Constitutional Hill

Governance

Let me tell you a secret…..

May 31st, 2011
by Pierre De Vos.
69 comments

It is much harder to govern an open and democratic society with a free and critical media and an informed citizenry than to govern a secretive, authoritarian state in which cock-ups and corruption by the government and its officials, police brutality and torture of citizens and the looting of state funds by the politically connected business elite can be hidden from the public at large.

In an open and democratic state, information about malfeasance and corruption is often leaked to the media and those responsible for the wrongdoing are exposed as the thieving, lying, brutal crooks they often turn out to be. In a democratic state politicians have to keep one eye on public opinion and have to consult citizens who might oppose the grandiose or corrupt schemes concocted in the name of economic development and progress.

This emphasis on openness, transparency and accountability can be inconvenient and time-consuming and can thwart the bureaucratic plans of state apparatchiks who have decided what people need and how their needs have to be satisfied. Providing citizens with access to information can also be “dangerous” as it can lead those citizens to change their political party preferences and can lead them to vote for another party to form a government – even before Jesus returns to earth.

Just ask the unspeakable Tony Blair, whose career gratifyingly came to an end after his craven and dishonest defence of the illegal invasion of Iraq (on the basis that it was required to protect the national security of the United Kingdom), was comprehensively exposed as a pack of lies - leading to a complete collapse of his credibility.

No wonder the ANC government is hell-bent on passing a draconian Secrecy Bill into law. Although a new version of the Bill – currently being debated by an ad hoc committee of Parliament – is an improvement on the previous version, it remains a truly scary piece of legislation. It is an improvement in much the same way as Prime Minister BJ Vorster was an improvement over Hendrik Verwoerd.

Here is why.

The Bill as it is currently formulated applies to all organs of state. Such organs of state will be required to consider whether any of the documents under its control should be classified as “confidential”, “secret” or “top secret”. Unless the Minister of State Security decides to grant an exemption to an organ of state, the body will be bound by this Act and will be REQUIRED to review all documents to decide whether they should be classified or not. The Minister has the final say on whether to grant an exemption and if he decides not to exempt an organ of state there is no appeal available to challenge his decision. This is the same minister whose wife has been convicted of drug trafficking and who has not resigned or provided any explanation or denial of his own knowledge of, or complicity in, the criminality of his wife.

Thus, a national security state is brought into existence.

The organs of state include (and I am providing a random selection from a list prepared by Idasa of more than 1000 such organs):

the University of Cape Town, the Johannesburg Fresh Produce Market, the Polokwane Housing Association, the Public Protector, the Human Rights Commission, the Medical Research Council of South Africa, the National Gambling Board, the National Lotteries Board, the National Nuclear Regulator, South African Library for the Blind, William Humphreys Art Gallery, the Bushbuckridge Water Board, the Eastern Cape Liquor Board, Blue IQ Investment Holdings (Pty) Ltd, the Natal Sharks Board, Limpopo Roads Agency, Bela-Bela Local Municipality, Ikwezi Local Municipality and Xhariep District Municipality.

The absurdly broad provisions of the Bill which would have required the classification of documents in the “national interest” have been replaced by new provisions which, while not as patently draconian as the first draft, still allow ample opportunity for organs of state to hide important information from the public. Much of this information will be the kind of information that ordinary citizens would need to be aware of if they wished to be active and democratically responsible citizens, empowered to make informed choices about their political actions, values and beliefs. (Maybe Lead SA could do something worthwhile for a change and could launch a campaign against this Bill aimed at keeping citizens passive and ignorant.)

Thus section 15 of the Bill requires classification (and hence secrecy) of the following kinds of information.

  • Sensitive information which is likely or could reasonably be expected to cause demonstrable harm to the security or national security of the Republic or could prejudice the Republic’s international relations must be classified as confidential.
  • Sensitive information which may endanger the security or national security of the Republic or could jeopardise the Republic’s international relations must be classified as secret.
  • Sensitive information which may cause serious or irreparable harm to the security or national security of the Republic or may cause other states to sever diplomatic relations with the Republic must be classified as top secret.

It is important to note that national security is defined in extraordinarily broad - I would argue even authoritarian - terms. The definition is not compatible with an open and democratic society based on human dignity, equality and freedom and deals with far more than the real concerns about the security of the state. (On the other hand, it is compatible with a national security or Stalinist state, I guess.)

“National security” is defined by the Bill as “the resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”. This includes “protection of the people and occupants of the Republic from hostile acts of foreign intervention, terrorist and related activities, espionage, and violence whether directed from, or committed within the Republic or not, and includes the carrying out of the Republic’s responsibilities to any foreign country”.

In other words, according to this Bill, the protection of national security extends far beyond the protection of the state against internal and external security threats. Issues of inequality, “peace and harmony” (which sounds like something a Miss World would aspire to achieve during her reign and could mean almost anything), and economic development are all incorporated into the definition of national security.

This suggests that any information, which – if it becomes known - is likely to disturb good relations between different communities or within a community, is likely to affect the ability of the state to achieve social and economic equality or hamper economic development, and any information that might upset a foreign government would have to be classified as confidential, secret or top secret.

Such information might well include reports about service delivery failures or plans to implement new employment rules for the civil service to address the “oversupply of coloureds” in the Western Cape, reports of Universities on race-based admissions policies, reports on land redistribution, reports about the state of electricity supply, reports on contaminated water supplies, reports on a crumbling road infrastructure or plans to impose road toll tariffs, reports on the sale of weapons to other countries or reports about South Africa’s involvement in negotiations about the crisis in Zimbabwe or Libya.

The current wording of the Bill is also extremely confusing and in places seem to be contradictory as it requires quite draconian classification of documents overseen by the Minister of State Security while also purporting to provide “safeguards” to prevent the “over-classification” of documents. These safeguards are included in section 17, which states that “secrecy exists to protect the national security” (itself a rather ominous and authoritarian sounding statement).

However, section 17 then proceeds to state that classification may not be used to conceal an unlawful act or omission, incompetence, inefficiency, or administrative error; restrict access to information in order to limit scrutiny and thereby avoid criticism; prevent embarrassment to a person, organisation, or organ of state or agency; unlawfully restrain or lessen competition; or prevent, delay or obstruct the release of information that does not require protection under the Act.

It is difficult to see how the heads of many of the more than 1000 organs of state authorised to classify documents will not focus on the former provisions that demand classification of the most anodyne documents in the name of a laughably broad definition of national security while ignoring the latter safeguards. As there seems to be a great deal of tension between the demand in the Bill to keep secrets of the most trivial kind and the provisions which purport to instruct classification only when it is absolutely necessary, many officials will surely err on the side of secrecy (because governments like to hide things from the public because they intuitively know that it is in their interest to hide the truth) and the “safeguards” are likely to safeguard very little.

Because officials will be called upon to make decisions about what is secret and what not, because governments all over the world almost universally wish to hide rather than illuminate information, and because governments often end up believing that their own political survival should be equated with the survival of the state itself, this Bill – when passed – will provide officials and politicians with the cover they need to turn our country into a secretive security state.

Section 23 also allows a person to request a head of an organ of state to declassify information in furtherance of a “genuine research interest or legitimate public interest”. If the request is denied one can appeal the decision to the Minister of State Security, the very politician whose job it is to keep secrets and who is tasked by the President to keep as many secrets as he possibly can (also, it seems, secrets about whether he knew anything about his wife’s drug trafficking).

But it is unclear who will ever be brave enough to lodge such an application, which will mostly be futile in any case. This is because section 18 of the Bill states that a person who is in possession of a classified record knowing that such record has been unlawfully communicated, delivered or made available, must report such possession and return such record to a member of the South African Police Service or the Agency. If a person fails to comply, that person is guilty of a crime and must be sentenced to a minimum three year prison sentence.

This means that if a brave or foolhardy state official leaks classified information that exposes corruption or important information about the workings of the government to a journalist, that journalist must inform the police immediately. The police will, of course, want to know from whom the journalist had obtained the information. This will expose journalists to severe pressure to reveal their sources, something they are ethically required not to do.

The journalist will also have to hand the documents back to the police and will then have to ask the very head of the organ of state and then the Minister of State Security (who might very well have been implicated by the documents) to declassify the documents. If the journalist decides not to hand back the document, but asks for its declassification, the police will most likely come swooping on that journalist or the newspaper the journalist works for (as it swooped on the Public Protector), because one can only ask for the declassification of a document if one knows about its existence and if one knows about its existence one will be assumed to be in possession of it.

Of course, a request to declassify documents might also be met by a claim that the documents do not exist. It would often be impossible to refute such claims because a journalist would have to admit that he or she is committing a crime and is in possession of the said documents in order to challenge the claim that the documents do not exist.

