Constitutional Hill


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.

JSC, Minister doth protest too much

When Justice Minister Jeff Radebe (that guy who masterminded the scandalous decision of the JSC not to investigate the complaints of gross misconduct against John Hlophe because it feared that a real investigation would have to lead to the impeachment of Hlophe) gave a speech yesterday at the farewell for five justices of the Constitutional Court, he sounded rather defensive.

Instead of mouthing warmhearted platitudes about our highest court – as one would have expected of a good politician – he spoke for fifteen minutes in defense of the JSC. He said the true test of the JSC’s character was that it was “fair, honest, and focused on providing the president with a cadre of justices from which he will make his decision”. The test was “not the accolades that arise as a consequence of whom they did not short-list as much as who they did”.

Of course the JSC did not embarrass itself with the compilation of the Constitutional Court short-list, but rather when it made an inexplicable decision to let John Hlophe off the hook and condoned lying by a judge.

No matter what the Minister says now, nothing can erase the fact that the JSC decided that it had nothing to do with it that a judge of one of our highest courts had lied under oath (and maybe that same judge had lied several other times to the media or under oath – that judge being John Hlophe, seemingly a pathological liar.

The fact that the Minister is now so defensive about the JSC suggests that he does have some shame and that he feels a bit embarrassed about the indefensible decision of the JSC. Maybe this is a good thing as it suggests the Minister of Justice  understands what is right and wrong, what is legally and constitutionally required and what cannot be justified – he just chose for expedient reasons not to do what is right and not to obey the Constitution.

That is marginally better than having a Minister of Justice who acts unlawfully and does not even recognise that his actions are scandalous. Maybe there is something to work with there. Maybe he can still be convinced that following the Constitution and the law is not optional and that condoning the lying ways of a judge in the long term will hurt us all.

If he does not and if he thinks it is perfectly fine that a leader of our judiciary continues on the bench despite the fact that he is a pathological liar and a skel, well, then god help us all.

ANC, walk the walk on corruption!

Members of the ANC caucus are a forgiving bunch. Yesterday the caucus issued a statement in support of fellow MP, Nyami Booi, who earlier this week was convicted of stealing money from Parliament. The caucus stated – correctly – that the Constitution does not prohibit a criminal like Booi from serving as an MP. One is only prohibited from serving as an MP if convicted of a crime and sentenced to more than 12 months imprisonment without the option of paying a fine.

I have re-read the Constitution and to my shock discovered that the Constitution is silent on many things, which – on the ANC caucus logic – allows for a lot of ethical leeway in public life. It does not prohibit an avowed white supremacists from being appointed Chief Justice, nor does it prohibit Wouter Basson from being appointed South African Ambassador to the United Nations. Neither does the Constitution prohibit the appointment of a wife beater to head the Commission for Gender Equality or a child rapist from being appointed headmaster of a primary school frequented by MP’s children.

If the ANC caucus were to be consistent and were to followed its own logic, it would therefore wholeheartedly support all of the above appointments. After all, a commitment to ethics, logic and common sense does not come into it. As long as something is not prohibited by the Constitution it must be worthy of support.  And as neither the Constitution nor other legislation criminalises racial discrimination, one would have to assume that the caucus would also support any MP found to have discriminated against anyone else or to have uttered despicably racist sentiments.

I happen to have a different view. It seems to me that political parties have an ethical duty to take a principled stand against corruption and should fire any criminal who had been convicted of stealing from Parliament. Let me quote from something I wrote previously to demonstrate my point:

Corruption in the public sector means theft of resources that belong to the people. In the private sector, it deprives the economy of resources that would be used to increase the national wealth, and thus create the means to meet the needs of the people. Corruption takes many forms:  abuse of power; manipulation and misrepresentation of facts; opportunistic theft of government resources; planned theft of government resources; tender manipulation; bribery; dereliction of duty; any action for illegitimate and illegal gain or profiteering.

Corruption in the public and private sectors therefore directly undermines the critically important national effort to defeat poverty and underdevelopment, and thus ensure sustained progress towards the achievement of the goal of a better life for all. It entrenches poverty and by diverting key resources away from programmes designed to improve the quality of life especially of the poor, it negates the potential for development. Accordingly, corruption benefits the few, and harms the majority.

Public servants and political office bearers have a responsibility to lead by example. None of the objectives of development can be attained if the state of corruption is high in the public and private sectors, and is condoned by and/or rampant in society as a whole. Laxity in executing public service duties constitutes corruption. Most of the public servants employed in government today are not from the apartheid era, but were engaged during the democratic dispensation. Apartheid cannot be blamed every time we fail to discharge our responsibilities or get involved in corruption.

