Constitutional Hill

ANC

Let’s stand up against the racists and the Kebbilists!

Two reports on very distinct issue caught my eye this morning. Could this be the wake-up call we need – after an embarrassing week in which we all had to come to grips with the irresponsible and seemingly insatiable appetites of our President? First, the Daily Dispatch – that feisty newspaper in the Eastern Cape who fearlessly exposes the nepotism and corruption of the government in that province – reported that the Eastern Cape provincial Health Department has gone bust with debts of R1.8 billion, and cannot pay creditors or nursing staff their special payments until the new financial year. 

As part of a dramatic clean-up of its finances the province will also disband its existing bid evaluation committees, Health Department spokesperson Sizwe Kupelo confirmed.  According to the Daily Dispatch the shock announcement is a forerunner to further drastic action when heads may roll and resignations are expected. About time, some would say.

Then I read in a Business Day report that Deputy President Kgalema Motlanthe said yesterday (standing in for the rather fatigued President Zuma) that the government could no longer tolerate the current status of Black Economic Empowerment (BEE), which in the past 15 years had benefited a handful of individuals.

 “Only a few benefited again and again from the bounty of black economic empowerment,” he said. The “truly marginalised” — women, the rural poor, workers and the unemployed — were left on the sidelines. It was important to look at BBBEE beyond business deals and shareholding in companies, to include equipping people to run their own businesses. “More must be enrolled in skills training and more should have access to arable land.”

Juxtaposing these reports seems to go to the heart of many of the problems faced by South Africa and by the government of the day. Let’s face it: the government seems to be caught between a rock and a hard place.

On the one hand, there is an ethical, political and constitutional imperative to speed up the racial transformation of all sectors of the economy and society (the state having been thoroughly transformed already). This transformation has not happened in the manner one would have wished. A few well-connected individuals have made billions from government contracts and BEE deals and some others have landed cushy government jobs.

But the vast majority of South Africans have not benefited from so called Broad Based Black Economic Empowerment (BBBEE) or from affirmative action policies – both because of resistance to racial transformation by certain members of the white community and because of greed and nepotism on the part of members of the new, politically well-connected, elite.

On the other hand, there are grave dangers inherent in speeding up this process of transformation – as the lack of service delivery in the state sector clearly shows. Because we are still struggling with the corrosive consequences of apartheid and the Bantu education system, because our post-apartheid education system is not working properly and are not producing enough highly skilled black graduates and technicians, and because a culture of nepotism, corruption, laziness and greed has taken hold among many who see their friends and family unjustifiably benefiting from BEE deals and government contracts without having had to do any work, the speeding up of transformation often has disastrous consequences.

People who are incompetent, lack the necessary experience and skills or the necessary commitment to service delivery, are often appointed to “affirmative action” posts in the civil service because they happen to have family connections or are close to politicians or senior officials.  This leads the kind of mess we now see in the Eastern Cape health department.

Make no mistake (as President Barack Obama likes to say) poor and vulnerable people – like many of the long-suffering citizens of the Eastern Cape who depend on the state health system – suffer most when transformation fails to produce a better life for all. The acknowledgement of our Deputy President that part of the solution is more education and skills training, is therefore a good sign.

At least some in the government (those who have not bought into the tenderpreneurial culture, and the Kebbilism, spouting fake populist slogans while driving around in million Rand cars) understand that given our history and the present state of our education system, there is a tension between the very real need to speed up transformation and the need for effective and efficient service delivery.

The only way to deal with this is to invest financial and human resources into education and training in both the public and the private sector. Teachers who are unable to teach properly should be retrained and those who do well should be rewarded (but for that to happen the government will have to stand up to the South African Democratic Teachers Union, something it is probably too scared to do). Businesses must be forced to invest in training and skills development and ways should be found to punish – rather than reward – the kind of window dressing affirmative action and fronting that some of them engage in.

What we as a society need to do is to agree on some kind of social pact. Some white people who still resist transformation and cannot see that their own interests – along with the interests of their fellow South Africans – depend on the implementation of successful transformation measures, should stop their nonsense and come to the party. We should all confront the explicit or implicit racism that informs the views of such people who often believe deep down that black people are not as capable as whites merely because of the colour of their skins.

But that would not be enough.

Some black people who pretend that there are no skills shortage and that there are no problems with the way in which BEE and affirmative action are sometimes implemented, should face up to these facts and should acknowledge the problems. (Luckily some in the government are already doing so, but they are in a life and death struggle with the tenderpreneurs and Kebbilists who chooses short term personal gain for themselves over long term prosperity for all.)

So why do we not call a truce on this silly debate on affirmative action and BEE and all agree that it is not only an ethical necessity but also an absolute requirement for the long term success of our country? Then we can start to devise ways in which we can implement these policies in a way that will not favour the few greedy Kebbilists, but the majority of us – black and white – who wish to see a prosperous and growing country in which no one goes hungry, everyone has a house and all children (even all the known and unknown children of our President) get a good education that will allow them to reach their full potential.

Did the President lie about his “wives”?

Did President Jacob Zuma lie about his marital status in an official government document, or did he lie to the nation about the number of wives he is married to? And what is the legal status of President Zuma’s various formal and less formal liaisons with women who happens to be his sexual partners?

