Constitutional Hill


Return of the Groot Krokodil?

A few months ago Die Burger and Beeld carried a remarkable series of articles written by Riaan “Koedoe” Eksteen, who used to be the director general of the SABC back in the apartheid days when PW Botha was the State President of South Africa. With an astonishing lack of insight or remorse, Eksteen wrote about his rule at the SABC (which was in effect a mouth-piece of the National party) and the stormy relationship between himself and the then State President.

Old finger-wagging PW (also known as “Die Groot Krokodil” – The Big Crocodile) used to call Eksteen regularly to complain about the SABC – especially the news programmes – and on one occasion even ordered Eksteen to “correct” the news bulletin while it was still in progress – something Eksteen happily did.

Botha also complained to Eksteen (he claimed on instructions of the State Security Council) about the broadcasting by the SABC of the science fiction programme called “V”. This series chronicled the arrival on Earth of a technologically advanced alien race who ostensibly come in peace but actually have sinister motives.

PW Botha complained that in the programme the ostensibly human-like aliens turned into crocodiles at night and ate the humans. He saw it as a personal attack on him (being called Die Groot Krokodil” and all) and when Eksteen agreed to move the programme to a later slot and to broadcast the episodes nightly to speed up its completion, Botha apparently remarked: “You can obviously not wait to see the country go up in flames.”

Since those dark days the SABC has come a long way. Although it has recently been in the news because of mismanagement and corruption and although the news programmes are far from independent (it clearly had a pro-Mbeki bias before the Polokwane conference), there has not been the same kind of scandalous direct interference by politicians as during the Botha era.

This might all change if the Public Service Broadcasting Bill, hastily published for comment last week, becomes law.  The Bill has the look and feel of an apartheid era piece of legislation, and contains phrases right out of the Christian Nationalist playbook. For example it states that the South African Broadcasting System must, inter alia, strengthen “the spiritual and moral fibre of society”. The last time I read about the “moral fibre of society” was during the reign of “Die Groot Krokodil” and to see this reactionary phrase repeated in draft legislation prepared by the ANC government comes as quite a shock.

The Bill is also, bizarrely, littered with typographical and other errors and in places reads like something cobbled together by Julius Malema and his dyslexic woodwork teacher. For example section 22 states that the affairs of a community broadcaster shall be “controlled by the Governing Council Governing Counsel (sic)” while section 25 states that Community Broadcasting Service “…shall be partnership  (sic) with municipalities…” and this partnership shall include “availability of information about development to by (sic) local municipalities”. Section 33(b) states that the “powers and actions contained in subsection 30(a) shall occur (sic) in cases where….”, but section 30(a) contains no powers and actions so the section on its face make no sense – even if one thinks that powers can “occur”. Section 35(3) states that “[i]n case of case (sic) the fine shall be paid into the PSB fund…”

But these are really minor if embarrassing problems compared to the other aspects of the Bill. Section 4 proposes the establishment of a Public Service Broadcasting Fund which shall be financed by raising no more than 1% from all us through a personal income tax levy. This makes the Bill a Money Bill as it purports to impose “national taxes, levies, duties or surcharges”, but section 77(2) of the Constitution makes clear that ordinarily a money Bill can only deal with money issues, which means this Bill dealing with broadcasting cannot impose any taxes.

Section 73(2) states that only the Minister of Finance can introduce a Money Bill in Parliament. The person who included these provisions in the Bill clearly did not pay attention during his or her Constitutional law class and did not bother to read the relevant sections of the Constitution before releasing the Bill for comment.

The Bill also proposes that the money raised by the 1% income tax will be disbursed by the Public Service Broadcasting Fund according to criteria developed by it but approved by the Minister and those who receive money must be subject to the Public Finance Management Act (PFMA). Anyone who has ever read the PFMA would have been able to tell you that if community broadcasters were subject to the provisions of the PFMA, they would – as Anton Harber stated earlier this week – have to close down within weeks because they would not be able to meet the onerous obligations imposed by this act.

Large parts of the Bill might also be unconstitutional because it infringes on section 192 of the Constitution which states that “[n]ational legislation must establish an independent authority [ICASA] to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”.

The power of ICASA as guaranteed by the Constitution is severely limited by this Bill while the powers of the Minister to interfere in the SABC is enhanced. The Bill states that the minister (and not ICASA as required by the Constitution) “is ultimately responsible for the effective monitoring of the implementation of the act”. Thus the Minister is empowered to  direct any of the entities mentioned in the Act (including ICASA and the SABC Board) to take any action in regard the act if that entity is unable to perform its function in terms of the act.

The Minister may also instruct the SABC board to take any action specified by the Minister if the SABC has failed to follow the instructions of the Minister in terms of the Act or has acted unfairly towards any person to whom it owns a duty in terms of the act.  This means if the Minister thinks the SABC has acted unfairly towards any employee of the SABC or any member of the public (maybe by not providing sufficient coverage of ANC or government events or by firing a corrupt SABC staffer!), he could instruct the SABC board to “correct” its “mistake” and if the board fails to do this, he will have the power to recommend the firing of the the board to Parliament.

The Bill is not a model of clarity, to say the least, but it is clear that the  intent of its drafters was to give the Minister a decisive say in the running of the SABC and to empower him to interfere with the day to day running of the SABC.

This is scary stuff.

I wonder what Koedoe Eksteen would make of this Bill.

Cape Town a racist city?

In our little visdorpie an argument is raging about whether Cape Town is a racist city. The argument was sparked by a report written by Dr Sabie Surtee and Prof Martin Hall of the UCT Development Policy Research Unit, which found a widespread belief amongst black African professionals working in Cape Town that the city is “hostile to black people”.