As a society we must resist the worshipping of the value-system that deifies individualism and the material possession as the pinnacle of human success. Only through broad and sustained efforts to create a shared future, based upon our common humanity in all its diversity, can we succeed to defeat and eradicate the value system that justify naked selfishness represented by acts of corruption.

We need politician and civil servants who share the vision of our government and people; and who can manage the inherent conflict of interest between personal and public interest. In this way, we will succeed to create a harmonious relationship between the private and public interest, and treat these two as not mutually exclusive.

We all have a role to play in this war against crime and corruption. We must actively participate in Community Policing Forums. We must stop buying stolen goods, which encourages crime. We must report crime and assist the police with information to catch wrongdoers. In this way, we will move forward towards a crime-free society combating corruption.

The ANC as an organisation must place the elimination of corruption high on its agenda by ensuring that: branches and members are educated on the various forms of corruption and the necessity for its eradication; a nationwide anti-corruption campaign is initiated and mechanisms developed to build a link between state intervention on corruption, and our movement’s own initiatives and responses to the matter; every ANC cadre must be offended by acts of corruption and prompt disciplinary action must be taken against any member, regardless of office, who is guilty of any corrupt practice.

We cannot continue to allow our new democratic state to be indistinguishable from the previous such that national democracy would seem pretty much like apartheid and thus be equally doomed. To succeed in combating corruption, it is not enough that people should fear the law and punishment; they must also be ethical and possess the ethos that makes corruption fail to thrive.

We must inculcate a culture of hard-work in society as a whole; and the leadership must lead by example. At the same time, we must strive to achieve a balance and harmony between both material and spiritual needs. There is need for united action by all stakeholders such as political leaders, business leaders, civil society, public intellectuals and academics, and others, to expose the root causes of and combat corruption. We must implant in society as a whole the values of integrity, hard-work and respect for public resources and the common good.

Dear reader, I apologise for deceiving you. I did not write the above. It is in fact a (slightly edited) version of an article which appeared in ANC Today on 5 June 2009. But the piece admirably sets out the ANC policy on corruption and if we were to take it seriously we would demand that the ANC immediately repudiates its caucus and demands that Booi – and any other Travelgate criminals – resign from Parliament.

It is time for the ANC not only to talk the talk but also to walk the walk. It must fire the criminal MPs representing the ANC in Parliament forthwith. If it does not and offers the excuse that the Constitution does not demand it take action against MPs who steal from Parliament, I for one would find it rather difficult to believe anything the party says on this topic in future. It would also be difficult not to conclude that the ANC has no understanding of ethics and that it supports corruption and criminality by its own members.

It would be a sad day indeed in the history of the ANC.

ANC disciplinary steps against Travelgate MPs?

The Internet can be a wonderful thing. It can also be a bit of a bother. The thing is, a quick search on Google can recall statements and information published several years ago which some would want us rather to forget. Mr Paul Ngobeni, for example, did not contend with the power of the Internet when he made statements about his legal troubles in the US which later turned out to be about as accurate as anything Leonard Chuene might have said during the height of the Caster Semenya scandal.

I was reminded of this when I read that former ANC Chief whip, Nyami Booi, yesterday pleaded guilty to theft for abusing Parliamentary travel vouchers. Booi, who now chairs the National Assembly’s defence portfolio committee, was fined R50 000, or five years in jail, and given until January 2014 to pay the money in monthly instalments of R1 000. He was the last MP to face charges for the Travelgate scandal which have sullied the good name of our Parliament.

What will happen now?

Well, a quick search on Google reveals that both the ANC and Parliament have promised that as soon as all the Travelgate cases were finalised, action would be taken against MPs and party members convicted of theft for the travel fraud. On 19 September 2004 the ANC National Executive Committee released a statement dealing, amongst other things, with the Parliamentary Travelgate scandal. I quote:

The NEC noted the ongoing investigation into the alleged misuse of parliamentary travel vouchers. The meeting reaffirmed its support for a full and thorough investigation. It reiterated the approach of the ANC that:

  • the law must be allowed to take its course without let or hindrance, and that no person should be considered above the law;
  • the principle of presumption of innocence until proven guilty should be observed;
  • the ANC will institute disciplinary action against any of its MPs or other members found guilty of wrongdoing.
  • On19 March 2005, after the first five ANC members were convicted of fraud because of the Travelgate scandal the ANC said it noted the conviction and sentencing of its five MPs “with seriousness” and intended initiating “relevant organisational disciplinary processes regarding all its convicted members”.