The Times reports this morning that a document purporting to be a copy of the application for a birth certificate for the latest Zuma baby has the answer “yes” in reply to the question: “Are the parents of the child married to each other.” The document is date stamped January 19 – two weeks after Zuma married Tobeka Madiba, who he then claimed to be his fifth wife.

At first blush it would appear that if The Times story is correct, Zuma either lied when he completed and signed the application for the birth certificate or that he lied when he stated that Tobeka Madiba was his third consecutive wife. It might of course be that some dark forces out to destroy Zuma fabricated the application for the birth certificate and forged Zuma’s signature on it. Stranger things have happened in this country. But this would only be the case if those forces are rather close to Zuma because the application contains the personal phone numbers of both Zuma and the mother of his child as this information was provided on the application.

However, there is also another manner in which to explain away the apparent lie. It might also be that Zuma had married the mother of his most recent child (as far as we know) in a private ceremony in terms of traditional Zulu custom but had not registered the marriage as required by the Recognition of Customary Marriages Act.

Mr Zuma would then be married in terms of Zulu custom, but not in terms of the law as set out by the Recognition of Customary Marriages Act. This would mean that he would be able to claim that, strictly speaking, he did not lie because he was legally married to only three women but married in terms of Zulu custom to four women. This would allow Zuma to claim that both the statements during his most recent wedding and the statements on the birth certificate application were true.

This last defence would be a good one as far as semantic gymnastics are concerned, but it would place a serious question mark over Mr Zuma’s assurances at Davos last week that he believed in the equality of women. It would also place a serious question mark over his respect for the law. This is because a spouse who enters into a customary marriage has a legal duty in terms of the Act to register that marriage within a period of three months.

More pertinently, where the husband is already married to one or more other wives, the Act places a duty on him to make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.  The existing wives and prospective wife must be joined in such an application and they can make any input to the court. The court can then amend the contract in such a way that it would ensure an equitable distribution of the property between the spouses.

If the President (or anyone else, for that matter) entered into a customary marriage it would be extremely important for them to register the customary union and to make the necessary application to court to ensure that a contract providing for an equitable distribution of property is approved by the court. Failure to fulfil these legal obligations would fundamentally undermine the legal position of one or more of the wives and would display an utter lack of respect for women’s equality and would potentially subject one or more of the wives to humiliation and deprive them of their dignity.

As the Constitutional Court stated recently in the Gumede judgement, before the advent of the new Act  there was “a stubborn persistence of patriarchy and conversely, [this resulted in] the vulnerability of many women during and upon termination of a customary marriage”. The Act represents:

a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country… The legislation … seeks to jettison gendered inequality within marriage and the marital power of the husband by providing for the equal status and capacity of spouses….

The legislation not only confers formal recognition on the marriages but also entrenches the equal status and capacity of spouses and sets itself the task of regulating the proprietary consequences of these marriages. In doing so, the Recognition Act abolishes the marital power of the husband over the wife and pronounces them to have equal dignity and capacity in the marriage enterprise.

In order to establish whether President Zuma is a sexist patriarch or whether he really respects gender equality, it would be helpful if he told the nation whether he had indeed registered all his customary marriages as required by the Act and whether he has made an application to court to ensure an equitable distribution of property between the spouses. Obviously if he has not adhered to the law he would not only be showing a complete contempt for the law but also an inherent contempt for women.

On the other hand, if the President provided evidence of the fact that he had registered all his customary marriages and that he had been granted an order by the court confirming a fair arrangement regarding the distribution of property between the spouses, he would probably gain some new respect and his assurances at Davos about his support for gender equality might carry a little more weight.

As matters stand now, responsible citizens have far too little information to make informed decisions about the conduct of the President and what it says about his character (or lack of character). This is not our fault, but rather the fault of the President and his advisors who insist that this is a private matter.

Although the Presidency is now trying to avoid accountability by changing the subject to one of his alleged right to privacy, this is not a private matter – no matter what the Presidency and the ANC claims. If the President does not provide us with the necessary information people will jump to conclusions – whether those conclusions are correct or not – and the image and standing of our President will suffer as a result.

Twenty children and counting

The ANC wants us to believe news that President Jacob Zuma has fathered yet another child out of wedlock (and hence that he has had sex with yet another woman who is not one if his wives without using a condom) is a private matter. Presidency spokesperson Vincent Magwenya is quoted as saying that Zuma’s right to privacy: “had clearly been violated…. Does the public’s right to know reign supreme over the individual citizen’s  constitutional rights regardless of who they are,” Mgwenya fumed.

Mgwenya’s statement is shockingly anti-democratic and ill-informed. The fact is that President Zuma is not a private citizen like everyone else. He is the leader of the largest party in South Africa and President of the country. As the Constitutional Court has made clear, the right to privacy – like all other rights – are not absolute and not everyone can claim an absolute right to keep their private lives secret, regardless of who they are.

The more public a figure, the less privacy he or she enjoys. If private actions could have public consequences, a public figure enjoys very little privacy regarding those particular actions as this would impoverish our democracy as it would deprive us of information needed to form opinions about our political leaders.

The President is not an ordinary citizen. We pay his salary and we have a constitutional right to know whether his behavior is such that we would want to vote for the party he leads. To argue that this is a private matter is to argue that citizens do not have the right to know what their leaders get up to and what kind of characters they have. It is also to argue that our right to vote for the party of our choice in an informed manner should be trumped by the right to privacy of a man who has chosen to take up the position of president of the country – thereby forfeiting some of his privacy rights.