The journalist can of course hand back the documents and then ask for them to be declassified. But if such a request and subsequent appeal to the Minister of Secrets is turned down – as it is likely to be done – then the journalists would only be able to obtain the documents again if his or her newspaper has a few million Rand to challenge the decision all the way to the Constitutional Court.

The effect of this Bill will be to further limit access of citizens to the kind of information they need to exercise their democratic choices as responsible citizens. It is a draconian piece of legislation based on the Orwellian assumption that secrecy is the bedrock of democracy. It will encourage officials to think about information as something not to be shared with the public; something to which the public is not entitled to have access to; as something threatening that might very well have to be kept secret to protect the state from instability and preserve harmony and peace and friendship until the end of time, amen.

Why the good people in the ANC is remaining quiet while their colleagues plot to turn South Africa into a secretive security state is beyond me. Every person of conscience who belongs to the ANC and serves in a leadership position in the ANC has a duty to speak out against this Bill. Those good people in the ANC who fail to speak out will surely not be able to look themselves in the mirror ever again. This is not a trivial issue on which one can remain tactically silent. Either one speaks out, or one reveals oneself to be a unprincipled, undemocratic or cowardly supporter of censorship or even authoritarianism.

SAPS becoming a threat to our democracy?

Apr 14th, 2011
by Pierre De Vos.
110 comments

The shock and outrage which have followed the brutal assault and killing of Andries Tatane by the South African Police Service during a service delivery protest at Setsoto, in Ficksburg, eastern Free State, yesterday is surprising, to say the least. Perhaps because this incident of police brutality was caught on camera and broadcast on SABC TV news, people are suddenly claiming to be shocked by something that happens every day. Almost a thousand people are now killed every year due to police action, but this hardly makes the news anymore.

Unless the police shoots and kills a blond girl from Houghton or a foreign tourist from Europe, one is not likely to hear about it at all.

We all know that most police officers are badly trained, that quite a few of its members are corrupt (including the former Police Commissioner) and that some police officers assault, torture and sometimes kill innocent civilians. We all know that if one happens to be a foreigner from elsewhere in Africa, if one is poor and black and not well-connected, if one is a member of a social movement involved in protest action, or if one gets in the way of the VIP blue light brigade, members of the SAPS is highly unlikely to treat you in a way that is consistent with the law and the Constitution.

Many people living in South Africa have reason to fear the SAPS and not to view it as a police service whose members serve and protect the community, but rather as a police force whose member enforce their will on others and are at war with the very community they are supposed to serve. It often seems as if some members of the SAPS either do not know the law or wilfully ignore it and that the victims of this lawlessness are not only criminals but ordinary civilians who happen to get in the way. If one happens to be in the wrong place at the wrong time — like Andries Tatane – one might very well be humiliated, maimed or killed for no good reason at all.

Often police officers use extreme force and humiliate and assault innocent civilians because they feel humiliated and scared and see this as the only way to retaliate. They see civilians like Andries Tatane as easy target on which to take out their frustration which festers because of the humiliation, fear and confusion they experience because they are ill equipped and badly trained to protect themselves and members of the community against dangerous criminals and are often unable to solve the many serious crimes that occur every day.

We also know that the problem is getting worse. Since politicians and members of the police leadership started talking about the need for the police to shoot and kill people who they happen to think might be criminal suspects, the number of civilians killed by the police has risen steadily to numbers last seen during the apartheid era. Cabinet recently approved draft legislation which would make it even easier for police officers to shoot and kill civilians first and then to ask whether this was a good idea or not.

Legal claims paid out by police for 11 months of last year showed an increase of about 30% over the claims paid out in the 2009-10 fiscal year. When Congress of the People MP Leonard Ramatlakane asked the minister Nathi Mthethwa what the cost of litigation against the South African Police Service was in the past two years and what charges against officers were involved, Mr Mthethwa said:

An amount of R87,2m was paid during 2009-10 financial year as far as claims for compensation are concerned, and an amount of R115,9m has been paid during the current financial year as on February 28 2010. The claims involve the following types of compensation: false arrests, assaults and shootings, collision damages to vehicles, damage to property and other issues such as crimen injuria.

If the proposed amendments to section 49 of the Criminal Procedure Act – which would clearly be unconstitutional — is passed by Parliament later this year, these numbers might go down, but this will not be because the police will shoot and kill less civilians but rather because the law will then justify even more extreme forms of extra-judicial killing of our people by trigger happy members of the police force.

Section 119(5) of the Constitution states that the security services — which includes the SAPS – “must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic”. What happened yesterday was not in accordance with our Constitution or the law, nor with international law. It is unclear whether the action by the police officers yesterday would have been lawful had they acted in terms of the proposed amendments to section 49 of the Criminal Procedure Act.

When Dr PAJ Waddington was asked to investigate the Boipatong massacre which occurred in the early nineties, he concluded in a wide-ranging report that the apartheid police had a confessional style of policing (in other words, the police arrested suspects and then tortured them until they had extracted confessions from them). The Waddington Report found the apartheid police to be “woefully inadequate” and “incompetent”, and suggestive of “an unaccountable police force.” Complicity aside, the nature of security force behaviour at an official level frequently confirms an active promotion of destabilisation and violence beyond the “legal limits”, the report found.

In the heady days after the fall of apartheid there was much talk about transforming the police force at war with the population into a police service, working with communities to prevent and solve crime. But the Zuma administration, in another populist turn to the right, decided to embrace quick-fix solutions to the crime problem by remilitarising the police and by encouraging police officers to shoot and kill civilians and to show them who was the boss by acting like bullies. This is increasingly turning the police away from a service that has to help safeguard our democracy into a force that threatens the very existence of our democracy.

Where the police becomes a law unto itself, where it sees itself as at war with the community, where it is politicised and sees its task a protecting the leaders of a specific faction of the governing party (as the apartheid era police did), then the police becomes a threat to democracy. Instead of working in partnership with communities to solve crimes, they take sides and see any kind of political protest as illegitimate and as part of a plot to overthrow the government. When that happens the police stops being an institution in service of democracy and starts being an institution in service of itself and of that faction it serves.

The Good Book leads the way, Halleluja!

Apr 12th, 2011
by Pierre De Vos.
94 comments

The Ministerial Handbook is a wonderful document, the Good Book of modern day South African politics. Forget about the Constitution or “irrelevant” legislation dealing with Minister’s Portfolio’s: the first thing some Ministers seem to do when they get appointed is to study the Good Book to justify their lavish lifestyles – funded by every single South African who has ever bought anything at a shop and paid VAT on that product.  What the Bible is to the average Priest, the Ministerial Handbook is to many a Minister – a guiding light and a moral compass in a time of darkness and despair.

Halleluja and amen!

Pity some of our Ministers who justify their splurges with reference to the Ministerial Handbook do not understand its contents. Either that or they are deliberately trying to mislead the public by claiming that the Good Book actually sanctions their millionaire lifestyles when it does nothing of the sort. The Good Book is – on closer inspection – a rather Calvinist document. Pity  so many  Ministers do not seem to be great fans of frugality, temperance and moderation – all values promoted by the Calvinists.

Take Minister of Co-operative Governance and Traditional Affairs Sicelo Shiceka, who is reported to have lived it up after being appointed by President Jacob Zuma (who seems to be having some real bad luck with his appointments, poor guy). Shiceka is alleged to have spent the following amounts after becoming Minister:

  • R335000 flying first class with his personal assistant and staying in a five-star hotel to visit his girlfriend in prison in Switzerland. Asked what the purpose of the official visit was, Shiceka claimed he had gone to “benefit from the Swiss experience of hosting the World Cup” – which the country did in 1954. Switzerland co-hosted Euro 2008, which ended on June 29, long before Shiceka’s visit.
  • Another R32000 to hire a chauffeur-driven limo for the prison visit;
  • R640 000 in one year for Shiceka and a handful of staff to stay at the One & Only – of which, he admits, R280 000 was spent on him alone;
  • R55793 for a one-night stay at the One & Only during President Jacob Zuma’s first State of the Nation address, justifying taking a sangoma with him by saying the man was his “father figure”; and
  • More than R160000 in eight months flying 10 family members – including his estranged wife and current girlfriend – around the country at taxpayers’ expense.

The Minister is contesting some of these allegations (although his story seems a bit confusing), claiming that the evidence has been fabricated. Yet he has admitted that he had gone to Switzerland and to racking up a bill of R280 000 for his own accommodation at the One & Only in just one year, and to putting up at the same hotel a man he describes as his “father figure”, as well as his wife, justifying this expense by claiming that it is a perk that the Ministerial Handbook allows for it.

