The arrest of Sheryl Cwele, wife of the Minister of State Security Siyabonga Cwele, on drug trafficking charges is in many ways a remarkable event. Cwele and co-accused Frank Nabolis (who, playing into prevalent xenophobic attitudes, have consistently been identified by the media as a Nigerian) face three charges: dealing or conspiring to deal in drugs; procuring a woman to collect drugs in Turkey and arranging for another woman to smuggle cocaine.
Given the (probably unlawful) manner in which charges against President Jacob Zuma was dropped, and the unceremonious manner in which Parliament got rid of the Scorpions who had the cheek to go after ANC bigwigs, many South Africans would have formed the firm impression that politically well-connected individuals are above the law.
The arrest of Cwele, whose husband is South Africa’s spy chief and thus a very powerful member of the cabinet, signals that the criminal justice system is not nearly as corrupted by political nepotism as one might have suspected. Regardless of whether Cwele is eventually convicted or not (a matter for our courts to decide on), it bodes well for the system that such a high-powered and well-connected individual could be arrested on suspicion of drug trafficking. Somewhere, somehow, some people are doing their jobs, which comes as a great relief after the trauma of the Zuma stitch-up.
Sadly, the government has not dealt with this potential scandal in the most effective and wise manner. I happen not to agree with national Police Commissioner Bheki Cele, who recently lambasted e.tv for broadcasting claims by alleged criminals (who, like Cwele, must be presumed innocent until proven guilty in a court of law) that they will target tourists during the world cup. ”A friend of a criminal is a criminal – e.tv clearly is a crime kisser. They’ve exposed themselves as such,” Cwele said at the time.
If one follows Commisioner Cwele’s “logic” (I use the term rather loosely here), our Minister of State Security is a criminal as he is actually married to someone who is alleged to have committed a crime. That is of course nonsense. Minister Siyabonga Cwele is not a criminal merely because his wife is being charged with drug trafficking.
We simply do not know what transpired in the Cwele household, whether the Minister had any inkling of his wife’s alleged nefarious activities or whether the Minister had been asked by his wife to use his power and influence to try and prevent her arrest. The Police Commissioner obviously thinks differently, but it would be unfair to judge or punish Minister Cwele on the basis of what his wife might or might not have done.
However, this does not mean that the arrest of the Minister’s wife is a private matter. It was therefore rather unwise of the government to avoid all comment on the matter and to pretend that this very embarrassing and politically explosive arrest of the Minister of State Security’s wife never happened. Given the fact that the Ministers are constitutionally accountable to Parliament and indirectly to the public at the very least the Minister had a duty to the public to reassure us and to issue a statement in which he made it clear that – without prejudging the case against his wife in any way – he wanted to state categorically that he personally had absolutely no knowledge of any alleged drug trafficking.
The President also had a duty to meet with the Minister to talk about the possible need for the Minister to temporarily step aside. Section 96(2)(b) and (c) of the Constitution states that Members of the cabinet may not:
act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.
This obligation on Ministers regarding conflicts of interest is quite stringent. In this regard the Constitution is quite clear: Regardless of whether there is indeed an actual conflict of interest or not, a Minister has a constitutional duty to avoid any situation where there is a mere RISK of a conflict of interest between his official duties and his private interests.
One assumes the Minister has a private interest in seeing that charges against his wife are dropped or at least that she is acquitted of the charges. But the Minister is also officially the spy chief with access to wide network of spies who – we know from the Zuma saga – can eavesdrop on prosecutors and witnesses and could potentially influence the outcome of the case. The question is not whether the Minister will indeed abuse his power to try and find out more about the case against his wife or to try and undermine the state’s case. The constitutional question is whether there is any risk that this may happen.
Clearly there is such a risk. Saying this does not in any way prejudge the matter as one is not making any comment about the honesty and integrity of the Minister. Instead, one is stating an objective fact, namely that a risk of a conflict of interest exists. This means constitutionally speaking, the Minister has a duty to step aside from his post until the case against his wife has been concluded. If he fails to step aside he will inevitably be embroiled in a situation where there is a risk of a conflict of interest between his official responsibilities and his private interests.
Such a move would in no way signal that the Minister’s wife is guilty or that the Minister himself is somehow to be punished for something that his wife is alleged to have done. It would merely uphold the Constitution which requires a Minister to avoid any risk of a conflict of interest. This might be hard on the Minister – as it is hard on the spouse of any person charged with a crime – but it is required by principles of good governance and by the Constitution.
The fact that the ANC-led government has not reacted officially to the news at all and the fact that the President has not met Minister Cwele to request him to step aside temporarily, suggests a failure by the government to appreciate the importance of avoiding the risks of conflicts of interest. It represents a spectacular failure to display respect for ethical and appropriate behaviour by public officials. It also places a question mark over the government’s willingness to abide by the provisions of the Constitution.
Minister Cwele must step aside. If he does not, the government will be flouting the Constitution.