The view expressed by the ANC is reactionary and disrespectful of voters and if adhered to will potentially hold severe negative consequences for the quality of our democracy. Because Zuma is a public figure and a main player in our politics, he has forfeited some of his privacy. If the ANC does not believe this, they clearly have contempt for the dignity of voters and for the right of voters to make informed choices. The view espoused by Mgwenya thus poses a danger to our democracy and must be rejected with contempt.

The same can of course not be said for the baby President Zuma fathered. That baby did not choose to be fathered by the President and has a right to privacy. It would also be in the best interest of the child to keep his or her identity secret. The Sunday Times was therefore wrong to publish the full names of the baby.

The second – and distinct – question is whether the news that Zuma has fathered another child out of wedlock should be relevant for us when we make choices about whom to vote for. I am not a particularly moralistic person, so personally I would ordinarily say that the sexual adventures of a politician should have little or no bearing on his or her political standing. Normally the fact that a politician had an affair or fathered a child out of wedlock would say very little about his or her ability to govern the country and should not really be of great interest to us voters.

But this changes where the private actions of the politician directly contradict his or her public utterances and the policy positions of the party he or she belongs to or – in the case of President Zuma – leads. When that happens, a politician shows that he or she is a hypocrite and that we cannot trust a word he or she says and, hence, that he or she lacks the necessary character to be a political leader who should enjoy our trust. For example, if the leader of a Reborn Christian party who rails against homosexuality has a gay affair, we should condemn that politician – not because of the gay affair but because of the sheer hypocrisy of the man. Why would we ever believe anything that politician says ever again?

This is why the news of President Zuma’s love child is a big deal.

Our President has made many statements which directly contradicts his private behavior. Talking to religious leaders before the election he said that: “we need to teach our people to fear God… There are many other examples, which illustrate that the historical association of the ANC and the Church cannot be doubted. The ANC practically derived its moral vision from the church amongst other sources”.

As far as I know, very few people believe in a God that condones promiscuity and extra marital affairs, and the moral vision of the church is surely not one that condones extra-marital affairs and fathering children out of wedlock. This creates the impression that our President is a hypocrite who says one thing to church leaders (and pretends that the ANC  he leads has a vision in line with church teachings) when he personally does not adhere to that vision. This is usually called lying. I wonder what Ray McCauley (who is just about the divorce his second wife!) thinks about this behavior?

Last year President Zuma also made a brilliant speech on World Aids Day and many of us praised him and commended the ANC for this fresh approach to the disease. The ANC Youth League even launched a “one girlfriend, one boyfriend” campaign as part of this fresh approach to HIV prevention. Zuma himself said:

Our message is simple. We have to stop the spread of HIV. We must reduce the rate of new infections. Prevention is our most powerful weapon against the epidemic… All South Africans should take steps to ensure that they do not become infected, that they do not infect others and that they know their status. Each individual must take responsibility for protection against HIV. To the youth, the future belongs to you.

It does not mean that we should be irresponsible in our sexual practices. It does not mean that people do not have to practice safer sex. It does not mean that people should not use condoms consistently and correctly during every sexual encounter. We can eliminate the scourge of HIV if all South Africans take responsibility for their actions.

After the recent revelations it is far from clear whether President Zuma actually meant what he said. Perhaps President Zuma and the mother of his child both had an HIV test before they started having unprotected sex, but if that is the case we have a right to know. In the absence of such knowledge we will surely be forgiven for believing that the President is an unprincipled hypocrite who says one thing in public and commits the ANC to one policy and then does exactly the opposite in private.

At the very least President Zuma must tell us whether he was irresponsible in his sexual practices and whether he has taken steps to protect himself and his sexual partners from HIV infection. He should tell us whether he has had any other extra-marital sexual relations and whether he has fathered any other children out of wedlock. If he does not, the voters will be well within their rights to judge the President harshly and to conclude that he is a man who cannot be trusted, a man who would say anything to get elected – even if what he says is exactly the opposite of what he does.

This goes to the heart of the character of our President. Either he can be trusted and we can believe what he says, or he cannot be trusted and we should assume that he is a pathological liar. When his private actions suggest that he cannot be trusted, voters have a right to know about those actions. Moreover, they also have a right not to vote for him at the next election – not because he is less “moral” than Mother Theresa, but rather because he is not honest.

Cwele should step aside

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.

Nationalisation of the Reserve Bank?

I was rather intrigued by news reports that Gwede Mantashe, Secretary general of the ANC, has hinted that the ANC-led government should consider nationalising the South African reserve Bank (SARB). Mantashe said that the “South African Reserve Bank is one of less than five central banks in private hands in the world”.

My first thought was a rather naive one: Surely that cannot be right? How can the SARB be privately owned? And if it is privately owned, who owns it and how can I buy some of those shares (that is, assuming I had any money to buy the shares with)? It would be rather nice to say I own part of the South African Reserve Bank and, I imagine, it would be a rather safe investment.

Well, Mantashe was right – sort of. When the SARB was established it was common practice for central banks to have private shareholders and as the Bank explains on its website:

The ownership structure of the SARB, however, has not been amended since its inception. It is a juristic person in terms of its own Act. The SARB has some 600 shareholders and its shares are pre-dominantly traded on an over-the-counter trading and transfer facility. The SARB is one of only nine central banks with shareholders other than the governments of their respective countries.