Oh, beloved brothers and sisters, let us turn to the Good Book for guidance in these dark times. Brothers and sisters, the Good book is remarkably clear on foreign travel and, let’s face it, does not justify the Minister’s jaunt to Switzerland. It states that:

  • Ministers and Deputy Ministers should approach the President in writing, two weeks in advance of a planned official visit abroad, to request approval for the intended visit and the appointment of an Acting Minister.
  • Ministers and Deputy Ministers may travel on official visits abroad if these are essential, in the national interest and with due regard to the availability of Departmental funds.
  • International visits should offer real value and benefit to the Republic of South Africa (RSA), in that: the status and importance of the people with whom appointments are made are on a par with the visiting Member and have special merit for the RSA; the  institutions visited or the matters investigated have not received adequate attention in the recent past during previous visits by Members or officials; the countries visited are of real importance to the RSA; the value offered by good media coverage has been taken into account; the merits of invitations to address organisations, groups, etc. have been fully ascertained.
  • In view of the official duties of Members in the Republic, the extent and duration of visits abroad should be limited to the absolutely essential.

This means that President Jacob Zuma should have given permission for this trip. If he did not give permission for the trip as required, this would mean that the Minister had flagrantly flouted the Ministerial Handbook and that President Zuma has no option but to fire him or appear to be condoning the corrupt practices of one of  his Ministers. If he did give permission, he gave permission for an illicit trip that does not by any stretch of the imagination comply with the provisions of the Ministerial Handbook and this would mean that he endorsed the flagrant abuse of state resources by one of his Ministers.

The Presidency therefore needs to inform us whether he gave permission for this illegal trip and if he did, why he flagrantly flouted the rules set out in the Ministerial Handbook. The President – as much as the Minister – should be held accountable for this jaunt by the Minister to go and visit his drug trafficking girlfriend in a prison in Switzerland.

The Good Book also has some interesting text verses relating to long stays in hyper luxury Hotels. Pity the Minister was too busy pining for his mistress langiushing in a Swiss jail to pay attention.  The Good Book states that when Ministers are newly appointed they may need time to settle in and then as an exceptional measure may stay in a Hotel when they are in Pretoria or Cape Town.

If, owing to exceptional circumstances, a State-owned residence is not immediately available for Members upon assumption of duty of office, expenses in connection with alternative accommodation may be debited to the State until an official residence becomes available.

Members may occupy, for official purposes, one State-owned residence, in the capital of their choice, free of charge. If available, Members may occupy a second State-owned residence in the other capital, for official purposes. In this event a monthly market related rental is payable. No allowance is payable to Members who prefer not to utilise a State-owned residence for official purposes at the seat of office. Where official residences (private or State-owned) are kept in both Cape Town and Pretoria, no subsistence allowance is payable for official journeys between Cape Town and Pretoria.

The stays in the One & Only Hotel, with or without a “father figure” in tow, (which cost us over R600 000) were therefore not sanctioned by the Ministerial Handbook – no matter what the Minister claims now. The Minister was therefore in effect stealing money from each and every South African who pays taxes via personal income tax or via VAT.

President Zuma has two options. He can ask the Minister to resign, which might indicate that he is at least slightly worried about the venal abuse of state resources by his friends and colleagues (even if he does not wish the same rules and standards to apply to him). Or he can do nothing, in which case we will all known that he endorses this kind of theft from ordinary citizens. This will not reflect well on his integrity and his stature as President of our country. Some of us might even start to wonder why he never got his day in court and what might have happened if he had not escaped prosecution for taking bribes from a convicted crook and then doing favours for that crook.

Scorpions was not truly independent

Mar 22nd, 2011
by Pierre De Vos.
75 comments

One should, of course, not expect politicians always to make logical arguments and to act rationally and consistently. South Africa’s confusing and ever-changing stance on Libya is a rather embarrassing case in point. One would also be over-optimistic if one expected our elected representatives always to act in a consistent and logical manner. Often what politicians say they believe and what they actually believe and do is not the same thing.

(For example, almost all our politicians profess to want to serve the poor, but some believe they can do that task so much better if they drove around in R1.2 million luxury German cars and live in the lap of luxury in 5 Star Hotels at taxpayers expense, while others endorse government policies and actions – including water and electricity cut-offs and forced evictions – that are decidedly anti-poor.)

Sometimes the reasons the politicians present to justify their actions actually do the opposite of what they were supposed to do. When one studies the reasons provided by politicians to justify their actions one is often left with the feeling that the politicians are so brazenly disrespectful of citizens that they do not even bother to cover up their lies and deceit with even halfway credible justifications. The tawdry saga of the scrapping of the Scorpions and the creation of the Hawks perfectly illustrates this rather sad point.

In the Glennister judgment the majority of judges of the Constitutional Court found that our Bill of Rights placed a positive duty on the state to create an independent corruption fighting body. The Hawks, the court found, was not such an independent body. Of course, the Hawks we were told, was an independent body that would truly help us win the battle against corruption. We now know that these claims were far from true.

During debates about the scrapping of the Scorpions at least two arguments were used by the politicians to justify the replacement of the Scorpions with the Hawks. Although almost all of us knew that the move was nothing but a self-serving attempt aimed at protecting corrupt politicians from criminal sanction, few of us actually called out the politicians for these shameless lies they were peddling.

First, it was argued that it was not constitutionally tenable that a body investigating crime should be situated in the National Prosecuting Authority (NPA) as the Constitution clearly created a separate police force and prosecuting authority. Having a unit in the NPA involved in investigating crime was therefore constitutionally problematic as prosecutors should prosecute and police officers should investigate crime.

However, the amendments to the South African Police Services Act declared invalid last week contained provisions that made a mockery of this argument. Section 17F(4) stated that the National Director of Public Prosecutions “must ensure that a dedicated component of prosecutors is available to assist and co-operate with members of the Directorate in conducting its investigations”. The Hawks therefore in effect also has prosecutors helping it to investigate so-called priority crimes – the very evil the politicians told us had to be addressed by the creation of the Hawks.

This suggests that the politicians were lying when they assured us they were animated by high principle when they abolished the Scorpions. Nothing new there, you might say. After all, a former Premier of Mpumalanga once admitted (rather candidly) that politicians always lied, so we should not be surprised when the assurances given by politicians turn out not to be true.

Second, the argument was advanced that the Scorpions had become a law unto itself and had been abused by politicians who used the Scorpions to target some but not other politicians. President Mbeki, so the argument went, used the Scorpions to target Jacob Zuma, but this was unfair because many politicians had done corrupt things but only a few like Zuma were targeted by the Scorpions.

Politicians pointed to the illegally obtained (and perhaps illegally made) recordings of telephone conversations (intercepted by who knows whom) which purported to show that discussions were held about the best political timing to charge then Mr Jacob Zuma with fraud and corruption, to back up this argument that the Scorpions had been abused to eliminate Jacob Zuma from the race for the Presidency of the ANC.

I, for one, thought this argument might well have some merit. Because the National Director of Public Prosecutions (NDPP) is appointed by the President and because the NDPP also appointed the head of the Scorpions, questions could legitimately be raised about the independence of the person who headed the Scorpions and the NPA. Given the fact that the then President was involved in a rather dirty war with his deputy in the ANC for the top job of ANC President, and because the Scorpions selectively investigated and prosecuted corruption amongst politicians and well-connected South Africans, reasonable people could easily have concluded that the Scorpions were being manipulated by President Mbeki to achieve his personal political ambitions.

In fact, a judge of the High Court found as much, which led to the firing of Mbeki as President of the country. Although this judgment was rightly overturned on appeal, the fact that a judge of the High Court could make a finding of political interference suggests that a reasonable person could very well come to the conclusion that the Scorpions were not independent.  

One would therefore have thought that any honest politician would have done everything he or she could to create a truly independent body to fight corruption, a body that would not be open to any political manipulation by any politician – including by the President of the country. Sadly, this is not what happened, perhaps because the new President himself had been implicated in corrupt activities. 

As the Constitutional Court  pointed out last week, instead of creating a truly independent corruption fighting unit free from any potential interference by politicians, Parliament created the Hawks which were subject BOTH to the authority of the Commissioner of Police who is appointed by the President and whose term can be renewed by the President (if the Commissioner does what is expected of him by the President) AND to a Ministerial Committee who could decide what crimes to investigate and (more importantly) what crimes could not be investigated by the Hawks.

So, to stop the alleged political abuses associated with the relatively independent Scorpions, Parliament created a body that had absolutely no independence and could very easily be manipulated by politicians (the Ministerial Committee) to target political opponents inside and outside the majority party. This demonstrates the extent of the dissembling of the ANC dominated executive and Parliament who abolished the Scorpions and created the Hawks. They pretended to fix a problem by making it much worse.

What is to be done now? What should Parliament do to comply with the Glennister judgment? What it should NOT do is to resurrect the Scorpions as that body was not a very effective corruption busting institution at all.