Premier Helen Zille dismissed this report by stating that it must be judged against the background of a broader ANC propaganda campaign which fuels the “myth” that Cape Town is a racist city hostile to black Africans. It was fanned by a small politically connected black business elite who are unhappy that the DA city and provincial government are preventing them from corruptly benefiting from state tenders – despite being African and ANC-aligned.

She argued that the methodology of the study was flawed because it focused on only a few companies and interviewed only African employees whose feelings and views were not subject to critical scrutiny and verification with reference to the “facts”. While Cape Town has its share of racists (like everywhere else in the country), it was those who stated that Cape Town was a racist city who were themselves racist as they were making pejorative generalisations about a whole city based on the views of a few.

It seems to me the Premier is being somewhat disingenuous.

While she might have a point that the racism narrative is being fueled by the ANC and its cronies who are unhappy that the DA is in charge of the city and the province – depriving the ANC-aligned elite of automatic access to lucrative contracts – this does not address the larger issues regarding the structural racism and dominant culture of white superiority in Cape Town.

It would have been more honest (and politically more astute) for the Premier to engage openly with the report of my colleagues and to recognise that many Africans do feel alienated and marginalised in Cape Town and that this is at least partly because of racism. This is about more than access to tenders or ANC propaganda and goes to the heart of what we mean when we talk about transformation.

The Premier’s response is unfortunate as it dismisses the sincerely expressed feelings of all those Africans interviewed for the report. “You might feel discriminated against and marginalised because you are black,” she seems to say, “but what you feel and experience is not real. Let the madam tell you what you should really feel and how you should really interpret the experiences of racism you have encountered in our city.”

This is familiar territory for everyone who has been at the wrong end of racial discrimination in the new South Africa.  Unfortunately many white people, secure in their own white world and uncritical about their own assumptions of “merit”  and “fairness”, wrongly believe that racism is by and large a thing of the past and that black people are “too sensitive” or are “imagining” the racism they experience every day. Such individuals do not realise that their world view and experience of reality is shaped by often implicit (but unspoken and unexamined) assumptions about white superiority and black inferiority.

These assumptions remain largely unexamined because they are not seen as part of a specific white dominated culture. In a place like Cape Town still dominated by a white hegemonic culture, only “others” are seen as basing their experience of the world on problematic assumptions. Because the white hegemonic assumptions are so deeply embedded in our city’s culture, they appear normal and natural (“it is just the way life is”) while the experiences of those who do not share the same culture and hence do not rely on the same unspoken assumptions are dismissed as “wrong”. Their experiences are not accepted as true, because it does not accord with the way in which we ourselves experience the world.

When a black person is denied entry to a venue, treated with disrespect at a shop or when a black person complains about being made to feel unwelcome at the workplace, it is assumed that this has nothing to do with racism. Either the black person must be to blame (she was not “properly” dressed, she was “making trouble”, she was being “difficult” or “lazy”), or the insult is dismissed on the basis that it was not based on race but on the idiosyncrasies of the individual who acted badly.

If we really want to engage with deep transformation, we need to be honest about the fact that different people from different races and cultures often experience the world differently. We need to accept than when such a large group of African professionals say that Cape Town is hostile to black people, there is something wrong – even if we cannot easily see this because it does not accord with our own experience. Denying that anything is the matter is deeply insulting and dehumanising. It dismisses the real lived experience of a group of people just because they do not experience the world in the same way as their white counterparts.

Moreover, Zille’s response is particularly insulting as it comes close to dismissing all the black people who complain of racism in Cape Town as dishonest and corrupt. That is called “blaming the victim”.

Surely a more honest response would have been to take the complaints seriously, to admit that there is indeed a problem and to propose ways of addressing the very real concerns of the many black people who have made Cape Town their home. Like an alcoholic who can only begin to manage his illness after admitting to having a drinking problem, Cape Town can only begin to address the problem of structural racism when its leaders admit that there is a problem in the first place.

Merely blaming the ANC – no matter how tempting that might look – just reinforces the same old patterns and do not bring us closer to a solution. Such a solution would require some critical self-reflection on the part of those of us who are not African, perhaps by asking: what have I done to understand the reasons behind the alienation felt by many Africans in Cape Town and what have I done to address this.

Wanted: a culture of accountable democracy

What do we mean exactly when we talk about our South African democracy? Some among us (as one of our former Presidents used to say) seem to believe that democracy is only about five-yearly elections in which the ANC gets a mandate from the people to govern the country in between elections as it sees fit. Others think  democracy is about allowing ANC members (regardless of who paid for their membership fees) to elect a new leadership and adopt policy positions at its five-early conference, coupled with oversight of the government by the elected ANC leaders at Luthuli House.

Others, yet again, believe (maybe because they will never win elections) that democracy is about “effective opposition” and about opposition parties shouting and screaming and moaning bitterly about the excesses of the governing party. The rich and powerful often seem to think democracy is all about making large donations to political parties or befriending politicians by lavishing them with shares, whiskey and cash in order to secure political influence and contracts or to “buy” the economic and political stability required to continue making obscene amounts of money for CEO’s and shareholders.

And, of course, in selfish South Africa, democracy for many means no more than always getting your own way and screaming blue murder and complaining about a scandalous infringement of your rights (maybe because of a conspiracy/racism/”reverse-racism”/arrogance/or abuse of power) when what you want is not handed to you forthwith.