So, does this mean that getting rid of those private shareholders is a good idea or that it is constitutionally feasible to nationalise the SARB?

Section 224 of the Constitution states that the primary object of the SARB “is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic”. In pursuit of this objective, it “must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters”.

The constitutional position of the SARB is thus quite similar to that of the National Prosecuting Authority (NPA): its independence is constitutionally guaranteed and the government of the day is prohibited from interfering with the day to day running of the Bank or any of its decisions. (Menzi Simelane, the man purportedly appointed by President Zuma to head the NPA, might of course disagree with this blindingly obvious constitutional fact – either because he is very ignorant or very dangerous – but that would not change what the law says.) At the same time the Bank is required to interact with the government to ensure that the broad policy objectives of the Bank and the government are aligned.

Nationalising the SARB will not change this at all – unless the Constitution is amended to abolish the independence of the SARB to allow the Bank to follow the instructions of the government of the day. If Mantashe meant to say that it was perhaps necessary to abolish the independence of the Bank, he was obviously smoking the strong stuff from Swaziland or the former Transkei because we all know what will happen if the Bank started acting in the interest of a strong clique within the governing party.

If that happens the Bank will start to print money to finance the lavish lifestyles of the right kind of party faithful and to buy the loyalty of cadres and before we know it we will all become Rand millionaires and acquire terrific numeracy skills (without any assistance from the Minister of Education), as we will be running around with R10 00000000000 notes in our pockets to pay for a loaf of bread.

It does seem rather strange that the SARB has private shareholders though, but in practice this makes no difference to how the Bank operates. While seven of the fourteen members of the Board are appointed by the President and seven more are appointed by shareholders, the Governor of the Bank has a deciding vote on the Board, giving control of the bank to those appointed by the President. Shareholders cannot remove the governor or the other members of the Board and have very little power over the Bank.

The SARB Act can be amended without any constitutional problem to abolish private shareholding in the Reserve Bank – as long as those shareholders are adequately compensated. But, once again, this will make no difference to how the Bank operates as its independence is constitutionally guaranteed.

The “debate” about the nationalization of the Reserve Bank is therefore a red herring to hide disagreement in the ANC about more fundamental economic questions within the ANC alliance.

The larger economic question (which I am not in a position to address) is whether the Bank’s broad policies on inflation targeting, agreed to by the Bank and the Minister of Finance, is good or bad for the working poor and the unemployed. Those who are calling for the nationalisation of the Bank should rather engage the Minister of Finance (who the last time I checked was a communist) about the broad government policy framework on inflation targeting and interest rates if they wish to change the policies of the Bank.

Nevertheless, if anyone has some Reserve Bank shares they want to give away in the name of transformation I will be happy to accept on the basis of representing the gay and lesbian lobby! Given the overwhelming influence of money on our politics (Tokyo Sexwale gave lots of shares to influential opinion makers – remember Xolela Mangcu? – to buy some good publicity for himself and for Jacob Zuma) one of those Reserve Bank shareholders might believe if they give me some shares I will sing the praises of one politician or another.

I am happy for them to think that giving me shares will help their cause and will gladly take the shares – and then write exactly what I like in any case.

Just a (tongue in cheek) thought.

More questions on the AbaThembu King

Very few people – least of all anyone in government – seem to be taking seriously the claim by Votani Majola, lawyer for King Buyelekhaya Dalindyebo, that the AbaThembu tribe had seceded from South Africa. This is curious, given the fact that Dalindyebo was confirmed as the only King of the AbaThembu in 2008 by a Commission set up in terms of the Traditional Leadership and Governance Framework Act.

Dalindyebo’s actions might seem laughable, but he has quite an impressive family history and one would suspect the reason why the authorities are not making a big noise about this is that they do not want to inflame the passions of some of the Kings subjects. Dalindyebo is a descendent of Paramount Chief Sabata Dalindyebo who resisted efforts by Kaizer Matanzima to co-op him into supporting “independence” for the Transkei. Matanzima did everything in his power to depose Sabata as paramount chief.

Ironically Mantanzima succeeded only in 1980 when a Transkei court found Sabata guilty of violating and injuring the dignity of the state president. Sabata had told a gathering of more than 1 000 people at his Sithebe Great Place that he had refused an offer from Matanzima to become the first president of Transkei because homelands were “pigsties and dummy institutions”. Sabata fled the Transkei and ended up in Zambia, where he threw in his lot with the African National Congress and later died.

Recent events are therefore – to say the least – rather ironic. The media reported last week that Majola, the lawyer for the AbaThembu king, had served a “secession notice” on Parliament and quotes Majola as saying that the “AbaThembu Tribe have seceded from South Africa. The sooner the nation aligns with this reality and start preparing to form the State of Thembuland the better”. Majola said the nation was no longer part of South Africa and that the ANC-led government would have no say in the new independent state, which would be headed by Dalindyebo.

Dalindyebo was sentenced in the Mthatha High Court in December for crimes including culpable homicide, kidnapping, arson and assault with intent to do grievous bodily harm. He is obviously a rather eccentric character because he claimed R80 billion in compensation from the government for the indignity he suffered when he was sentenced to a term of 15 year imprisonment. Some analysts also claim that Dalindyebo is being persecuted because many of his subjects voted for the UDM in previous elections.