Feb 1st, 2010 by Pierre De Vos:
“the President has not met Minister Cwele to request him to step aside temporarily, suggests a failure by the government to appreciate the importance of avoiding the risks of conflicts of interest. . .”
I get the impression that our President is a very, very busy man, perhaps he just doesn’t have the time to meet with cabinet ministers!
Are we surpised?
Actually, I was wondering what the state of play was in the internal politics of the ANC, and with KZN politics. For instance, was Minister Cwele ever an “Mbeki man” (of course, many of these became “Zuma men” when they saw which way the wind was blowing). Or, was he ever a S’bu Ndebele man (as opposed to a Zweli Mkhize man)? Or, what is the relationship (including historically) between Minister Cwele and Minister Mthethwa, or between Minister Cwele and Minister Radebe?
I’m not surprised at all. Either at the lack of response or the alleged criminal activities. The rot starts at the top and its spreading fast….
“It also places a question mark over the government’s willingness to abide by the provisions of the Constitution.”
When it comes to serious challenges facing South Africa, is the Constitution today any more than paper from which mesmerizing spin is showered on the unsuspecting populace for their vote? Apart from matters which has little bearing on elitist freedoms, does it provide more than billable hours for those within the system of law and justice?
Sirjay, you need to realise that the Constitution is merely “tourist legislation” designed to impress outsiders about how progressive South Africa now is.
It is indeed sad that the Constitution is not even worth the paper it is written on, particularly also when those in power set such an incredibly weak, corrupt and morally questionable example at every level of society. Is it then any wonder that the outside world has such a bad view of Africa and South Africa (on the list of the most corrupt countries in the world, SA occupies position 55/180 countries – anything less than position 20 is considered corrupt; the first African country appearing on its list being Botswana at position 37: source = transparency international;); is it any wonder that, in the minds of others, South Africa will generally remain a developing country plagued by corruption, bribery, etc. as opposed to a country moving towards becoming a developed country; it is any wonder that its people may take the law in their own hands too at some future point in time, etc.? I certainly hope that this will not happen respectively if they haven’t started doing it already.
Snowman: ‘tourist legislation’, very good, describes it succinctly, and unfortunately, accurately. But surely the Constitution is still an anchor, hardly satisfied with being paper, and there must be ways to hold it successfully to its protection of all the people. Is it that we lack will, or perhaps new and visionary approaches yet unrealized or activated, to thus enable our precious country in utilizing it’s legislated brilliance. We know the problem, but not yet the method or answer to ensure its intended protection of society.
They are so short sighted, desiring instant gratification, those who disparage and ignore this Constitution.
Chris says: “…I get the impression that our President is a very, very busy man, perhaps he just doesn’t have the time to meet with cabinet ministers …”
That must be the greatest understatement of the year Chris. Between getting married, loving all his wives equally and fathering babies; where in the world do we expect the President to find the time to meet with cabinet ministers?
Although there have been many instances where one should have, has any minister ever stepped aside in the ANC government?
Snowman, Andy and Sirjay – Of course Zuma will be saying (not in public mind-you, perhaps in those rare private meetings with cabinet members when he gets respite from his other private life): “Ha! And why am I supposed to be afraid of that ‘paper tiger’ that they negotiated under my predecessors? It nearly brought about my downfall, had it not been for swift action by you, my comrades. Now I am the President, L’Etat ces’t moi and all that stuff. I will hire the Director of Public Prosecutions at my whim, and, of course, taking into account his impecable CV. Now this drug-trafficking thing, if that brings an extra income into the coffers of the party, why should I fire my chief spy who facilitated it? I say, to hell with the constitution, we will rule until the Second Coming, come what may.”
I am of the opinion which is not any different from my fellow Zimbabwean asylum seeker friends in SA, “make hay while the sun shines”
In terms of the Intelligence legislation the South African Secret Service [SAS] has the function inter alia of spying on and ferreting out international drug trafficking – and to warn/advise government about it. Cwele is the minister in charge of [ responsible for ] SAS – so he has insight in their secrets and reports.
It seems Zuma made his friend, the jackal, in charge of the sheep. Did he warn his wife [ and her network ] of SAS activities???
Surely this minister can’t have a security clearance.
Dear Pierre,
I have been visiting your blog for little over a year now. Although I more often than not do not necessarily agree with your views or opinions, I generally regard them informed by progressive thinking and noble intent. I also take the time to read the comments to your articles. Sadly though over time the comments have become more and more rancid and acidic. Initially the comments were informed by a need to engage and widen discussion, my only gripe then was that it may have been a bit too legalistic, but I could live with it. However, currently, your comments section seems to be dominated by a serious and uninformed anti-ANC group of individuals that are using (or exploiting) your honest and progressive interaction for their own reactionary and emotional purposes. It gives the impression that yours is a right-wing blog and a platform for conservative reactionary individuals. I have never met you, but I hve read enough of your postings and articles to believe that you are progressive and intend only to widen discussion. These individuals who take every posting by you to deliver smart-alec one-liners that are anti-ANC does your objective no good and a complete disservice. I just hope I can stomach them and do not stop reading your postings because of their inane comments.