Defenders of the Scorpions often argue that it was a successful and laudable body because it won more than 90% of the cases it brought to court. I am not so sure I share this benign view of the Scorpions. When one evaluates the effectiveness of a corruption fighting body one should look beyond its success rate in prosecuting those criminals it had decided to go after. Instead one must ask whether it had investigated and prosecuted all credible allegations of corruption with equal vigour and determination.

Clearly the Scorpions did not do this. Although the Scorpions went after Deputy President Jacob Zuma with admirable determination (and rightly so, given the fact that his financial advisor was later convicted of bribing him), it failed to pursue many other credible allegations of corruption, including allegations – never directly denied – that then President Thabo Mbeki had solicited arms deal bribes to pay for the ANC 1999 election campaign. Chippy Shaik, who was fingered in the JIP report and is widely believed to have benefited unlawfully from the arms deal was also not pursued. Allegations of corruption against other high ranking ANC leaders were never pursued or were dropped by the NPA for reasons that seem unclear.

What is required is the establishment of a completely independent body to investigate and lead prosecutions regarding corruption – regardless of whether the person involved is a police constable in Pofadder or the President of the country. Such a body would only be able to do this task properly if its head was NOT appointed by the President but was instead appointed by a two thirds or even 75% majority of members of the National Assembly. The head of this body would also need to have the power to appoint his or her own staff free from interference and political pressure.

The head of such a body should be accountable to Parliament but should be protected from interference by Parliament or the Executive. This means that the body should be empowered to decide for itself what cases to investigate and how to investigate them. The body should have broad search and seizure powers and other investigative powers and should be well financed and staffed so that it could pursue every complaint of corruption lodged with it by members of the public.

In the absence of such a body, we will not win the fight against corruption. At present the perception is that if one is politically well-connected one is protected from investigation and prosecution for corruption. The perception is that whether one is a Brett Kebble or a Jacob Zuma, a Julius Malema or a Gupta, one would never now be investigated and prosecuted for corruption – even if one had engaged in corrupt activities.

This perception may be wrong. Some or all of those mentioned above might not have been involved in corruption at all. But as the Constitutional Court found last week, a corruption fighting unit will only be independent if it is perceived to be independent. As long as ordinary people have the perception that some of our citizens are above the law and that a corruption fighting body would never investigate them, that would not be the case.

In any case, at present whenever a politician or well-connected individual is arrested for corruption, the first thing he or she usually says is that the arrest formed part of a “political conspiracy”. Although claims of such a political conspiracy is almost always laughable and usually means nothing more than that the person is guilty as sin, such claims have traction exactly because we do not have a truly independent body investigating corruption. And until we have a truly independent body to fight corruption they might even have some reason to believe the nonsense about political conspiracies.

Gareth is (still) very cross (and morally outraged, too)

Mar 1st, 2011
by Pierre De Vos.
97 comments

Gareth van Onselen, the DA’s “executive director of special projects” (scary title, dude!), is morally outraged at the manner in which various editors and “media pundits” have responded to the DA’s decision to punish Sowetan journalist, Anna Majavu. The DA removed Majavu from its mailing list because the “DA had no further comment for this journalist” who had been writing damaging stories about the DA.

In a scathing piece, brimming with moral outrage, Van Onselen has taken on the various DA critics, arguing that moral outrage is almost always “unprincipled”.

In fact, he went further. Quoting British moral philosopher, AC Grayling, he suggested that “what moral outrage always aims at is censorship”. Van Onselen at first argues that the expression of moral outrage is always a bad thing as “its consequences are often absurdly undemocratic”.  The dangers of moral outrage are severe because:

good and bad become absolutes. Murder and offence are elevated to the same moral standing. Ambiguity is banished and, with it, human nature. It is divisive, the kind of attitude that generates ‘us versus them’ thinking and, make no mistake, that kind of absolutism is the foundation on which authoritarianism is built.

Perhaps realising that he is implicating himself and the party he serves in censorship and authoritarianism (after all, the piece he has written and almost all the press releases of the DA lambasting the ANC for its various sins are filled with moral outrage), he then seems to contradict himself by stating that it is:

possible to be rightfully outraged at some moral injustice, but in order that it is distinguished from the unthinking self-righteous anger identified above, such an expression must be grounded in a set of values against which the subject of that outrage is gauged. Detached from those values, the ‘moral’ part of ‘moral outrage’ is lost and all that remains it outrage”. It is the latter of those two types of outrage to which Grayling refers and which, sadly, is prevalent in South Africa today.

In other words, when Van Onselen and the DA express moral outrage it is grounded in a set of values and therefore acceptable. When the DA expresses moral outrage it never results in ”us versus them” thinking – except in the polluted and deranged minds of the DA critics who scandalously and in an utterly unprincipled manner express outrage at the DA’s alleged ”us versus them” attitude contained in the “Stop Zuma” and “Fight Back” campaigns. But when critics of the DA express moral outrage this is never grounded in a set of principles (liberal or otherwise) and thus necessarily amounts to censorship (of the DA) and therefore inevitably deteriorates into authoritarianism.

To sum up: according to Van Onselen, DA = good;  DA critics = evil; DA = not absolutist; DA critics = absolutist. Yeah, not logical, I know. I guess all that pent up moral outrage must have clouded old Gareth’s ability to construct a logical argument. (Gareth, why don’t you start a Blog – it’s a great place to express moral outrage!)

The argument – as far as I can follow it – is that the DA’s critics are unprincipled because the DA has a right not to communicate with a journalist. If the DA, according to its own criteria (which one assumes Van Onselen believes are objectively applied to the DA by the DA – an idea the DA would have been morally outraged by if expressed by the ANC), decides that a journalist is not fair to it, it may express its displeasure by cutting off contact with that journalist. The DA’s critics are arguing that the DA does not have this right. This is undemocratic. In fact, according to Van Onselen’s logic, this leads to an autocracy. Why is it, asks Van Onselen, that at no point has any one given any consideration to the possibility that Anna Majavu is, in fact, biased? Instead they all assume the DA is in the wrong.

(Incidentally, on this last point Van Onselen contradicts himself because later in his piece he points out that I did ask whether Majavu was biased by focusing on the story which preceded the move by the DA to remove Majavu from its mailing list. Van Onselen studiously avoids addressing the fact that at the time he had told a big whopper by claiming the press Ombudsman had found in favour of the DA in that case when – on the salient points – it had found in favour of Majavu. He also claims that this particular case had little to do with the move by the DA – despite the fact that Majavu just happened to have been removed from the DA list on the day the DA submitted a complaint to the Press Ombudsman about the particular story. Appartently this is a sheer co-incidence. I guess there will be a few people who believe this claim.)

Which brings me to the heart of the matter, namely whether criticism of the DA was based on any discernable principle or on a set of values. My claim is that the criticism was based on the values of freedom of expression and democratic pluralism in an open and democratic society and on the principle that powerful political players must not act in a way that will have a chilling effect on press freedom.

First, the claim that criticism of the DA amounts to censorship, is not sustainable. This is an old trick used by politicians to avoid criticism: conflating criticism with censorship. Most of us who criticised the DA stated that we thought the DA was wrong. I, for one, never argued that the DA had no constitutional or legal right to punish Majavu. The DA has every right to take a journalist off its mailing list or to refuse to comment when that journalist contacts it. The rest of us had every right to criticise the DA for its action. This is not censorship or authoritarianism: it’s actually called democracy. The DA should try it some time.

An example: Van Onselen has the right to make racist remarks as this is not unconstitutional or illegal in South Africa. I have the right to criticise him for making racist remarks. When I do, I am not censoring him, I am expressing my opinion which is at the heart of my right to exercise my freedom of expression. Even if I criticise the racist remark in a way that amounts to the expression of “moral outrage”, it is still my right to level such criticism. Van Onselen suggests that if he made a  racist remark and I expressed moral outrage about it, I would be censoring him and would be encouraging authoritarianism.

Sjoe, and he also claims to be a liberal.

Apparently we are not allowed to express an opinion about the actions of the DA – unless that opinion is based on a principle which the DA agrees with. To me this attitude sounds rather authoritarian, but I guess Van Onselen will say that I am not allowed to express that opinion either because it amounts to unprincipled moral outrage (not based on a set of DA values) which by its very nature leads to authoritarianism.

Go figure.

Second, although Van Onselen cannot see this, an important principle is in fact at stake here. The DA is not a private entity – like a book club or a knitting society. The DA is a political party which, in terms of our Constitution, plays an important role in our democracy, representing opposition voters and taking part in the legislative process and in the oversight of the executive. It competes for our votes during elections and governs the Western Cape and the City of Cape Town.