In South Africa – so its seems to me – most of us are in favour of democracy (even if some are more grudging about the need for this than others), yet we do not share an understanding of what such a democracy should look like. Maybe it is time to start a discussion about the nature of the kind of democracy we would like to see flourishing on this southern tip of Africa.

As a constitutional scholar, my starting point is the Constitution, most notably section 1(d) which states that ours is a sovereign and democratic state based on “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Accountability. Responsiveness. Openness.

Of course, our Constitution contains all the formal trappings of democracy, which the Constitutional Court has stated contains aspects of both direct democracy (regular elections) and participatory democracy (the right of citizens to take part in the decisions of the legislature and executive). However, in the absence of a culture of accountability, responsiveness and openness, these formal trappings of democracy cannot provide us with more than an impoverished form of democracy.

What is required, it seems to me, is for the political, community and business elites to embrace a culture of justification (as Prof Etienne Mureinik memorably called it) within the disciplining framework of the Constitution. Such a culture of justification must not be equated with a legalistic and formalistic justification of outrageous, immoral or incompetent acts as this merely allows the powerful to hide behind laws, processes and structures to avoid real accountability to those who really matter: the ordinary, long suffering citizens who rely on the state and private institutions to create the environment which would deliver “a better life for all”.

A culture of justification would require ministers to do more than to point to the Ministerial Handbook to justify the purchase of outrageously expensive cars and extended stays in the most expensive hotels. A real culture of justification would require a mayor to explain why her team had never realised that the budget for the Cape Town BRT system was wrongly calculated and would not allow her to justify this by blaming a low-level official for the balls-up.

It would require a Minister to explain to Joe Slovo residence why they are being forced to move to far off Delft when other land much closer to the city (but too close to land owned by powerful business interests) were available. A Public Protector would have to explain why he needed a R7 million golden handshake for merely doing his job and how such a handshake would improve the lives of ordinary South Africans. A mayor would have to go to Phiri and justify to residents why their community was singled out for the installation of pre-paid water meters while the rich white folks in Sandton would continue paying for water only at the end of the month.

A culture of justification seems to me the antithesis of a culture of contempt, which treats voters as gullible children to be bamboozled and blinded with empty promises and legalistic arguments devoid of any ethical substance.

If our society embraced a culture of accountability it would not mean that those in power would always have to follow the wishes or dictates of the community to the detriment of the country or of other communities. Sometimes people in power must make unpopular decisions for the greater good, but when that happens, such decisions must only be taken after the needs of the affected communities have been recognised and considered and after the relevant person or body has accounted to those affected.

In such a democracy, the government of the day will not act contemptuously towards those whom they are supposed to serve, but would respectfully take their individual needs into account. Instead of top down democracy, a bottom up democracy will emerge. Although the needs of the few will sometimes have to yield to the interest of society as a whole, it will not be left up to bureaucrats  and political and business elites to decide what is best for communities (but really, would usually mean what is best for them and their friends) and then to implement the policies without having to justify their decisions to those it might affect.

Implicit in a culture of justification is a recognition of the need for an ongoing democratic dialogue between the rulers and the ruled, an openness to change and an understanding that different communities might need different things at different times.

In a constitutional state this dialogue will not necessarily lead to a kind of oppressive communitarianism, because the Constitution – especially the Bill of Rights – places constraints on everyone to act within the pre-determined rules which protect the marginalised and the vulnerable from the tyranny of the majority.

Of course a culture of justification can only flourish where people respect one another, where they talk and listen to each other and where disagreements are not dealt with by issuing insults and death threats. Sadly, most South Africans (and to some extent the media) seem to have a vested interest in the shouting and screaming as it serves their immediate political, emotional and class interests. But maybe, just maybe (I know I am hopelessly romantic and naive here), starting a conversation about the kind of democracy we want and deserve can begin to change all this.

Alleged ANCYL hate speech calls for swift action

South Africans are far too quick to brand stupid, irritating or offensive language as hate speech. For example, I, for one, am far from certain that the sexist and offensive statements made by Julius Malema regarding rape survivors and the complainant in the Jacob Zuma rape trial constitute hate speech and I would not be surprised if Malema wins his equality court case.

Statements that are racist, homophobic or sexist would not necessarily constitute hate speech – even in terms of the very broad (and possibly unconstitutional) provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Even using the “K’-word to describe a black person or m%#ffie to describe a gay man is not necessarily unlawful in terms of PEPUDA. Although such language is deeply offensive and those who use such words to describe others who are not like them are really beyond the pale, those who use such words would not usually be guilty of hate speech. (They would be guilty of being homophobic, racist or sexist fools, but that is another matter.)

Section 1o of PEPUDA states that “[n]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to- (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred”, while section 12 prohibits any person from making statements that “could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.

This is an objective test. One asks, after looking at all the evidence, whether a reasonable person would have had reasonable grounds to conclude that the statement was intended to be hurtful, to be harmful or to incite harm or to propagate hatred or whether it was intended to unfairly discriminate against anyone on the basis of race, sex, gender, sexual orientation or any of the other grounds listed in the Act.

There are two important factors that need to be present before a statement would fall foul of the PEPUDA prohibitions.  First, there must have been an intention to do damage and that intention had to be established on the basis of what could reasonably have been construed. Second, the statement had to have been directed at a specific person or persons and it must be shown that the intention was to hurt or harm or discriminate against that specific person(s). “Merely” expressing prejudice, racism or homophobia in general would not be sufficient.