Obviously, the statements of the King’s legal representatives and the delivery of a secession note will not have any legal effect and Dalindyebo and all his subjects remain South African citizens. In the absence of specific unlawful acts by Dalindyebo or his subjects to undermine the authority of the South African state, it is thus understandable that the government is pretending this farce is not really happening.

But a few interesting legal questions do arise. The King is being paid almost a million rand a year by the South African government in accordance with the Remuneration of Public Office Bearers Act, which provides for the payment, amongst, others, of Kings and other traditional leaders. What will happen if the South African government stops paying him on the basis of his own claim to secession? I suspect the government could not stop payment as the secession is not legally valid and Dalindyebo thus remains the King – despite all the bluster by his legal representative.

But section 10 of the Traditional Leadership and Governance Framework Act does provide for the removal of a King, in which case he will lose the payment. This can happen where a King has been convicted for an offence and given a sentence of imprisonment for more than 12 months and the Royal family requests the President to remove the King. In such a case the next in line to the throne will be invested as the new King.

One wonders whether the present posturing does not have to do with the internal politics of the Royal family and whether the King is not trying to pre-empt any effort to remove him as King.

Lastly, a larger set of questions comes to mind: why is it that the South African tax payer is paying kings and traditional leaders such exorbitant amounts of money? What value do we get for our tax money from this system? What is it exactly, say, that King Goodwill Zwelethini does that warrants the payment of large amounts of public money to him to furnish a lavish lifestyle? Is the notion of Kings, kingdoms and traditional chiefs to be squared with a constitutional democracy at all or is it not profoundly undemocratic?

I am a Republican at heart and have always thought it was utterly ridiculous that Britain had a Queen who dressed up in funny hats, spoke in a constipated accent and travelled around her country opening factories while smiling benignly and waving to the crowds. Surely in a democracy one should not be considered better than anyone else merely because you were supposedly born to be a King or a Queen? So why do we have this same ridiculous notion in South Africa, given the fact that the traditional leadership system in our country have been thoroughly corrupted by colonialism?

The ANC used to be opposed to these anti-democratic leaders who are part of a system that was bastardised and exploited by the colonial masters and later by the apartheid government to ensure white control over the local population. But in recent years the ANC has decided to embrace the traditional leaders and has forgotten its own critique of the system which is not really in line with the achievement of the National Democratic Revolution.

What happened?

Open letter to President Jacob Zuma

Dear President Jacob Gedleyihlekisa Zuma

The media is reporting that you may appoint Jon Qwelane as South Africa’s ambassador to Uganda. I trust these reports are wrong and that the rumours about the imminent appointment of Qwelane were started by your enemies. Surely such damaging rumours have been spread by those who wish to re-enforce racist and Afro-pessimistic stereotypes about our leaders. Such rumours will obviously tarnish your name and will re-enforce widely held perceptions about your alleged lack of commitment to our Constitution and the values enshrined in it.

In terms of section 84(2)(i) of the South African Constitution you are empowered to make ambassadorial appointments. In exercising this power, you have a wide discretion to appoint fit and proper individuals of any political persuasion – as long as you act rationally and do not make appointments in bad faith. (You obviously have a sense of humour in this regard as you even appointed the former leader of the official opposition, Tony Leon as South Africa’s ambassador to Argentina.)

As a constitutional law scholar I have to point out that your power is not unlimited. You may not appoint someone as an ambassador if such a person had paid a bribe or if he or she is fundamentally opposed to the values and rights enshrined in our Constitution as this would be irrational, arbitrary or capricious – given the fact that you have a duty to uphold the Constitution and promote the values enshrined in it. You have, I need to point out, a duty – when appointing ambassadors – to act in terms of the law and the Constitution.

When you took office you swore an oath of office (contained in Schedule 2 to the Constitution) and you promised on that glorious day that you would “obey, observe, uphold and maintain the Constitution and all other law of the Republic”. You also promised to “protect and promote the rights of all South Africans and to do justice to all”.

The appointment of Jon Qwelane as ambassador to Uganda will not promote the rights of gay men and lesbians living in South Africa or elsewhere in Africa or the world. In fact, such an act would present a fundamental breach of your solemn promise to uphold and maintain the Constitution and the law as it will encourage hatred, bigotry and even violence against a vulnerable minority of South Africans – something prohibited by section 9 of our Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.

Qwelane has written that he agrees with the sentiments expressed by President Robert Mugabe that homosexuality:

Degrades human dignity. It’s unnatural and there is no question ever of allowing these people to behave worse than dogs and pigs. If dogs and pigs do not do it, why must human beings? We have our own culture, and we must re-dedicate ourselves to our traditional values that make us human beings… What we are being persuaded to accept is sub-animal behaviour and we will never allow it here. If you see people parading themselves as lesbians and gays, arrest them and hand them over to the police!

He also wrote that “something is rotten in this country, seriously stinking”, referring to the Civil Union Act – which you promised to uphold – as the “stabani Act”. He also slammed the Constitutional Court for wanting “to make this country the “trahssie” capital of Africa.” In addition to his bigoted opinions, the use of the words “stabani” (a derogatory term for gay) and “trahssie” (derogatory term for an inter-sexed person) are particularly repulsive.

He has also equated homosexuality with bestiality and claimed that he prayed “that some day a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the Constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women”. Qwelane therefore believes that many South Africans like myself are no better than animals and that we have no right to have our dignity and equality protected.