Although not as powerful as the ANC, it exercises considerable power – both the hard power of office and the soft power associated with its influence on the political discourse and importance for the media in selling newspapers. Not reporting on the DA would be like not reporting on Julius Malema: the sales of a newspaper will suffer. The DA is therefore not a helpless victim of the media, but a powerful co-player in the media game.

As is the case with the ANC, it is important that the media scrutinise the actions of the DA and that a wide array of news outlets report on the actions of the DA from their various perspectives. Some media outlets will be broadly supportive of the DA and others will be more critical. If the DA believes the reporting has breached any law or code it can take the matter up with the Press Ombudsman or the courts. If it believes that the reporting is unfair, it has a right to say so. For example, when a finding is made that a DA councillor had shot at black children and then laughed about it and this is reported by the media, the DA can complain that the media had reported this fact at all. After all, it is not used to be at the receiving end of such negative – if true – reporting.

The relationship of the media to big political parties is complex. Political parties want to use the media to provide good publicity about themselves and to assist them with their propaganda so that voters would like their party and would vote for it. The various media outlets want to remain in the good books of the political party because it needs to cultivate contacts in that party who can feed it with juicy information about the internal workings of the party (which is a staple of news reporting) and gossip and criticism of the opposition parties. At the same time the media has a duty to expose wrongdoing by members of a political party and to report on matters which really place that party in a bad light.

Where a political party like the DA “protests” against the reporting of a particular journalist by removing her from a list and in effect, suggesting that it would refuse to engage with that journalist, this has a potentially chilling effect on journalists in general. Such a move is intended to send a message to journalists that the DA will take steps against a journalist who consistently give it bad publicity. The message is that journalists who deal with the DA better beware. “Don’t f*!ck with us because we will cut you off!”

If a journalist writes articles – even if these are essentially true – that embarrasses the DA, the party might take steps to break off contact with that journalist. This is a kind of punishment. In the bigger scheme, removing someone from the DA’s mailing list is a very slight punishment. (Some would argue it is a kind of reward.) But the principle is clear:  “This time we only removed you from our mailing list, but next time we might make sure that no-one in the DA speaks to you and we might cut you off from sources inside the party which you may need to report properly about the party or about politics in general.” As US Supreme Court case law makes clear, the threat of taking action against the media can itself have a chilling effect on the exercise of freedom of expression by the media.

The action against a journalist therefore sets a precedent. It suggests that if the DA (as opposed to an independent body like the Press Ombudsman or the courts) has decided that you are biased against the DA, the DA reserves the right to punish you - even if at first the punishment will be mild. It is not unlawful or unconstitutional for the DA to do this. It is, however, unprincipled and wrong. It is essentially aimed at intimidating journalists in general: Cross us, says the DA, and who knows what actions we will take against you to ensure that your sources of information inside the DA dry up. We reserve a right to take action against journalists whom we do not like.

The liberal mantra about freedom of expression is that: “I do not agree with what you write but I will defend to death your right to write it”. The DA has adopted an illiberal mantra which states: “You can write what you like but if we do not like what you write about US we will not defend you. In fact, we will try and make your job more difficult and we will take steps to make sure that you do not write about us or write about us as little as possible. We will do this because we can.”

Put differently the DA is saying that it has a right to refuse to engage with a journalist. They are correct, of course. No one can force the DA to engage with a journalist. But having a right and exercising the right is not the same thing as being right and acting in a principled and ethically correct manner. (As I said: One has a right to be a racist, but it is never right to be a racist.)

In my view, when political parties refuse to engage with journalists whom they do not like, they are acting in a way that threatens press freedom. No journalist wants to be cut out of the loop. If a party uses its considerable power over the media (as journalists depend on political parties for information and comment) to cut pesky journalists out of the loop, chances are that other journalists will self-censor so that they will remain in the good books of the party. The casualty of all of this is, of course, freedom of expression – the very freedom of expression that the DA claims to revere.

In my book that is hypocritical. Gareth, on the other hand, will probably claim that I am expressing unprincipled moral outrage and that I am therefore censoring the DA and acting like an authoritarian. You decide who is right.

On selling arms to the Brother Leader Gaddafi

Feb 27th, 2011
by Pierre De Vos.
56 comments

Muammar al-Gaddafi is clearly an unhinged, narcissistic, megalomaniac. The fact that he looks like a very scary, aged, version of Michael Jackson might be interesting and (for those of us not living in Libya) rather amusing, but the fact that he could appear on television this week and state that anyone who lifted their arm against the regime would be executed (those would be all you “rats” and “cats” who have had a cup of drugged Nescafe and was therefore acting as agents of both Western imperialist and al-Queda forces) suggest just what a thoroughly evil and unhinged man he is. He might have been generous to the ANC (and according to completely unconfirmed rumours, to President Jacob Zuma personally),  but that does not mean that he is not a very bad and dangerous man.

In its 2010 report on human rights abuses in Libya, Amnesty International concluded that despite some reforms the Libyan government continued to be involved in the systematic violation of the human rights of its citizens. It stated that freedom of expression, association and assembly continued to be severely curtailed and that the authorities showed little tolerance of dissent.

Critics of the government’s human rights record were punished. Former detainees at Guantánamo Bay returned to Libya by US authorities continued to be detained; one died in custody, apparently as a result of suicide. Foreign nationals suspected of being in the country irregularly, including refugees and asylum-seekers, were detained and ill-treated. An official investigation began into the killing of prisoners at Abu Salim Prison in 1996 but no details were disclosed and some of the victims’ relatives who had campaigned for the truth were arrested. Hundreds of cases of enforced disappearance and other serious human rights violations committed in the 1970s, 1980s and 1990s remained unresolved, and the Internal Security Agency (ISA), implicated in those violations, continued to operate with impunity.

Human Rights Watch also found that in 2010 the Libyan government continued to imprison individuals for criticising the country’s political system or its leader, Muammar al-Gaddafi, and that it maintained harsh restrictions on freedom of assembly and expression, including penal code provisions that criminalise “insulting public officials.” The Human Rights Watch also criticised the security forces for its violation of international human rights law.

Last year the South African National Conventional Arms Control Committee (NCACC) authorised arms trade between South African companies operating in defence-related industry and the Republic of Libya. The NCACC can only authorise such a sale if the requirements of section 15 of the National Conventional Arms Control Act  41 of 2002 are complied with.

Section 15 of this Act states, inter alia, that when considering applications for the sale of arms to other governments the Committee must “avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms”; and must “avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms”. The NCACC must also consider various other factors not relevant to the current sale of arms to Libya.

On the face of the available evidence, it therefore seems as if the NCACC unlawfully authorised the sale of South African manufactured arms to the clearly unhinged Libyan dictator — who happened to have donated a lot of money to the ANC in the past. This is the kind of thing that one obviously expects from the United Kingdom or the USA governments who put profit above principle no matter what, but which our progressive ANC-led government outlawed in 2002.

As the NCACC is legally required not to authorise the sale of arms to a government that systematically violates the human rights of its citizens, one might wonder why they agreed to the sale of arms to Libya. The NCACC consists of “such Ministers and Deputy Ministers as the President may appoint” and such other persons as the President deems necessary. The NCACC is headed by the Minister of Justice, Jeff Radebe.

By far the most plausible — but obviously not sustainable — justification for the sale of arms to the Libyan government would be that the Libyan government actually did not systematically violate the human rights and freedoms of its citizens. The facts obviously demonstrate that such an argument would be close to laughable but that would have been the only plausible argument open to the South African government to justify the sale of arms to the Libyan dictator.

One imagines that another argument that some untalented and not very bright hack (like the state law advisor) might come up with to try and excuse the inexcusable would be that although section 15 is phrased in peremptory terms, the section is headed “guiding principles and criteria” and therefore that the various injunctions contained in section 15 did not have to be obeyed by the NCACC. But the use of the word “must” as well as the use of the word “and” in the second last subsection makes it clear that every single requirement mentioned in section 15 had to be adhered to. Unless one has a rather shocking lack of knowledge about how to read the provisions of an Act the content of section 15 is pretty clear.

Unfortunately it does not seem to be clear at all to Minister Jeff Radebe. Maybe the Minister decided that it would not be good for his image to claim that certain facts existed when they clearly did not. After all, this might have made him appear only slightly less unhinged than Muammar al-Gaddafi and his sons in various speeches and interviews over the past few days. The Minister therefore had to find another interpretation of the applicable law to justify what, to me, seems unjustifiable. In justifying the sale of arms to the Libyan government Minister Radebe stated that:

All decisions taken by the NCACC are preceded by investigations that are undertaken by the subcommittees established in terms of the Act. These subcommittees have a legal duty to report to and advise the NCACC on matters that relate to its business, including the arms trade. In this way we can confidently indicate that in all transactions that were undertaken and concluded with Libya, we had satisfied ourselves, through a meticulous process, that there was compliance with the guiding principles and the criteria laid down in our law. As we have said in the past, in making decisions the NCACC considers in aggregate, all principles reflected in our legislation. No single principle is considered in isolation of the others.