    This would only be done when “the due process of law was completed on all ANC members”. Luwellyn Landers, chairman of the ethics committee at parliament, was quoted as saying he did not believe in “parallel investigations” and would prefer the justice system process to run its course before his committee decided whether or not to become involved in probing MPs’ conduct.

    As the matter has now been concluded and the “due process of law was completed”, one would obviously expect both the ANC and Parliament to keep its word and to deal with the thieves in their midst in an appropriate manner. I for one take no delight in the Travelgate scandal and feel rather sad and distressed by the whole affair and the way it has tarnished both the ANC and our Parliament.

    Parliament and the ANC are both important institutions that play a pivotal role in our democracy. Parliament does not only function as our legislature, but also has a constitutional duty – in terms of section 55(2) of the Constitution – to hold all organs of state accountable and to exercise oversight over the executive and all organs of state. The ANC, in turn, is by far the strongest party in Parliament and, at present, forms the government of the day and has a majority on the various Parliamentary committees tasked with oversight over the executive and holding organs of state accountable.

    It is therefore important for all of us that both Parliament and the ANC remain credible and trusted institutions who could command respect from ordinary South Africans. It is in no one’s interest that either the ANC or members of Parliament become known in the popular imagination as crooks and charlatans. If we lose all trust and respect for these venerable institutions, we will, in effect, lose trust in the ability of Parliament to fulfil its oversight and accountability functions. This will weaken our democracy because lack of respect for our democratic institutions and the organisation that currently leads it may well lead to general disengagement from those institutions.

    Instead of a loved and revered institutions (or at least respected and trusted institutions) we will have institutions that can only command authority through threats and abuse of power, relying on the might of the police and the army to enforce decisions taken by unpopular and distrusted people seen as serving only their own interests. Or, almost as bad, we will stop taking notice of these institutions – except around braaivleis fires and at comedy festivals where we will laugh at our representatives and mock their criminal ways.  

    That is why I applauded the statements quoted above at the time they were made, and why I sincerely hope that the ANC and Parliament will keep their word and will take swift action against the thieves who stole our money. I would imagine one way of restoring trust in both Parliament and the ANC while acting in a fair and humane manner would be for the ANC to take effective disciplinary action against its members found guilty of theft.

    If I were an ANC disciplinary committee member I would have proposed a one year suspension of the membership of all ANC members found guilty of stealing taxpayer’s money. The ANC members found guilty of theft who still sit in Parliament will then automatically lose their seats in Parliament, but the harsh effects will be tempered by the fact that they could be readmitted to the party in one year’s time. This would demonstrate a forgiving spirit towards the MPs, while also sending a strong signal to ordinary voters that the ANC does not condone theft and dishonesty amongst its members.

    If this happens, we may be able to move on; not in a spirit of I-told-you-so vengeance, but rather proud that our institutions are working as they should. Personally, I will be very happy to forgive all the thieves currently sitting in Parliament (as well as the party they serve), if such appropriate action is taken against them. This may then also allow us to begin to rebuild the trust in both the ANC and in the Parliament it currently dominates.

    Human Rights Commission appointments not up to scratch

    Ever since the “Polokwane Revolution” at the end of 2007 – and even more so after the April election - ANC members of Parliament seem to be confused. When Thabo Mbeki was President of the country and of the ANC, that organisation’s MP’s more often than not followed the “party line” no matter what. This meant that Ministers were seldom held to account and the Presidency – often through the “good work” of Essops Fables - instructed MP’s on who to appoint to key positions.

    The disastrous SABC Board, nominated by the National Assembly at the end of 2007 and appointed shortly afterwards by Mbeki, is a case in point. After MP’s had finalised a list of names for appointment to the SABC Board, ANC MP’s were instructed to change that list, which it promptly did. And we all know what happened then.

    Under President Jacob Zuma things are far more complicated for MP’s. There is seldom a Friday “Letter from the President” helping MP’s to decide what they are required to think and how they are supposed to act to advance their careers. And because various factions in the Zuma cabinet seem to be at loggerheads with each other and the President himself does not always get involved in the skirmishes between his Ministers, poor MP’s are afraid and confused as they do not know what the “party line” is anymore.