He is a bigot who hates a group of fellow South Africans who cause no one any harm – for no other reason than the fact that they are emotionally and sexually attracted to members of the same sex. Mr Qwelane hates us because we happen to love differently than he does (assuming that he is capable of love at all).

As you might know, the Ugandan Parliament is presently debating a Bill that would impose the death penalty (which was outlawed in South Africa many years ago) on “repeat offenders” guilty of the “crime” of homosexuality. The appointment of Qwelane as South Africa’s ambassador to Uganda would send a signal to all gay men and lesbians in South Africa, Uganda and the rest of the world that our government does not object to this Bill and that people like myself are deserving of the death penalty.

Worse, it will send a signal to bigoted and homophobic South Africans that our President and the government he leads, at best, turns a blind eye to the humiliation, degradation, assault and killing of gay men and lesbians and, at worse, endorses such behaviour. This would encourage more hatred and violence against gay men and lesbians in South Africa, who are often targeted for attack by hateful bigots who do not believe that every human being has the inherent human dignity that guarantees them equal concern and respect – regardless of their differences from the majority.

The appointment would also constitute a grave affront to the family of women like Eudy Simelane, former star of the Banyana Banyana national female football squad. Simelane was found dead in a creek in a park in Kwa Thema, on the outskirts of Johannesburg after being gang-raped and brutally beaten before being stabbed 25 times in the face, chest and legs – all because she was a lesbian. Many other lesbians have been attacked and killed over the years because of the attitudes propagated by people like Qwelane. In that regard, he has the blood of fellow South Africans – many of them women – on his hands. If you appoint him, you will similarly have blood on your hands.

It is unthinkable that you would appoint as an ambassador a racist man or woman who has written extensively about his or her hatred of black South Africans. This would be rightly unthinkable, given our traumatic past in which so many human beings were oppressed, humiliated and attacked, not because of what they did but merely because of the way they were born. Surely then, it must be equally unthinkable that you would appoint Qwelane as an ambassador to Uganda as he believes that those of us who happen to have been born gay or lesbian are worthy of vilification, hatred and discrimination.

Given the constitutional prohibition against sexual orientation discrimination and the fact that you had sworn a solemn oath to uphold the Constitution and to promote the rights of all South Africans, the appointment of Qwelane will signal a profound disrespect for the Constitution, the law and for a small but vulnerable section of our society. It would also confirm what some pessimists have been fearing, namely that you are not a man of your word and that you do not adhere to promises made – even when those promises were made under oath in front of the whole nation.

I still hope that the rumours about the appointment of Qwelane are no more than an ugly smear-campaign launched by political opponents to discredit you and tarnish your name and the name of the ANC which you lead. Please Mr President, do not besmirch your name and do not besmirch the name of the ANC, who fought for our liberation and ensured that the rights of gay men and lesbians are protected by our Constitution.

Kind Regards

Pierre de Vos 

Our own Sarah Palin?

During the USA Presidential campaign, vice presidential candidate Sarah “Barracuda” Palin was rightly lambasted after giving a disastrous and laughable interview to Katie Couric. The most quoted section dealt with her lack of foreign policy experience and went like this:

Couric: You’ve cited Alaska’s proximity to Russia as part of your foreign policy experience. What did you mean by that?

Palin: That Alaska has a very narrow maritime border between a foreign country, Russia, and, on our other side, the land boundary that we have with Canada.

Couric: Well, explain to me why that enhances your foreign policy credentials.

Palin: Well, it certainly does, because our, our next-door neighbors are foreign countries, there in the state that I’m executive of.

Couric: Have you ever been involved in any negotiations, for example, with the Russians?

Palin: We have trade missions back and forth, we do. It’s very important when you consider even national security issues with Russia. As [Russian Prime Minister Vladimir] Putin rears his ugly head and comes into the air space of the United States, where do they go? It’s Alaska. It’s just right over the border. It is from Alaska that we send those out to make sure an eye is being kept on this very powerful nation, Russia, because they are right there, they are right next to our state.

Last night while watching the ETV interview with President Jacob Zuma, it suddenly dawned on me: maybe President Jacob Zuma  is our Sarah Palin! Like Palin, President Zuma has charisma, glamour and the common touch. Like Palin our President is much loved by his core supporters who believe that he is being victimized by snooty (or even racist) elites with no respect for traditional values. Like Palin, President Zuma can charm individuals when he meets them. Like Palin, Zuma has an interesting family life. And like Palin he looks completely and embarrassingly out of his depth when confronted by an intelligent and probing interviewer on TV.

Nikiwe Bikitsha did a brilliant job in the interview: she was respectful and courteous (as one should be when interviewing the country’s President to show respect for the office of the President) while asking probing and pointed questions and following up the many evasive and often misleading or plane wrong answers with pertinent follow up salvo’s – always humbly nodding along as the President basically admitted that he did not know much about what was going on in his government.  Our President kept on saying that discussions were continuing on many pivotal issues for South Africa (nationalization, schooling, Julius Malema, the NPA) but that nothing has been decided yet and that he personally had no views on any of these issues.

When asked about whether he would pardon Shaik, he wisely decided to skirt the question because the issue is so politically sensitive and because his advisors must have told him that he should not say anything about it until they have found a way of managing the inevitable fall-out of a possible pardon. Unfortunately, the President skirted the issue in such a ham-handed way that he created more trouble for himself.