At the time when the transaction was concluded with Libya, there was no evidence available to the effect that there would be any political unrest in that country; this extends to the region (North Africa and parts of the Middle East). Similarly, there was no evidence that if political instability were to occur, that it would turn out violent in Libya or in any of the countries with which arms trade had been concluded. Some in the media or through the use of media as a platform have been quick to conclude that the deaths that have been reported in Libya during the period of political unrest have a direct link with the arms sold by the South African companies to Libya. There is no evidence available to back up such a claim.

This answer suggests that the Minister is either unfit for the office he holds as he lacks the basic ability to grasp a pretty clear and unambiguous instruction contained in the relevant piece of legislation, or that he and his Committee have deliberately flouted the law and is now trying to mislead the public about this matter.

Section 15 does not allow the Committee holistically to take into account all the factors set out in section 15 and then to make an overall assessment of whether, on balance, it would be advisable to sell arms to the country concerned. The statement by the Minister that no single principle should be considered in isolation of the others when considering whether arms should be sold to a foreign government is therefore clearly and even embarrassingly wrong.

When an act orders that our government must avoid selling arms to a government that systematically suppress human rights and freedoms there is not really room for manoeuvre. Minister Radebe seems to want to interpret the word “must” to mean “need not” — a mistake no person with even a passing knowledge of English and a modicum of integrity would ever make.

Minister Radebe is correct that section 15 instructs the NCACC not to sell arms to a government likely to use arms to suppress political unrest in that country and that it could not have been foreseen that the Libyan government would start massacring its own citizens this year. (After all, since the Libyan government was systematically suppressing the human rights of its citizens one would not have been able to predict that an uprising this year would have threatened the very existence of the regime and that the regime would have started to murder its citizens – regimes who deny their citizens basic human rights are often quite stable.)

But section 15 of the Act requires the NCACC to do far more than predicting whether arms would be used against the citizens of a country to whom we sell arms. The Act Requires that South Africa MUST avoid selling arms to a government that systematically suppress human rights — regardless of whether this will include the use of arms to murder their own citizens or not.

Now, there was no international arms embargo against Libya when South Africa sold that regime the arms under discussion. If the National Conventional Arms Control Act did not prohibit the government from selling arms to governments who are serial human rights abusers there would have been nothing illegal with the sale. But that is not currently the law in South Africa. The fact that the Minister can claim that our law states something that it clearly does not, is rather astonishing.

But I guess that is what happens if the political party one belongs to receive a large donation from a nasty, authoritarian and completely unhinged dictator: one sells arms to that dictator in flagrant violation of the laws one has passed oneself and then pretends that the law does not state what it actually does state.

No demonstrations in Parliament please

Feb 19th, 2011
by Pierre De Vos.
42 comments

According to public opinion surveys, only one-third of the South African population trust that Parliament will do what is right “most of the time”. This is much lower than trust in the SABC, but higher than trust expressed in local government. One imagines that the Travelgate scandal and regular news reports showing members of opposing parties engaging in often childish and vacuous “debates” in the National Assembly have not helped to instil trust in our Parliament.

There are many problems with the way our Parliament operates. The strict party discipline (enforced by party whips); the electoral system that makes members of Parliament beholden to party leaders instead of the electorate; the large turnover of MP’s (especially amongst the ruling ANC); the lack of specialised legal knowledge of many MP’s; the often acrimonious public spats between MP’s of the ANC and the DA; the contemptuous attitude displayed by some Ministers for the work of Parliament, all erode public trust in the institution and hamper the work that MP’s are constitutionally required to do.

Yet, anyone who regularly attends meetings of the various portfolio committees of Parliament would know that these committees often do important work and make a real contribution to our system of governance. Many (but sadly not all) MP’s take their job seriously and (away from the cameras) often manage to work across party lines to improve draft legislation and to hold the executive to account — despite resistance from some Cabinet Ministers and senior officials who do not always display the requisite respect for MP’s and the  work they do.

Many NGO’s, civil society groups, legal academics and concerned individuals submit comments to draft legislation and make presentations at oral hearings of portfolio committees because they believe their interventions may make a difference. Unless an issue is highly politicised (which hardens attitudes and make any compromise less likely) or the chairperson of a portfolio committee is incompetent or driven only by ideological considerations, portfolio committees can play an important role to improve legislation and to hold government departments to account for mismanagement, wasteful expenditure and bad governance.

Of course, there is much room for improvement, but work of real value is done in these committees — something most South Africans seem unaware of. The involvement of NGO’s, civil society groups, academics and lawyers in this process is essential. Section 59 of the Constitution recognises this and states that the National Assembly must facilitate public involvement in the legislative processes of the Assembly and its committees. As a general rule, all meetings of committees are open to the public and the media, who can only be excluded if this is reasonable and justifiable in an open and democratic society.

But what happens if members of the public attend public hearings and then stage a demonstration to protest against the provisions of a Bill being considered by a committee? This happened on Tuesday when a delegation of Right2Know Campaign staged a protest at a meeting of the ad hoc Committee handling the Protection of Information Bill.  The Right2Know supporters covered their faces with masks depicting Minister Siyabonga Cwele and held up placards reading: Cwele, Minister of Secrets!

The Campaign justified its action in the following terms:

The Right2Know campaign believes that the public should have a right to express themselves in Parliament in a manner that does not disrupt the ability of MPs to conduct their business.  In this spirit we have been protesting inside the Committee for the past months with our campaign t-shirts and taped mouths — indeed, by our very presence. It is not clear why certain ANC members of the Committee have now decided to explore legal action to limit the R2K Campaign’s free expression.

ANC members of the Committee took great offence to this protest. They alleged that R2K supporters had broken the law and requested the Committee Chairperson, Cecil Burgess, to launch an official investigation into the incident. I am on record as supporting the work of the Right2Know campaign. The Protection of Information Bill – even in the latest “improved” version — is a draconian document and if passed it will seriously hamper the efforts of civil society, the media and whistle blowers to expose corruption and maladministration. It will foster a culture of secrecy, instead of the culture of openness, transparency and accountability promised by the Constitution.

Yet, I am not sure I can support this latest action by the Campaign. Although the reaction of ANC MP’s might have been over the top (after all, the demonstration was peaceful and non-disruptive) I am not sure Parliament is the place for this kind of protest.

For one, the demonstration was clearly illegal. Section 7 of the Regulations of Gatherings Act 205 of 1993 prohibits any demonstration within the Parliamentary precinct or near Parliament unless permission has been granted. A demonstration is defined broadly to include any protest action by one or more persons. A criminal offence was therefore committed.

This Act was passed by the apartheid Parliament and restricts the freedom of expression and the right, peacefully and unarmed, to assemble, to demonstrate and to picket. But I suspect that the Constitutional Court will find that any such restriction is justifiable in terms of the limitation clause. Anyone who is unhappy with the work of a Parliamentary Committee can, of course, protest or demonstrate against this — as long as they do not do so in and around Parliament without obtaining the required permission. This section therefore does not place an absolute restriction of the right to free expression or assembly.

There are also pressing policy considerations for regulating protests inside Parliament. Members of the governing party might argue that any demonstration or protest inside Parliament – even where it is peaceful and not disruptive — threatens the national security of the state. That would be a silly and rather authoritarian argument to make. A far better argument would be to point out that such demonstrations detract from the dignity of the Parliament.

An even better argument would be that allowing demonstrations at committee meetings — even if these are peaceful and non-disruptive — is not conducive to creating an atmosphere in which MP’s can carefully consider the various objections and proposals from experts and members of the public and can do their work in a relatively calm and deliberative manner. Demonstrations – even peaceful demonstrations — have a tendency to inflame passions and stir up emotions. Surely we would not want our MP’s to make important decisions about our future while they are seething with self-righteous anger? The line between disruptive and non-disruptive demonstrations will also be very difficult to draw and policing members of the public to ensure that demonstrations do not become disruptive will be costly and often rather difficult.

In my opinion committee meetings of Parliament is not the place to hold demonstrations. Let us rather meet outside Parliament where we can toyi-toyi, wave placards, do Volkspele or express our views and feelings in any other way we see fit — without detracting from the work done by the members of Parliament inside the legislature.

This is about a principle, not about the cause in whose name the principle had been breached. Imagine how you would feel as a DA supporter if ANC members, angry at the Western Cape’s government’s housing policies, demonstrate at a committee meeting of the Western Cape provincial legislature by holding up placards of Helen Zille’s peering out of a window of her palatial official home. Or how you would feel as an ANC supporter if DA supporters attend the State of the Nation address and display large replicas of Zapiro cartoons showing the President with a shower-head on his head.