Donovan, will the ANC ever tire of heaping shame on our country?
@ Pierre,
“We simply do not know what transpired in the Cwele household, whether the Minister had any inkling of his wife’s alleged nefarious activities or whether the Minister had been asked by his wife to use his power and influence to try and prevent her arrest.”
We now know.
They have been apart for the last five years.
Does that change anything or do we still bay for the Minister’s blood.
I certainly regret having challenged the Minister’s integrity and his capacity to lead Intelligence on the basis of reports about his wife’s connection to drug dealing.
Maggs, yes it does change things. What is beyond me though is that politicians in general and government Ministers seem to think such issues is of no concern to the public and that they do not have any duty to clarify matters to inform voters and citizens. Ministers – as well as our President – has a very impoverished notion of accountability. In a democracy, politicians (whose salaries we pay and who wield enormous power which opens them up to the risk of enormous conflicts of interest) is accountable to the electorate – even if this is a nuisance or sometimes embarrasing. This is how a good democracy functions. If I was an advisor of the Minister I would have asked him to issue a very brief statement on the day of the arrest, confirming that I was still married to the accused, but that I have lived apart for five years. That would have been the end of the story.
Pierre De Vos says:
February 4, 2010 at 7:36 am
Agreed.
The Minister ought to have said something much earlier.
It does not say much for the media either – this is something that they ought to have picked up as soon as the story broke.
@ Pierre.
Now it seems that I was hasty in regretting my views.
“It was not true that State Security Minister Siyabonga Cwele and his drug trafficking accused wife Sheryl have been estranged for five years, a court heard.
“Sheryl Cwele’s lawyer Mvuseni Ngubane told the Pietermaritzburg High Court the couple had spent the December holidays together in Mozambique.
“The allegation is a lie. It does not exist,” he said.
http://www.timeslive.co.za/news/article293574.ece
I think a bit of fence sitting is appropriate until we are better informed.
@ Maggs
ANC Approach- Catch me if you can!!!!!!!!!!! or Show me yours(facts) and I will show you mine!!!!!!!!!!!
@Maggs & Pierre
New developments, according to Sheryl Cwele’s lawyer, suggest that the Minister and his wife have actually never separated as it was reported in the media. The two are said to have spent the holiday together in Mozambique recently. In fact the Minister showed up in court today to support his wife in her bid to get bail while awaiting for her trial to resume in October this year.
See the link below: http://www.news24.com/Content/SouthAfrica/News/1059/6748120e4a5542cdaf037618b531ca96/05-02-2010-04-13/Cwele_granted_R100_000_bail_
Does this provide enough prima facie ground for him to have possible known about his wife’s illegal activities on the basis of whicch he should or shouldn’t he step down?
@Maggs & Pierre
New developments, according to Sheryl Cwele’s lawyer, suggest that the Minister and his wife have actually never separated as it was reported in the media. The two are said to have spent the holiday together in Mozambique recently. In fact the Minister showed up in court today to support his wife in her bid to get bail while awaiting for her trial to resume in October this year.
See the link below: http://www.news24.com/Content/SouthAfrica/News/1059/6748120e4a5542cdaf037618b531ca96/05-02-2010-04-13/Cwele_granted_R100_000_bail_
Does this provide enough prima facie ground for him to have possible known about his wife’s illegal activities on the basis of which he should or shouldn’t step down?
mayimele says:
February 5, 2010 at 14:50 pm
“Does this provide enough prima facie ground for him to have possible known about his wife’s illegal activities on the basis of which he should or shouldn’t step down?”
It seems that the Minister also went on “holiday” with his not so estranged wife.
But it was Mozambique so no inferences can be draw aside from that he probably cannot resist a good prawn!
Quote:
“The arrest of Cwele, whose husband is South Africa’s spy chief and thus a very powerful member of the cabinet, signals that the criminal justice system is not nearly as corrupted by political nepotism as one might have suspected.”
Sorry, Prof, but I think that you are being naive here and giving the government, Police and Justice department far too much credit.
The reason that charges have been brought is that hard and seemingly incontravertable evidence has been uncovered and brought into the public domain, in the form of e-mails, cellphone conversations etc.
The family of Ms Beetge would have gone the private prosecution / Nolle prosecui route had the authorities failed to act.
The Cwele’s have also reportedly been separated / living apart for a number of years (if not, it is a good excuse, and provides a good “out” for the minister) , so Cheryl would appear to be expendable – no cadre to protect here.
The justice system seems to me to be totally corrupted by political nepotism – the ANC is just choosey about which cadres it protects, and which are expendable.
“Family trips show a very married Mr and Mrs Cwele
“‘We are not estranged’. Contacted by cellphone this week, Sheryl said media reports citing “intelligence sources and ANC members” that she and her husband are estranged are “not true. We are not estranged and we’re living together. But I cannot say anything more, as my lawyer has instructed me not to speak to the press.”
http://www.mg.co.za/article/2010-02-12-family-trips-show-a-very-married-mr-and-mrs-cwele