(Even though section 10 and 12 of PEPUDA thus limit the scope of what speech would be prohibited, these provisions nevertheless go much further than the specific exceptions provided for in the Constitution itself. A good argument could therefore be made that section 10 and 12 of PEPUDA are unconstitutional because they are overbroad and prohibit speech protected by the Bill of Rights. But this is a complex issue so I will not elaborate on it here.) 

In any case, whatever the interpretation given to section 10 and 12 of PEPUDA, one thing is clear: if proven to be true, the statement by Free State ANC Youth League chair Thebe Meeko who allegedly called for Prof Jonathan Jansen, the University of Free State’s recently appointed vice-chancellor, to be “shot and killed because he is a racist” would contravene the Act. Meeko is reported to have said:

Like President Jacob Zuma when he said the police must meet fire with fire [referring to police shooting armed criminals], the shoot-to-kill approach must also apply to all the racists, including Jansen – because he is a racist. He must know that we have removed more powerful people than him before. Jansen is equally a criminal like those four racists.

The ANC has distanced itself from the statements and the DA has lodged an PEPUDA complaint against Meeko. The Times newspaper seems to have a video recording of Meeko making the statements as well, so one would imagine that the chances are rather good that Meeko would be found guilty of hate speech.

But these statements – if true- would be so shocking and would represent such an egregious attack on the values underlying our Constitution, that it would not be enough for Meeko to be found guilty and for the ANC to reprimand him. If convicted, the ANC should put its money where its mouth is and should expel Meeko. If it is true that The Times has captured Meeko on video saying these things (I am currently out of town and my computer here does not have sound facilities), then the ANC should not wait for the court case to be concluded but should immediately take action to get rid of this guy.

If he indeed said what he is reported to have said, he is a despicable human being. Surely he would then be hardly any better than those four Reitz boys who made the racist video and he should be treated accordingly. If the ANC fails to take action in the face of clear evidence of such hateful and dangerous speech, it would, sadly, be a sign that it has lost its moral compass.

Mbeki, “objective reality” and the truth

Former President Thabo Mbeki used to be fond of lambasting his critics for their failure to grasp the “objective reality” about any number of important issues. He would perceptively highlight and analyse the ways in which objectionable master narratives influence the way we perceive reality before claiming to be free from the grip of such narratives and thus (unlike us mere mortals) to have full access to the “objective reality” the rest of us just could not see – usually in an attempt to defend the indefensible actions of his government or himself.

Thus he would write a brilliant analysis of the ways in which a kind of Afro-pessimism and racism influenced the discourse in South Africa on crime and corruption, and how such discourses reflected the fears and prejudices of “some among us”, before abusing this insight to make completely laughable claims to defend himself and his government from the valid criticism leveled against it.

He would point out, correctly in my view, that fears about crime was entwined with some people’s fears about a black run government and that perceptions about crime could not be divorced from perceptions about the so called criminality of black men. When many white people spoke about crime this was a way for them to express their racism and fears about black people in a more “acceptable” manner. But then he would go on a tangent and claim that crime was not really a problem at all in our country and that complaints about crime itself was just a matter of perception not linked to any “objective reality”: who would ever be robbed walking to the SABC studios he once mocked, just a few days before a journalist from CNN and his wife were robbed at gunpoint outside the SABC studios in Auckland Park!

He would point out, once again correctly in my view, that negative, deeply embedded, but often unspoken assumptions about Africa and how Africans are “naturally” corrupt clouded the vision of “some among us” about the prevalence of corruption in South Africa. But then he would rail against the “fishers of corrupt men” in the media and deny that there was a corruption problem in South Africa at all. After all, the “objective reality” according to Thabo Mbeki was that there was no arms deal corruption, that municipal officials (all disciplined cadres of the ANC) almost never stole public funds, that officials of the Department of Home Affairs were almost all imbued with the spirit of Batho Pele.

He also pointed out, correctly in my view, that Pharmaceutical companies are often unethical and exploitative and care more about profits than about the health of people in poor nations. But then he would madly veer off into cloud kookoo land and question the link between HIV and AIDS (“A virus cannot cause a syndrome”, “HIV is a CIA plot”) to try and justify the decisions of the government not to provide HIV positive mothers with the medicine required to save their babies from HIV (in other words, a decision to let those babies die).

Now our former President is back to his old ways. In an interview with the Sunday Independent he rails against the Nicholson judgment and points out (correctly in my view) that Nicholson did not base his judgment on proven facts according to appropriate the rules of evidence:

Mbeki explained his understanding of the meaning of Nicholson’s judgment. He felt that Nicholson “really sought to impugn our integrity”, and presented Mbeki and his cabinet as “dishonest people” who “for whatever reason want to intervene in ways that are illegal and unconstitutional”.

He said he, like his cabinet colleagues, took the oath of office seriously and the oath was, for him, not just a formality. “For somebody to pop up from somewhere with absolutely no basis … to come to a conclusion that these are bad people, dishonest people, acted in violation of their oath, this and that and the other; that was bad,” he said.

Well, although Nicholson clearly got it wrong by basing his decision on very flimsy evidence, this does not demonstrate that Mbeki and members of his cabinet did not act dishonestly. We all know that Mbeki and his Minister of Justice had a rather peculiar idea about the independence of the National Prosecuting Authority (NPA) and that they tried to interfere with his work in order to stop the arrest of Jackie Selebi, that an unlawful order was given by his Minister to Vusi Pikoli not to arrest Selebi, that Pikoli was suspended because he refused to be intimidated by the President.