Personally, I would have sympathy for the cause of the demonstrators, but I would feel very uncomfortable with such a demonstration being held inside a committee room of the legislature or inside the debating chamber of the National Assembly or NCOP. The same goes for the Right2Know demonstration. In the bigger picture this is not a life or death issue, but it does ask us to think about first principles and to conclude that demonstrations inside Parliament is not easily compatible with the smooth running of a democracy.

Why a free flow of information is important

Jan 31st, 2011
by Pierre De Vos.
62 comments

Throughout the 20th century, the Partido Revolucionario Institucional (PRI) had held complete power at the state and federal level in Mexico. For 60 years the PRI won regular elections of various degrees of freeness and fairness. Because Mexico was a one party dominant democracy, the dominance of the PRI created its own momentum and it became almost unthinkable for the majority of voters not to support the PRI.

To get ahead in the civil service, to win government tenders, to be appointed as a school principle or police chief, one had to be seen to be a supporter of the PRI. And because of the overwhelming electoral support enjoyed by the PRI it was easy for it to discredit and even de-legitimise opposition parties. Only the PRI spoke for the masses of the people and only the PRI could be trusted to govern the country and to bring revolutionary development and change to the people (along with enormous prosperity and wealth for PRI leaders and those who knew them). 

And because of its dominance and its control of much of the media, it managed to win elections despite increasing allegations of corruption and nepotism levelled against it. There just was no one else to vote for and no one to trust. But this could never last: In the end Mexicans began to  distrust everyone – including the leaders of the PRI. While  some still believed that it would be in their interest to continue voting for the PRI and returned the PRI to power after every election, many people did not vote at all.

Thus the support of the PRI slowly began to recede in the late 1980s, but especially since the 1990s with the emergence of new forms of technology like cell phones and the Internet, with the growth of a more confident and informed middle class who eventually voted into office a former Coca Cola Executive as President. (That is like South Africa voting into office a former CEO of Anglo-American or the Rembrandt Group.) In 1989, the first non-PRI governor of a state was elected (at Baja California). It was in 1997, that PRI lost its absolute majority at the Congress of the Union, and in 2000 the first non-PRI president was elected since 1929.

Mexico shed its one party dominant character and today politics are robust and open. Although Mexico has many problems – drug lords seem to be able to terrorise citizens in many part of the country and effectively control the government in some parts – it did not go through the kind of violent convulsion we have seen in the last three weeks in Tunisia and now in Egypt. This is because Tunisia and Egypt have been authoritarian police states propped up by the USA government, who has poured more than $1.5 billion in military aid into Egypt each year since Egypt signed a peace deal with Israel.

Egypt holds regular elections but it would be a stretch to call it a democracy as there are severe restrictions on freedom of speech, the government has ruled under emergency powers for more than 30 years and there are severe restrictions on political organisation and mobilisation. Egypt is therefore more like Zimbabwe than South Africa. It is ruled nominally by the National Democratic Party (NDP), but this party is little more than an extension of the will of the President.

Watching the NDP headquarters in Cairo go up in flames on Al Jazeera on Friday night, my first thought was whether, thirty years from now, we will be watching Al Jazeera and seeing Luthuli House go up in flames during a revolt by unemployed and relatively educated youth which would shake the hold of the ANC government on the country to the core.

No political party can govern for ever. Even a liberation movement like the ANC will someday stop governing South Africa. This will probably happen either because the ANC was successful enough to create a big enough middle class whose interests does not coincide with the traditional working class constituency of the ANC and the one or the other class would desert the party (as happened in Mexico), or it would happen because the ANC would have lost all credibility and legitimacy because of increasing repression, linked to enormous corruption and nepotism and rising unemployment.

In the first instance the change might well come peacefully. The last ANC leader in power will lose an election and will retire peacefully (maybe opening an institute focusing on democracy building or anti-corruption efforts). This is what happens in a relatively free and open society: at some point the political party in power loses support and another party with different ideas win the election. Once that happens, South Africa would have become what political scientists call a mature democracy.

But if the ANC becomes more repressive - if it passes the draconian Protection of Information Bill, then a Bill creating a politician appointed Media Appeals Tribunal, then start taking measures further to limit political freedom and the ability of both parliamentary opposition groups and social movements to organise and to present a vehicle for those disaffected with its increasing corrupt and autocratic style, if it amends the Constitution and packs the courts with unprincipled lackeys – the last ANC leader in power might well have to seek political asylum in Zimbabwe or perhaps in the USA if he or she wants to escape the wrath of the people.

If the SABC becomes an ever more vocal mouthpiece spouting ANC propaganda, if we also start saying as they do in Egypt, that one cannot believe any rumour until it has been officially denied on state TV, if media laws restrict or completely repress the free media and monitor the Internet and anyone critical of the regime is fearful of talking on his or her phone because that phone will most certainly be tapped by the intelligence services, then a peaceful change becomes ever less likely. It is then that we will see the burning of Luthuli House and the storming of the SABC’s Auckland Park offices, when hundreds of thousands of people will march through the streets of Johannesburg and Cape Town and the army will scramble to see if any of their tanks are actually working so that they could be ordered into the streets to try and quell the demonstrations.

This is the lesson I take from what is happening in North Africa: in the end in the modern world with Internet and sattelite TV and mobile phones and rising levels of education amongst the population, political opression and control of the media can never ensure that a political party remains in power for ever. All it would do is heighten the chances of a violent uprising that will destroy the incumbent political party who tried to stay in power by repression. As Parliament deals with the Protection of Information Bill which – in its present form – would allow more than 1000 organs of state, including Zoos, universities, and Arts councils,  to classify documents deemed a threat to state security – I hope that they remember that often a restriction on information in the long term is more dangerous for those in power than openness and transparency could ever be.

Who guards the guards?

Jan 25th, 2011
by Pierre De Vos.
21 comments

An attorney is supposed to be an honest person who adheres to the highest standards of professional conduct. (I assume it is at this point that the cynics out there are starting to snigger, but hear me out.) Sadly, attorneys (like members of most other professions) do not always live up to these stringent standards of ethical conduct expected by their profession.

Anyone familiar with Afrikaans movies and TV series of three or four decades ago will recall the often used storyline of the heroine’s father — an attorney — who is disgraced after misappropriating trust funds and is then struck off the roll of attorneys. The family is then financially ruined and the heroine — played by actresses with names like Zaza Vorster or Sybil Coetzee – has to go and work as — gasp! — a waitress in a cafe in a small town in the Karoo where an eligible bachelor (usually a teacher played by a guy called Hans Strydom) with a dark secret of his own (no, not that he is secretly gay) is waiting to fall in love with her.

(This was almost as bad as the unmarried heroine falling pregnant, in which case she was banished to Pofadder or — if it was a big budget production — to Paris in France to have the baby and to wander around the cobblestone streets of Paris for ten minutes  in a big winter coat and heavy make-up while weeping violins emphasised the sad fate of the “fallen woman”, before she jumped in the Seine and drowned and was thus suitably punished for having sex out of wedlock.)

I am digressing. The point is that misappropriating the trust funds is — as the Supreme Court of Appeal remarked in the case of Law Society of the Cape of Good Hope v Budrick - “about the worst professional sin that an attorney can commit”.

Hans Jurie Zietsman is one of the (now former) attorneys who did just this. He was therefore recently struck off the roll by the Cape High Court in a judgment reported as The Law Society of the Cape of Good Hope v Zietsman. In such a case, the Law Society – acting as the statutory custos morum of the attorneys’ branch of the legal profession and as protector of the public in their dealings with that profession — approaches the court, provides the relevant evidence and requests that an attorney be struck off the roll.

What makes the case of Mr Zietsman of interest is that the Court had some stern words for the Law Society who seemed to be less than diligent in exercising this very important duty. The Court, per Dlodlo J and Binns-Ward J, complained about the lack of evidence placed before the court by the Law Society. As the Court explained:

in matters like this, particulars of the manner in which the misconduct is discovered and the reaction of the delinquent attorney in the particular circumstances are issues which might become of interest later should the attorney apply in the future for re-admission. If that should occur, the court seized with the re-admission application will always look at the judgment in the striking off matter to see how these issues were treated there. It would, for example, be significant for that purpose if it were to appear from the striking off judgment that the delinquent attorney had turned him or herself in, rather than being reported by a client, or discovered in the context of an audit to have been plundering the trust funds. On the state of the founding papers in this matter, however, we were none the wiser because the narration of events appeared to begin with what read as if it should have been the second chapter.