    Sometimes this is a good thing. It leaves MP’s with some room to make sound decisions in the interest of the country. Many Parliament watchers were pleasantly surprised, for example, when a special committee of Parliament recommended Thulisile Madonsela for appointment as the new Public Protector. For once all parties agreed on the nomination to one of the Chapter 9 institutions. An independent woman with sound legal knowledge, her appointment has been lauded even by civil society groups.

    But then, just when one was ready to sing the praises of the emerging independent spirit of ANC MP’s, they go and nominate some rather dodgy characters for appointment to the South African Human Rights Commission (SAHRC). 

    The list includes Ms Lindiwe Mokate (full-time), who worked as the CEO of the SAHRC before leaving that organisation under a cloud in 2005. The SAHRC was beset with difficulties during her tenure and there was an exodus of staff and reports of victimisation by senior management. In July of 2005, unhappy staffers wrote an open letter to National Assembly Speaker Baleka Mbete saying that at least 15 staff members had resigned in the first six months of the year and asking for her urgent intervention to save the commission from a “crisis”.

    Another name is that of Adv B Malatji (full-time), who was the Chief Director: Legal Services in the Department of Home Affairs at a time when that Department gained the reputation as the most dysfunctional government Department. To be fair, it is unclear whether Adv Malatji did anything to stop the rot or did himself contribute to the malaise within the Department. During his tenure the Department did pilot several pieces of progressive legislation through Parliament, so personally I would be happy to give Adv Malatji the benefit of the doubt.

    Not so with Adv Lawrence Mushwana (full-time), who used to be an ANC MP before he became a useless and sycophantic Public Protector. In July Judge JNM Poswa delivered a damning judgment in the North Gauteng High Court in which he set aside a “report” (well, more like an excuse for a report, also called a “whitewash”) by the Public Protector into the so called Oilgate scandal. Mushwana became notorious for failing to properly investigate complaints against powerful ANC politicians, so one can only despair that he will now be appointed to the Human Rights Commission.

    But Mushwana is, sadly, not the worst of the bunch. Parliament also nominated Adv Loyiso Mpumlwana (full-time), only to discover that he did not disclose that he had been fired by the Truth and Reconciliation Commission in 1997. This fact only came to light shortly before the National Assembly voted to nominate Mpumlwana as a full-time commissioner.

    The various political parties who belatedly discovered the fact that Mpumlwana was less than honest about his past are expected to bring their concerns to the attention of the National Assembly’s Justice Committee when Parliament resumes its work next week. Mpumlwana was fired for not doing his job and for holding down a job with the TRC while also having a full-time job with the Eastern Cape government.

    The problem is that Parliament has already voted for his appointment and the President has no choice but to appoint him, unless Parliament now reverses its decision. One sincerely hopes that MP’s will bite the bullet and will reverse its decision to ensure that this dishonest man does not become one of the custodians of our human rights at the SAHRC. Really, it’s a bit like appointing Leonard Chuene as the head of an Honesty and Integrity Board or a Truth Commission. The MP’s should surely have the right to reverse its decision, if not on the basis that Mpumlwana was fired by the TRC, then at least on the basis that he misled Parliament by failing to disclose this fact to it.

    Parliament also nominated two “minority candidates” (as Julius Malema would call them in a more coherent moment when he is not recovering from a night of debauchery with his friend Jonny Walker Black) as part time commissioners. Janet Love, a respected human rights attorney with a deep and abiding commitment to human rights made the cut, so there will be at least one sane voice on the SAHRC.

    But Dr Danny Titus, the head of the Bruin Belange Inisiatief  and the erstwhile head of the Afrikaanse Taal en Kultuur Vereniging (ATKV), a right wing “cultural organisation” fighting for the interest of the Afrikaans language and culture, also got the nod. Although Titus is a lawyer and seems to be quite well known amongst Afrikaners (who likes Titus because he gives their fight to retain special rights and privileges for Afrikaans some legitimacy), there were far better candidates on the shortlist who did not make the cut.

    Why did the ANC controlled committee nominate some of these characters when so much better candidates applied for appointment? Why was the process politicised? Why were candidates with a strong human rights background and a track record of fighting against racism and discrimination not appointed? It is not as if the SAHRC can declare invalid actions of the executive or the legislature. It is suppose to promote and protect the human rights of ordinary people and the more effective and passionate the Commissioners are, the better ordinary people will be served.

    Maybe some of these Commissioners will surprise us all and will do sterling work. But do not hold your breath.

