but huge responsibilities

Who will guard the guardians?

Why did this happen?

President Zuma and the separation of powers

Who will believe this?

“Truth and deceit know no status or occupation”

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