“Why should I pardon him when he has not applied?,” he said. “I have nothing in front of me. If there was an application before me, you should ask the question. Why should I respond if I do not have the application before me?” Unfortunately the Presidency issued a statement on 19 October 2009 that contradicts this statement:

The Presidency received an application for pardon from Mr Shabir Shaik last year, on 24 April 2008. The application will be processed like all other applications

The President has therefore indeed received a pardon application and he therefore does have an application in front of him. He might not  have read the application himself, but he does have it on his desk and should know this as his office has confirmed this in an official press statement. Oops!

This is not a life and death issue and will not influence the legality of any pardon when it is eventually granted, but it was another embarrassing gaff on the part of the head of the South African executive which creates the impression that the President is either not aware of what is going on in his own office or that he is perfectly prepared to tell a whopper in order to avoid answering an awkward question.

But maybe there is a kinder explanation for the seeming Palinesque inability of President Zuma to answer any of the questions posed to him and his seeming lack on knowledge and grasp of the issues confronting South Africa. Maybe he avoided answering the questions because he is afraid.

In this regard the ghost of former President Thabo Mbeki seemed to hover over proceedings.

After all, Mbeki lost his job because he had opinions of his own and sometimes expressed them despite the fact that the ANC leadership had not “pronounced” on an issue. Watching President Zuma I got the palpable feeling that the power has shifted decisively from the union buildings to Luthuli House and that instead of constitutional government we now have a party political government.

Our Constitution is silent on the relationship between the executive and the political party in power. While it makes clear that the President is the head of the executive and that the executive governs the country (along with his cabinet members who are all accountable to Parliament), this power is a tenuous one – as Mbeki found out when he was fired.

Because the Constitution also allows the majority party in the National Assembly to “recall” the President by adopting a vote of no confidence against him, the President has no independent power base separate from the party who elected him. Given the fact that members of the National Assembly serve at the pleasure of the party and can be removed from their jobs at any time, the party leadership has a decisive say over members of Parliament, can therefore instruct them to take any action in Parliament and can thus also instruct them to fire the President. Through this threat of removal the party leadership can decide who serves as President and can also ensure that it tells the President how to serve.

President Zuma seems so scared of the party leadership – from Julius Malema down (or is it up?) – that he acts more like an automaton than like the leader of a modern constitutional democracy.

This latter explanation for the President’s embarrassing interview will mitigate against the view that President Zuma is no more than our own Sarah Palin. Let us hope the second explanation is true. Otherwise our President would not only be rather dim-witted (a bit like PW Botha who was definitely not the sharpest tool in the shed), he would also be out of his depth, ignorant and spineless. And if that is the case, we are all in big trouble – unless Kgalema Motlanthe or Gwede Mantashe is really governing the country from behind the scenes, in which case we might not be in as much trouble as it might have seemed from watching the interview.

Why all the fear, paranoia and distrust?

Why do South Africans generally seem so distrustful, fearful, and paranoid of one another? When ANC leaders or supporters do something Helen Zille does not like, she is quick to claim that it is all part of an ANC plot. When someone criticises the appointment of the CEO of the SABC, the MK War veterans claim the CEO is the victim of a plot to undermine both Minister Siphiwe Nyanda and President Jacob Zuma. We also had the “plot” against Schabir Shaik and President Zuma and the many “plots” against then President Thabo Mbeki, not to mention the “plot” by the TAC to poison South Africans with anti-retroviral drugs.

Many South Africans seem to live in constant fear of fellow citizens and believe that fellow citizens are continuously plotting to do them harm. Even legitimate academic curiosity (like asking whether polygamy would be constitutional or not) are turned into a paranoid and defensive fight as it is seen as part of a “plot” to attack or undermine a specific culture or the beliefs of a specific race group.

What’s going on?

Of course, as Alan Arkin once remarked (or was it William Burroughs?) “Just because you’re paranoid doesn’t mean they aren’t after you”.  Nevertheless, the South African obsession with plots and the tendency to see a conspiracy under every bush (just like the National Party saw a communist under every bush or under every bed) seems a bit extreme.

One way to explain this paranoid obsession with plots and conspiracies is to argue that those who allude to them do not really believe that there are plots and conspiracies against them and their group, but merely make use of a device to try and shut up criticism to avoid having to justify their crooked or unethical behaviour. By claiming that one is being persecuted, one never has to answer legitimate questions about the criticism or charges levelled against you.

Hence, Hillary Clinton spoke of a “vast right-wing conspiracy” against her husband during the Monica Lewinski scandal. This allowed her and her husband to portray themselves as victims and helped to confuse things so that the public would not remember that Bill Clinton really did have sexual relations with that woman (or to forgive him for it).

Similarly, President Jacob Zuma’s claim that there was a conspiracy against him allowed him never to have to answer a few basic questions regarding the charges brought against him. In President Zuma’s case, this tactic was particularly successful because it seemed rather likely that while evidence about his corrupt relationship with Schabir Shaik was clearly very real, he might well have been singled out for prosecution while others more friendly to then President Thabo Mbeki were never prosecuted.

A second explanation is that many people really have a fundamental misconception of the way in which the right to freedom of expression, the Rule of Law and accountable government are supposed to protect everyone in society from lies, corruption and dishonesty. Leaders are placed on a pedestal (Helen Zille just as much by her supporters as Jacob Zuma by his) and any questions about the wisdom, integrity or ethics of a leader are seen as treasonous attacks on the collective identity of the supporters.