    Not lazy, just callous and disrespectful of the Constitution

    When Prof Jonathan Jansen called Basic Education, Minister Angie Motshekga, a “lazy and incompetent minister”, that great charmer and former spin-doctor of the ANC, Jessie Duarte, was not amused. Duarte, who during her time as spin-doctor developed the brilliant media strategy of insulting and attacking any journalist who dared to ask her a question, at the time stated that this (admittedly grave) insult was “reminiscent of the utterances made by the Apartheid ideologues of the old order”.

    I am therefore in a bit of a pickle.

    Although Duarte has now been “redeployed”, I really don’t want her to rise from the ashes and call me a racist. Duarte, who some years ago was forced to quit as Gauteng’s minister for safety and security after a commission of inquiry found there was a “strong suspicion” she had covered up a car accident while driving without a license, would surely not like it if I expressed the opinion that the former Minister of Justice (who, like Judge Motata, really likes drinking tea), any of her officials or the members of Parliament were lazy and incompetent.

    But how else does one explain the fact that the the Minister of Justice and Constitutional Development, the relevant officials, and Parliament had failed to comply with a previous order of the Constitutional Court handed down in June 2008 ordering it to pass legislation within 12 months that would allow for the effective enforcement of court orders for judgment debt against the state? In that case the majority of judges of the Constitutional Court declared invalid section 3 of the State Liability Act because it did not provide for the satisfaction of judgment debt against the state.

    Now 14 months later, nothing has been done. No, that is a bit unfair to the Ministry and its officials. Some bright spark somewhere in the Ministry did get the idea a few weeks ago that this problem could be fixed by amending the Constitution to prevent the courts from testing an identical provision from that declared invalid by the Constitutional Court against the provisions of the Bill of Rights. That industrious official (note, please Jessie, I am not saying anyone is lazy or incompetent!) did not realize that such an amendment would undermine the supremacy of the Constitution and would amount to an amendment of section 1 of the Constitution for which a 75% majority was required. (See the seminar room elsewhere on this Blog for my submission to Parliament pointing this out.)

    But no law has yet been passed as ordered by the Constitutional Court, so the Ministry had to approach the Constitutional Court again to request an extension and yesterday that court granted the extension, giving the Minister two more years to fix the mess it had failed to fix in the previous fourteen months. The case demonstrates the difficulties courts can find themselves in when their orders are ignored. Given the fact that I would not dream of calling anyone responsible for this mess lazy or incompetent, the case also casts doubt on the Ministry’s commitment to constitutional governance and respect for court orders. Maybe the officials and the Minister are just contemptuous of our Constitution and the highest court who has to apply it?

    Because of the manner in which the original order was formulated, the Constitutional Court had little choice but to grant the extension. Unlike the Ministry and its officials, the Constitutional Court is a conscientious body who takes its duty to act responsibly and reasonably quite serious. If the Court had refused the extension, any state assets – including medical equipment and computers – could have been attached for outstanding judgment debts and this potentially would have caused chaos.

    (Maybe Jessie is not reading this after all, so I will be so bold as to add that one could also have said the attachment of some state assets has the potential to cause more chaos than the chaos already well known to us long suffering South Africans who, say, make use of the services of the Department of Home Affairs.)

    In order to prevent the recurrence of this deeply troubling disregard for an order of the Constitutional Court, the Court yesterday gave parties until 15 September to give reasons why an interim order should not be made. This order would allow for the attachment of state assets for the satisfaction of judgment debt if certain requirements are met.

    The order would also allow the state to prove that the court order for the attachment of state assets would not be in the interests of justice and good governance and a court could then set such an order aside. This would prevent the attachment of state assets that might be essential for the smooth working of government. If this order is confirmed, it would put in place a system that would expose the state to a considerable degree of risk, which means the Ministry would have an incentive to fix the problem that it was too, well, not lazy, exactly, but perhaps too callous to fix over the past fourteen months.

    R.I.P. Human Rights Commission?

    The South African Human Rights Commission is not without its faults: It is not always consistent in the way it tackles human rights issues and because of resource constraints and occasional ineffectual management it sometimes fails to deal speedily and effectively with complaints by ordinary citizens about the infringement of their rights. However, compared to the other institutions set up in terms of the Constitution to promote and protect human rights, it has done sterling work.

    Because the Chairperson and all but one of the present Commissioners must retire next month, Parliament has now begun the process of appointing new Commissioners. And there are worrying signs that the ANC majority in Parliament will deal a fatal blow to the Human Rights Commission by “deploying” mediocre ANC party-hacks with little human rights experience to that important body, a body that can play a huge role in helping ordinary (often poor and marginalised) citizens to gain access to justice to help them enforce their rights.