We all know that the Minister in the Presidency (old Essops Fables) shamelessly intimidated members of Parliament to try and stop them from launching a proper investigation into the arms deal because we have read Andrew Feinstein’s first hand account of this intimidation. (If there was nothing to hide, why go to such extraordinary lengths to hide that nothing?) We all know that former President Mandela was humiliated and ridiculed by Mbeki cabinet members because he dared to speak up about Mbeki’s HIV and AIDS folly. We all know that there was arms deal corruption (some of it even leading to prosecution). We all know that Shaik and Zuma were investigated while others in the ANC and in government, who were not threatening Mbeki’s political position (like Zuma was), and who clearly had much to explain, were left alone.

Some will say: well we do not know this at all because it was never proven in a court of law. Bring the evidence! Until you have satisfied US that we are indeed crooks, we are not crooks! Prove it! Well, a court has never found that the apartheid state supported hit squads and at the time the government denied involvement in such hits squads and also demanded from those who pointed to all the available evidence to “bring the evidence” while at the same time doing everything in its power to discredit those with inside information and personal experience of such nefarious activities. Sometimes the truth does not wait for a court of law.

Often a body of evidence – both circumstantial evidence and hard evidence – emerges over time. Even where someone is not prosecuted, any reasonably well-informed person will be justified to make conclusions based on that evidence. For example, no one was ever prosecuted in the United States for fabricating evidence of weapons of mass destruction in Iraq and for deceiving the public about the reasons for going into Iraq. But there is such a wealth of evidence supporting the fact of fabrication that only a few die-hard George Bush supporters will now claim that Bush and his cronies were not thoroughly rotten and dishonest about the reasons for going to war with Iraq (and much else besides).

The same is the case surrounding the arms deal, corruption and political interference in decisions to investigate and prosecute (or NOT to investigate and prosecute) some well-connected ANC types for arms deal and other forms of corruption. It might not form part of the “objective reality” in which President Thabo Mbeki lives, but it does not mean that it is not so.

Arms deal chickens coming home to roost?

News that Juliette Radebe-Khumalo, the Mayor of Lekwa Municipality in Mpumalanga, and her executive councilors were fired after meetings with an ANC delegation yesterday must come as a welcome surprise to all of us. The residents of Sakhile sure seem happy. As The Times report:

Following the announcement that Radebe-Khumalo and the entire executive committee has been axed, jubilant crowds gathered outside the city hall. Sakhile residents sang, blew vuvuzelas and popped champagne bottles in celebration. “Bye bye, Juliette Radebe-Khumalo. We have told you it has always been coming,” they sang. Residents had called for Radebe-Khumalo’s head months ago, saying a municipal finance report showed R30-million in municipal funds that could not be accounted for.

The one person who might feel aggrieved is Radebe-Khumalo. How could she have known that the disappearance of a paltry R30-million would prompt the ANC to act against her? It is not as if this is a common occurrence. If she had followed the ten year saga around the arms deal scandal – also fresh in the news (again!) – she might have been forgiven for thinking that the alleged theft of R30 million would not raise an eyebrow.

It seems to me the kind of unhappiness expressed by the Sakhile residents and by residents elsewhere in South Africa about poor service delivery resulting from nepotism and corruption can at least partly be blamed on the arms deal and the cover up of the corruption associated with the arms deal. Few have been left untainted by the arms deal scandal – including the NPA, former President Thabo Mbeki, current President Jacob Zuma, Trevor Manuel, Jeff Radebe, and Mosieu Lekota.  

The arms deal and the way allegations about corruption in the arms deal was dealt with (or not dealt with), established the template later followed by many ANC politicians who thought that if Manuel, Modise, Lekota and Mbeki would not be held accountable, they also would escape any censure for nepotism and corruption. We are, after all, all innocent until proven guilty. There are many good people in the ANC, but only a few of them spoke up when it became clear that the arms deal was riddled with corruption. Many others actively supported the cover up. The question should be asked why they did not follow their conscience but remained sthum.

Back in 2001 then President Mbeki set the ball rolling when he announced that a formal legal opinion by the Attorney-General of the Western Cape, Adv Frank Kahn SC and the SIU’s own senior legal advisor, Adv Jan Lubbe SC, confirmed that no prima facie evidence of unlawful  conducted existed concerning the Arms Deal. The truth was exactly the opposite as the two gentlemen had stated in their report to Mbeki:

[T]here are sufficient grounds in terms of the Special Investigating Units and Special Tribunals Act No 74 of 1996, for a special investigating unit to conduct an investigation, and, in our opinion, such an investigation is warranted.

And yesterday the DA released a damning report in which it provides further convincing evidence that the joint investigation arms deal report was doctored. Comparing a draft report with the final report, researchers demonstrate that:

  • Crucial ‘Overall Conclusions’ reached by the Auditor-General are entirely omitted from the final version of the Report. Notable in this instance is the conclusion that “there were significant flaws in the selection of BAe/SAAB as the preferred bidder for the LIFT & ALFA programme”. This is omitted from the final Report. Following this page, the editor inserts a further note – that certain ‘additions’ need to be made to the overall conclusion. This includes the conclusion that “the joint investigation team found no evidence of impropriety, fraud or corruption by Cabinet [or] Government” and that “government co-operated with the investigation teams and assisted them with their endeavours”.
  • Similar sizeable alterations on the Auditor-General’s findings regarding the ALFA/LIFT contracts are made later on page 57. Here, a passage reads “[t]here is an indication that the former Minister of Defence [Joe Modise] could have influenced the decisions of role players in the process”. Examples are then provided of where this is believed to have happened. This finding is entirely excluded from the final Report. Even the title of this section is earmarked for overhaul. The Auditor-General titles the section “Decisions of the Minister of Defence that could have influenced the process”, which is replaced by “The visionary approach of the former Minister of Defence”:
  • Another crucial section that does not make it: the Auditor-General’s conclusion that “[d]uring the investigation is became apparent that … preference was given to BAe/SAAB”:
  • A section that concludes that apparently preferential treatment given to some ALFA bidders was “not in accordance with good procurement practice” is scrapped. The editor notes that “No evidence of any preference awarded to any of the bidders during these visits were (sic) obtained”. This, of course, is not the point that the Auditor-General’s report was attempting to make. Further down, another passage concluding “fundamental non-compliance with good procurement practices” is also removed. Once more, the editor notes “No evidence” – though again this is not his/her call to make. On the page following this one, another section concluding further “noncompliance with good procurement practice” is also removed.
  • All of the key conclusions drawn by the Auditor-General in one section of the report are removed. The A-G concludes that “deviations from the approval process occurred” and “good procurement practices were lacking”. These failings included “apparent attempts at exertion of influence towards certain subcontractors” and “amendment of the overall formula to determine the preferred bidder”. These crucial findings are not only omitted from the conclusions section of the chapter in the final Report dealing with submarine contracts, but in their place precisely the opposite conclusions are substituted.
  • Throughout the section on submarine contracts, various other changes are made. For instance, the Auditor-General notes that because no minutes of a particular workshop were maintained, there is no evidence that the final NIP value system scores were agreed to by all members present – and that there was the possibility that some individuals may have influenced scores awarded. This is removed, and
    does not appear in the final Report.
  • A section detailing problems experienced dealing with government officials is marked for deletion. The single sentence that appears earmarked to survive the cut is altered such that it reads “[the two attorneys] co-operated with investigating teams and assisted them ably”. Further down, another section on difficulties experienced with state attorneys is cut.
  • At the end of the document the editor of the document makes notes on a copy of the Public Protector Draft Document (Part A of the JIR) under the headings “Trevor Manuel” and “President”. It appears s/he is instructed by Manuel to emphasise the fact that government cooperated with the enquiry (point 8), and that government was not reckless (point 4). The president’s concerns appear to include “country emerging” (point 1); and “Defend integrity of inv. (investigating) agencies” (point 2). This could be problematic if what was implied was that government needed to be protected. A further section headed “Lekota” follows. This is almost certainly, then, ‘feedback’ received from Mbeki, Manuel and Lekota at a meeting in October 2001.

If one reads this report, it is very difficult not to conclude that the final arms deal report was a complete white-wash and that it was fundamentally changed after interference by Mbeki, Manuel and Lekota. Maybe now that many of those involved in the white-wash are out in the political cold winds and the new Zuma administration is trying to show that it is different from the Mbeki lot, the ANC will finally lance this boil and will come clean about the obvious corruption linked to the arms deal and the blatant cover up of that corruption.

If they do that many of us ordinary citizens will see the sacking of mayor Radebe-Khumalo as only the start of a wonderful new beginning. We will praise the ANC for returning to the values it held so dearly before taking power and before some of its members were corrupted by the old business elites – to the detriment of the poor and downtrodden in whose name it fought the struggle.

Why the Rule of Law is not only important for the rich

Justice Johan Kriegler has been vilified by some because his organisation, Freedom Under Law (FUL), decided to challenge the decision of the Judicial Services Commission not to investigate the charges against Judge President John Hlophe. Kriegler argued that it was necessary to take this action in order to defend the Rule of Law. If even a small bit of what is shown on the video below and alleged elsewhere by Abahlali baseMjondolo is true, it conclusively demonstrates why the defense of the Rule of Law is not a frolic to protect the rich and well heeled alone.

If members of the police take sides in local conflicts and if local politicians do not respect the law because they think that state institutions will not respect the law and will turn a blind eye to their lawlessness and criminality, social activism and political mobilisation – both essential for the thriving of democracy – will be snuffed out and our beautiful Constitution will not be worth the paper it is written on. Anyone who dares to oppose the whims of local power brokers and charlatans acting under the protection of local politicians will face the threat of violence or even death.

This is slightly more important, I suspect, than whether John Hlophe is a crook or whether the members of the JSC are unprincipled political hacks doing the bidding of the ANC. Watch this video and weep.

Where is President Zuma?

We probably do not want to go back to the imperial Presidency of President Thabo Mbeki. In any case, as a matter of ANC and alliance politics it is probably impossible for our President to take on the dictatorial management style of Mbeki, who branded Cosatu as the ultra-left and tried to silence his critics outside the cabinet with threats and plots. Consultation and consensus is the name of the game as that is the only way to survive politically in the snake pit of tri-partite alliance politics.

One also does not want to find fault with everything our President does and one does not wish to be seen to try and tell President Zuma or his advisors what to do – that would be arrogant and patronising.  

However, from a purely constitutional law perspective, the tension in the cabinet and between the ANC government and Cosatu about the role of former finance minister, Trevor Manuel, raises an important question: where is President Jacob Zuma and why is he not leading as he is empowered and required to do by the Constitution?

Judging not only from media reports but also from statements made by various alliance leaders, a clash is building up between the ANC and Cosatu about the powers held by Trevor Manuel, Minister in the Presidency, and Ebrahim Patel, Minister of Economic Development. Cosatu maintains that Manuel’s Green Paper on national planning makes him a “super-minister”, to whom Patel will be subordinate. At its Midrand conference Cosatu consequently launched a vicious attack on the former confidants of ex-President Thabo Mbeki.