Leaders are often seen (and then begin to see themselves) as not being subject to the same rules and degree of scrutiny as ordinary workers. Because leaders are “important”, “special” or “exulted”, they must be treated in a special manner and should be shown special respect and should be deferred to – no matter what they do or say.

This view flies in the face of what is expected from leaders in a constitutional democracy where leaders are servants of the people (and therefore are not viewed as especially “important” or “special”). In such a democracy leaders should expect to face more (not less) scrutiny, criticism and even ridicule than ordinary citizens who are not servants of the people.

Third, I suspect South Africa’s long history of racial oppression and the struggle for freedom that resulted from it have also warped views and made many of us far more paranoid than we should be. Many white South Africans were scared into supporting the National Party with “Swart Gevaar”, Rooi Gevaar” and sommer any other kind of “Gevaar” tactics, which played into the underlying racism in the white community and made many whites fearful and deeply distrustful of black people in general and black political leaders in particular.

Most if not all black South Africans experienced first hand the racial arrogance, disdain and hatred by many white South Africans and suspect that despite the changes brought about by the transition to democracy, the vast majority of white people harbour an irrational, racist animosity towards them – even if this is now sometimes disguised by politically correct platitudes.

No wonder people do not trust each other and are often prepared to believe the worst of those who criticise them or the leaders they feel emotionally close to. Such feelings are of course exploited by politicians for their own nefarious ends and are exacerbated by the cynical or racist actions of supporters across the political divide.

The important question is of course: how can we get past this paranoia, fear and distrust and arrive at a place where it would become possible to have a relatively reasoned discussion about the merits of leader X or Y without anyone ranting and raving about “plots”, conspiracies” or racism.

Maybe in 2010 we should start a discussion on this important question, because if we fail to answer it, unscrupulous politicians will exploit our fears and hatreds to escape responsibility for their own failings – and all South Africans, but especially poor and marginalised one’s relying on the state to create the conditions for a better life for them and their children, will continue to suffer.

Medical Miracles (ad infinitum)

Schabir Shaik, who was convicted of bribing President Jacob Zuma and sentenced to 15 years imprisonment for bribing our President, was unlawfully released from prison on 3 March 2009 on medical parole “to die a dignified death” because he was supposedly in the last stages of a terminal illness. Mr Shaik has now been a free man for more than 250 days after being released for supposedly being at death’s door, which just goes to show that he was released based on lies and deception.

Of course, we know Shaik was not at deaths door (because we saw the report prepared by the doctors who never said that he was in the last stages of a terminal illness), and we thus know for a fact that the parole board released Shaik unlawfully as Shaik did not meet the legal criteria for release.

Meanwhile Shaik has been spotted playing golf (but not – yet – doing what that other famous golfer seems to have been doing over the past few years). A medical miracle indeed.

In a written reply to a parliamentary question by the Democratic Alliance, Correctional Services Minister Nosiviwe Mapisa-Nqakula said  last week Shaik was authorised to attend physiotherapy from 10.30am to 12.30pm on the Wednesday when he was spotted on the golf course, which prompts one to wonder whether his physiotherapist might not be an avid golfer.

The newspaper article about him allegedly being spotted playing golf at a club in Durban was brought to his attention and an explanation was requested from him. “Mr Shaik submitted a statement in this regard wherein he refuted the allegation,” Mapisa-Nqakula said.

So, let’s get this straight. The Minister is taking at his word, a man who was convicted of fraud and corruption and was found by the trial judge to lack any honesty and credibility. I really have a nice piece of lush forest land in the Karoo I want to sell to the Minister along with shares in a pyramid scheme. Come to think of it, maybe I can get the Minister to ask Father Christmas to bring me a Porsche. (I have always been envious of the Judge President because he drives a Porsche while claiming to care about transformation and the poor.) If she believes Shaik, she must surely also believe in Father Christmas, the tooth fairly and the integrity of the arms deal.

Mapisa-Nqakula also said she had no evidence that the doctors erred in their recommendation to grant Shaik medical parole, nor that the Correctional Supervision and Parole Board erred in its decision. Well, this is unfortunately not true. The Act states that a person has to be in the last stages of a terminal illness and THEN the parole board can consider him or her for release. The doctors never said that Shaik was in the last stages of a terminal illness, hence the parole board erred. The Minister’s claim that there is no evidence that it erred is so preposterous and laughable that it really casts a very dark shadow over the integrity and honesty of our Minister.

It is amazing how some among us would not play fast and loose with the truth in order to ingratiate yourself with The Leader.

We all know Shaik was released because that is what President Zuma wanted. The fact that the release was illegal is just by the by. It has been more than 250 days now since the parole board has first acted unlawfully and since various Ministers have condoned this unlawful actions by providing ridiculous and untrue explanations for the release, for the legal basis of the release and for the reasons not to refer the matter to the parole appeals board.

Nothing will of course be done about this flagrant disregard of the law in order to benefit the man who bribed our President, because in the world of some people the law only applies to ordinary people – not to friends of the President (especially not friends of the President who bribed that President) and definitely not to her holy highness the Minister of Correctional Services.

Wonder how long before we spot Shaik having tea with President Zuma and Julius Malema? Another 250 days perhaps?