In short, the Law Society was not as diligent as it was supposed to be. Worse, it took more than nine months from the time that the misappropriation became known, before the proceedings to have Mr Zietsman struck off the roll were instituted by the Law Society. Because the Court considered this delay to be “unsatisfactory on the face of it”, it requested an explanation from the Law Society.

However, when such an explanation was provided this was also found to be unsatisfactory by the Court. As the judgement explains:

In matters in which it is appropriate for the court to determine in its discretion whether a delinquent attorney’s name should be removed from the roll, it is the duty of the law societies to bring the relevant facts to attention of the courts without delay. The degree of urgency with which these matters must be attended to will obviously be affected by the extent to which the public might be exposed to danger by the attorney in question remaining active as a practitioner; but in all cases in which a striking off or suspension order might be appropriate expedition is required. The somewhat leisurely course that preceded the launch of these proceedings is therefore to be deprecated.

Even in cases in which the attorney has ceased to practise, it is inimical to the high status and esteem in which the attorneys profession should, in the public interest, be generally regarded if persons whose names should not be on the roll in consequence of their defalcation of clients’ money remain registered as attorneys any longer than practicably necessary. This much is inherent in any achievement of the object of maintaining and enhancing the prestige, status and dignity of the profession; the very first of the objects of a law society listed in s 58 of the Attorneys Act. Thus in all striking off applications, even where no considerations of urgency are involved, there is nevertheless a duty on the society concerned to institute proceedings expeditiously. That duty was not satisfactorily discharged in this case.

I am not an attorney, but I would imagine that the average attorney in Cape Town would be rather perturbed by this cavalier attitude of the Law Society and its tardy behaviour which might have placed the reputation of the attorney’s profession at risk and might well have been severely detrimental to members of the public who might have made use of the services of the attorney who was already known to have misappropriated trust funds.

One would expect this kind of thing from officials at CIPRO, not from officials at the Cape of Good Hope Law Society who are the legal custodians of the attorney’s profession and must protect the public from skelm lawyers who want to steal their money. One wonders if those involved in this case have been reprimanded or disciplined to prevent an occurrence of this rather lackadaisical behaviour or whether they are merrily continuing not to do their jobs properly. Lastly, one wonders what ordinary attorney’s can do to ensure that the body tasked with protecting their interest, the reputation of the profession they belong to and the interest of the public dealing with attorneys does its job properly.

Sed quis custodiet ipsos custodes?

A decision to promote an impartial civil service

Jan 24th, 2011
by Pierre De Vos.
43 comments

Anyone who has ever watched the classic BBC TV series Yes Minister and Yes Prime Minister, would know that a completely impartial civil service might be more of an ideal one ought to strive for than an actual reality that is always achievable. Either the civil service is fatally politicised in which case political decisions always override decisions based on common sense and efficiency, or the civil servants run the show, in which case they make decisions that are in the best interest of the civil service (rather than the country).

Set principally in the private office of a British government cabinet minister in the (fictional) Department for Administrative Affairs in Whitehall (the sequel was set in the Prime Minister’s offices at 10 Downing Street), the series follows the senior ministerial career of The Rt Hon Jim Hacker MP, played by Paul Eddington. His various struggles to formulate and enact legislation or effect departmental changes are opposed by the will of the British Home Civil Service, in particular his Permanent Secretary, Sir Humphrey Appleby, played brilliantly by Nigel Hawthorne. His Principal Private Secretary Bernard Woolley, played by Derek Fowlds, is usually caught between the two.

Well the South African Constitution attempts to address this difficult problem. Section 197(3) of the Constitution makes for interesting reading. This section states that: “No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause.” This section must be read with section 195(4) which states that some members of the public service could be appointed “on policy considerations” although legislation must regulate such appointments.

This means that the Constitution requires the civil service generally to be non-political, but that it also allows the appointment of a small number of individuals in strategic positions at a senior level for political and policy reasons. It therefore attempts to strike a balance between the need for an impartial and non-political civil service on the one hand, and the need to employ policy advisors and senior civil servants who would actually share the political views of the incumbent party and would enthusiastically ensure the effective implementation of the policies of the incumbent political party.

Where a political party loses a national or provincial election, the incoming administration would therefore generally be prohibited from firing civil servants merely because they were appointed by the outgoing administration or merely because they share the views of or support the political party who governed the country or the province until their defeat at the last election. While strategic “cadre deployment” in the civil service would therefore usually be permissible, it would usually not be permissible to fire the “deployees” of the outgoing government merely because they do not share the views of the incoming administration.

Of course, this does not mean that political parties do not ignore the provisions of section 197(3) and that the civil service has not been politicised to some degree. Because it is often very difficult to prove that someone was appointed for political reasons (even to a “non-political” post) and because most applicants for jobs in the civil service only apply for those posts if they broadly support the political party governing the country or the province where they seek employment, these cases seldom come before the courts.

This is why the CCM arbitration award handed down in December in the case of  Thonono & 12 Others v Department of the Premier: Western Cape Provincial Government is of some interest. It reminds us of the general principles which are not always honoured by either one of the two major political parties.

In this case the incoming DA administration in the Western Cape (taking over from the ANC) decided to terminate the contracts of several individuals appointed by the ANC administration. They claimed this was allowed because the contracts actually allowed for a unilateral termination and, alternatively, that this was done for operational reasons (because the posts in which these people served were abolished by the new administration).

The CCMA confirmed that clauses in fixed term employment contracts which allows for the automatic dismissal of employees were not valid as these purported to allow the parties to an employment contract to amend the provisions of the Labour Relations Act. If this was allowed then an employer would be able to force an employee to waive his or her constitutional and legislative employment rights by entering into a certain type of employment contract.

This would be against public policy, because employers are usually in a stronger position than employees and could then force new employees to waive their employment rights by signing contracts that would take away all or most of the legal protection afforded to employees by the labour law.

But, the CCM award also confirms that political decisions to terminate the employment of employees appointed by the outgoing administration which was controlled by another political party would usually not be allowed. It stated in this regard as follows:

The decision by the new political leadership not to honour the contracts of employment for the full duration of the fixed term contract of employment, i.e. until 30 June 2011 must surely be tested to be in compliance with both section 185 (the right not to be unfairly dismissed) and section 188 (that any dismissal, in order to be fair, must be based on incapacity, misconduct or operational requirements and in accordance with a fair procedure). It can most certainly not be left for a political .party or leader to make a political decision at the expense of the concept of fair labour practice, which is a constitutional right accorded to all employees.

The CCM also rejected the argument that because Premier Helen Zille had decided that the jobs done by these employees were going to be abolished this in itself could justify the termination of their employment. One could, of course, prove that for operational reasons a certain job has become redundant and then a person’s employment could be terminated if this was done ina procedurally fair manner.

One cannot make a political decision that a certain job would be abolished (without proof that it was indeed operationally required to abolish this job) and then justify the firing of the person holding that job. If this were to be the case, every time the ANC or the DA took over a provincial government of a province or the governing of a municipality it would just be able to make a political decision that those jobs held by appointees of the previous administration would be made redundant in order to get rid of all the employees which did not support their political party.

Although the CCM does not make a finding on this, the employees in this case obviously believed that they were really fired by the incoming DA administration because they were ANC appointees. In other words, there might have been some cadre deployment (of the DA kind) happening here. The CCM rejected this kind of cadre deployment and stated as follows:

I have great difficulties in agreeing with Adv. Stelzner’s submissions that the applicants’ dismissal were substantively fair simply on the basis that the termination came about as a result of the decision taken by the Premier and cabinet. No substantive evidence whatsoever was led as to why it was necessary for this decision to be taken prior to the expiry of the applicants’ fixed term contracts of employment. Political decisions need to be taken keeping in mind the right of employees to fair labour practices and more specifically the right not to be unfairly dismissed. On the evidence placed before me I do not believe that, other than the decision being a political one, there was a substantively fair reason for the applicants’ dismissals. I do acknowledge the right that an employer has to restructure its business, but the reasons for restructuring needs to be tested against the requirement of fairness.

Of course the DA will probably not like this CCMA finding, but in principle it should welcome it as it reaffirms the general principle that politicians should not be allowed to fire civil servants merely because they do not share the political views of the incumbent party (which, except in the Western Cape and in some municipalities) would be the ANC. This decision could therefore be viewed as an anti-cadre deployment decision.

If a DA city council (in Cape Town or elsewhere) were to lose the local government election in April and the ANC were to win back a municipality from the DA, the principles reaffirmed in this award would come in handy for DA appointed civil servants. Obviously if the DA won over municipalities now governed by the ANC the same principle would apply. But that is the thing with a good human rights principle: it applies to everyone and binds everyone (whether they are DA or ANC); it protects individuals from the abuse of power – no matter whether that power is exercised by the ANC, the DA or some other political party.

That, so it seems to me, is a good thing.

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