Cosatu had, of course, called for a complete overhaul of the content of the National Planning Commission for a “vigorous” engagement on the alliance’s green paper. To ensure that there was no confusion, Cosatu general secretary Zwelinzima Vavi referred to the green paper as representing “a massive turf battle in cabinet”. He indicated that certain ministers – most notably Economic Development Minister Ebrahim Patel – were being sidelined while Manuel had been positioned at the centre of processes.

Even if one has regard for the intricacies of alliance politics, there seems to be no need for all this tension. The President has both the power and the duty to address the tension and to ensure that his cabinet operates optimally. (If Cosatu does not like this they can complain, but Cosatu has no constitutional powers to run the country.) It is time to lead. We should expect nothing less from our President whom a majority of voters have entrusted with the power to lead us. Now he should do exactly that and lead – as required by the voters and the Constitution.

President Zuma clearly wishes to lead in a more conciliatory and consensus-building style, which is a welcome departure from the previous nine years of Mbeki rule. But this does not mean our President does not have a duty to make difficult decisions once all the consulting has been done. When one is President one cannot please all the people all the time and if one tries to do that one will be perceived to be weak and ineffectual and it won’t be long before the vultures swoop and one will end up like former President Thabo Mbeki – with lots of time on your hands to write your memoirs. 

Worse, the cabinet will not be able to do its work properly because of all the suspicion and infighting and ordinary people who have pinned their hopes on the government to provide a “better life for all” will suffer.

Of course, the President should not make the mistake to micromanage his cabinet. Helen Zille seems to have a tendency to do exactly that and in the Afrikaans press one hears the first rumblings from her provincial MEC’s about her dictatorial style.  She seems not to have learnt anything from the Thabo Mbeki fiasco, but perhaps she is bargaining on the fact that the Democratic Alliance does not have the same kind of appetite for democracy and constestation as the ANC. (Or maybe, like Margareth Thatcher, she will also leave her job in tears one day, still unable to understand how her minions who had always feared – if not respected – her could have stabbed her in the back.)

In any case, section 92 of the Constitution states that the “Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President”. This means that ordinary executive powers not dealt with by legislation can and must be delegated by the President to his or her various Ministers.

Constitutionally the President has a very broad discretion to decide how his cabinet will operate, how many members must serve in the cabinet and exactly what each cabinet minister will be responsible for. The current tension about the role of the Planning Minister  vis-à-vis the Economic Development Minister can – from a legal perspective – thus only be solved by the President.

This does not mean that he should not consult and discuss the difficult issues raised by Coastu and others, but the buck stops with him and at some point he will have to do what he is paid to do and what he was elected to do – lead and make decisions.

Even where legislation originally bestwowed powers on one minister, the President has the power to change this. Section 97 of the Constitution states that the President by proclamation may transfer to a member of the cabinet the adminsitration of any legislation entrusted to another cabinet member. He may also transfer to a member of the cabinet any other power or function entrusted by legislation to another member of the cabinet.

So, its is fine to travel the globe, to cut ribbons opening hospitals and schools and half built roads, to smile and laugh and tell jokes, to inspire us ordinary South Africans with nice warm-hearted stories and gestures, to threaten criminals with execution (well, maybe not that last one) and to meet with opposition parties, but in the end the buck stops with the President.

It is time for him to start making the difficult decisions as there are more important things in South Africa for a politician than being loved by all. There is a country to run, poverty to address, houses to build, children to feed and an economy to transform. Only the President has the constitutional power to guide this process via his cabinet. Gwede Mantashe might think this is up to him, but the Constitution is silent on the role of the Secretary General of the ANC in the running of the country. President Zuma  is the elected leader, not Mantashe, and it is therefore Zuma who has the constitutional duty to lead.

Shaiking all over

Be afraid. Be very afraid.

On Friday President Jacob Zuma’s appointed Moe Shaik as the head of the South African Secret Service (SASS). It would, of course, be unfair to judge Shaik on the basis that one of his brothers is a convicted crook who escaped a long jail sentence by the unlawful granting of medical parole, and that another brother plagiarised his doctoral thesis and fled the country to escape prosecution for his part in arms deal corruption. One cannot be judged merely on the basis of what one’s family members have done. (Although Ronald Kevin Roberts and others like him often does exactly that by imputing guilt to some white politicians because of what their parents or grandparents did.)

There are other reasons to be worried about the appointment of Shaik. Most pertinently, it is unclear whether this appointment is in line with the requirements of the Constitution. Section 199(5) of the Constitution states that “[t]he security services 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”. Moreover section 199(7) states:

Neither the security services, nor any of their members, may, in the performance of their functions-
(a) prejudice a political party interest that is legitimate in terms of the Constitution; or
(b) further, in a partisan manner, any interest of a political party.

Of course, Shaik  served in the international underground structures of the ANC in Natal where he worked closely with President Zuma. I would contend that – given our history – the mere fact that an individual was active in the ANC underground should not disqualify that person from appointment to a sensitive post such as that of the head of SASS. To hold otherwise would be to automatically disqualify for appointment many competent and honourable men and women who took part in the struggle against apartheid. That would surely be untenable.

The problem with Shaik is that after the end of apartheid, he has acted in a manner that has demonstrated a lack of wisdom, independence and integrity – all traits required for a spy chief. Shaik was a main actor in attempts to discredit the then National Director of Public Prosecutions (NDDP), Bulelani Ngcuka, in order to try and derail the state’s case against then Mr Jacob Zuma. Shaik was instrumental in airing the allegations that Ngcuka was an apartheid spy. It is clear that he peddled these rumours because of his undying, uncritical – even blind – loyalty to one man: President Jacob Zuma.