    The Constitution states that the Human Rights Commission is independent and that it must act impartially and must exercise its (considerable) powers and perform their functions without fear, favour or prejudice. Parliament has a constitutional duty to assist and protect the Human Rights Commission and to ensure its independence, impartiality, dignity and effectiveness.

    An ad hoc committee of Parliament has drawn up a preliminary shortlist of candidates to be interviewed.  The list of names nominated by the ANC is, to say the least, underwhelming and troubling.

    It includes the names of Benjamin Ntuli (a former ANC MP who failed to be re-elected to Parliament in April); Andre Gaum (a guy who tried to censor the student newspaper at Stellenbosch when he was on the SRC, is an old National Party politician who jumped ship to the ANC and then became deputy Minister of Education, but also failed to make it back to Parliament in April); Mochubela Jacob Seekoe (a former South African Ambassador to Russia with a Chemistry degree from Moscow); Maxwell Moss (a former ANC MP who failed to make it back to Parliament in April) ; Lindiwe Mokate (a former chief executive of the Human Rights Commission who resigned after a disastrous  and highly controversial stint there); Lawrence Mushwana (the Public Protector who has shown a spectacular lack of independence and whose Oilgate report was set aside by the Gauteng High Court recently because it failed properly to investigate the complaint implicating the ANC); Wallace Mgoqi (former city manager of Cape Town implicated in several dodgy decisions taken during his tenure there); and Ephraim Mohlankane (who has such a stellar career that a Google search reveals a full zero entries under his name).

    What makes this list so deeply depressing is that far more credible and worthy candidates actually applied to become Commissioners.

    The list of credible candidates include Andile Mngxitama (a writer and publisher of “Frank Talk”, the latest edition arguing that blacks cannot be racist); Prof Jeremy Sarkin (who used to be a Senior Professor in Public Law at the University of Western Cape and is a member of the UN working group on enforced and involluntary disappearances); Adv Tseliso Thipanyane (current CEO of the Human Rights Commission and former Public Law academic);  Dr Janet Cherry (who was detained for 342 days by the apartheid security police, worked for the Truth and Reconciliation Commission and teaches sociology);  Dr Bukelwa Hans (former South African Ambassador to Finland); Bishop Paul Verryn (who opened the doors of the Central Methodist Church in Johannesburg to refugees and has worked tirelessly for the poor and the marhinalised); Hanif Valley (lawyer for the Truth Commission and published author); Nozizwe Madladla-Routledge (former deputy minister of Health and general independent spirit); Prof Hussein Solomon (lecturer in political science); and Pritima Osman (who has a long history of doing human rights based NGO work).

    (To be fair, the nominations supported by opposition parties also contain the names of a few has-been politicians, but unlike the ANC list, the majority of the individuals nominated by opposition parties have shown at least some knowledge of and commitment to human rights.)

    Of course, the mere fact that an individual is a member of the ANC (or any other  political party for that matter) should not disqualify that person from a job on the Human Rights Commission.  Justice Albie Sachs was a prominent member of the ANC before elevation to the Constitutional Court and he turned out to be a brilliant judge who handed down some of the most progressive judgments of the court.

    The question is whether there is a reasonable apprehension that the relevant candidate will be biased and will not act without fear, favour or prejudice. Some of the ANC candidates might well pass this test, but the fact that a large number of failed ANC politicians appear on that party’s list for appointment to the Commission, suggests that the Commission is in danger of becoming no more than a dumping ground for party hacks. This has the potentially fatally to undermine the independence and impartiality of the Commission.

    As the Asmal Report made clear, an invigorated and well resourced Human Rights Commission could play a major role in addressing the deeply troubling fact that most South Africans (especially poor and marginalised black South Africans) do not have access to lawyers and cannot enforce their rights and the obligations of others towards them in courts. If a majority of has-been politicians are appointed to the Commission, the Commission will not be able to fulfill this role and all this talk about the transformation of the legal system to provide better access to justice for all South Africans would have been no more than empty rhetoric.

    I sincerely hope that cooler heads will prevail and that the ANC will not use its majority in Parliament to nominate candidates who – through their words and actions – have not demonstrated a deep commitment to human rights. The Human Rights Commission can really make a difference. Even if Parliament nominates only individuals who are generally sympathetic to the ANC, there are enough talented individuals on the list to give the Commission at least a shot at being relevant.

    However, if the ANC pushes through its current list, the Human Rights Commission will almost certainly become a toothless tiger and the constituency most in need of its services – the poor and the marginalised – would have been sold down the river once again.