The Hefer Commission of Inquiry established that the allegations leveled against Ngcuka by Shaik were “ill-conceived and entirely unsubstantiated”. Shaik based his allegations on an (alleged) 1989 ANC investigation which Judge Hefer found were “utterly unreliable” and was:

fatally flawed by unwarranted assumptions and unjustifiable inferences and by the blatant failure to examine available avenues of inquiry…. Mr Moe Shaik revealed in his evidence that, after many years, his interest in Mr Ngcuka was rekindled when he came to know of the investigation against Mr Zuma. His renewed interest, he says, stemmed from his complete faith in and undying loyalty to the latter. For this reason he reexamined the information about the 1989 investigation, proceeded to make further inquiries and eventually confided in Ms Munusamy in order to make the public aware of the 1989 investigation and findings.

So, the Hefer Commission found that Shaik had a blind loyalty to Zuma, that he was prepared to peddle untested and spurious allegations of a very grave nature that could easily have destroyed Ngcuka in order to protect his friend, Jacob Zuma.  The same guys who kept on reminding us that anyone in South Africa had to be presumed innocent until proven guilty were now prepared to try and destroy someone in order to protect their “boss” by getting us all to presume Ngcuka guilty until proven innocent.

These actions came close to constituting a criminal offense, as the National Prosecuting Authority Act prohibits anyone from “improperly interfering with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions”.

But even if it was not a criminal offense, Shaik’s actions should have disqualified him from appointment because it demonstrates that he does not possess the attributes required of him by the Constitution. Shaik demonstrated that because of his blind loyalty to the President he would, indeed, be prepared to use (or perhaps – who knows – abuse) his power as spy chief to “prejudice a political party interest that is legitimate in terms of the Constitution; or further, in a partisan manner, any interest of a political party”.

Then President Thabo Mbeki was often accused – not without reason – of using state institutions to advance his political interests. The appointment of Shaik to such a sensitive post gives the clearest indication yet that President Zuma and his supporters complained about President Mbeki not because he used state institutions, but because he used it against them. Now that they are in charge, it is their turn to get their greasy hands on the levers of state powers.

Who knows where this will lead? How long before individuals are investigated by the intelligence services for hatching plots against Zuma? How long before Zuma’s trusted securocrats issue statements about dark forces out to undermine the government? Then we will be back where we started with Mbeki and the Polokwane revolution would have been an empty victory, replacing one group prepared to use the state machinery to advance its own agenda, with another.

Be afraid. Be very afraid.

Well done, ANC. Now get rid of Travelgate crooks

The ANC has asked Parliament to investigate the allegations against Loyiso Mpumlwana, who was nominated by the National Assembly as a full time commissioner of the South African Human Rights Commission. Mpumlwana was fired from the Truth and Reconciliation Commission after it was discovered that he defrauded the TRC. He was only one of four people the TRC instituted criminal charges against. One of the other three was PW Botha…..

The ANC is to be commended for this step. It will now request the President not to appoint Mpumlwana until a full inquiry has been concluded. In August 1997 the TRC issued the following statement:

The Truth and Reconciliation Commission is to lay charges against its former Regional Head of Investigations in the Eastern Cape, Mr Loyiso Mpumlwana, arising out of allegations that he was employed by the Premier’s Office of the Eastern Cape at the same time as being employed by the Commission.

The Commission will lay charges against Mr Mpumlwana for fraudulent misrepresentation. It will also bring a civil action to recover monies paid to him while he was employed by the TRC.

Mr Mpumlwana’s apparent employment by the Premier’s Office was brought to the attention of the Commission by that office after a recent report in the Mail and Guardian about discplinary charges brought against him by the TRC.

The charges were brought against Mr Mpumlwana during June as a result of his inadequate performance. After a disciplinary hearing lasting three days, he was found guilty of eight of 10 charges he faced relating to his failure to perform his duties. He tendered his resignation before the TRC decided what sanction to impose on him. The TRC accepted his resignation.

Well, Adv Mpumlwana should of course never have been on the ANC list of nominees for appointment to the SAHRC, but at least the party seems to have admitted to its mistake and might even rectify it. That would set a great precedent for the future. One assumes this means the party will also act against the criminals known as the Travelgate MP’s who stole money from Parliament.

Great stuff.

Of course, if a proposal by the Asmal Committee  on Chapter 9 Institutions had been implemented, this would never have happened. (Full disclosure: I was a legal advisor to this Committee so might be seen to have a stake in the implementation of its recommendations.) The Asmal Committee suggested that civil society be given an opportunity to comment on the quality and the suitability of a short list of candidates considered for appointment to Chapter 9 institutions such as the SAHRC.

This is because section193(6) of the Constitution states that the involvement of civil society in the nomination process may be provided for in line with section 59(1)(a) of the Constitution. That section requires the National Assembly to facilitate public involvement in its activities. As I wrote before, the Constitutional Court has stated that this means Parliament must provide for reasonable and effective participation by the public in the law making process (and also in the appointment of SAHRC Commissioners). Sadly, this was not done and now the National Assembly sits with egg on its face.

As Justice Ngcobo said in the Doctors for Life International case, the need for public participation:

[E]ncourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and to become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.

But public involvement also acts as a check on the Parliament to police it and to assist it not to make really bad decisions (as it did here). Maybe this sorry saga will convince the National Assembly to implement the recommendations of the Asmal Committee. Who knows, we might even get competent appointments to  the SAHRC.

Whether the Travelgate criminals will be fired is of course another matter…. Wonder what PW Botha would have thought about all of this.