Constitutional Hill


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.

    Opposition parties shoot themselves in the foot

    It is clear that President Jacob Zuma made a mistake when he announced his “nomination” of Justice Sandile Ngcobo as new Chief Justice before asking opposition parties for their opinion on the matter. He made things worse during the news conference following the announcement when he said – in response to a question – that he had “appointed” Ngcobo.

    Section 174(3) clearly states that:

    The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.

    If this had happened when that other guy (what is his name again?) had still been President, the mistake would probably have been denied and a vigorous ad hominem attack would have been launched (either personally in his weekly internet letter or through henchmen like Essop’s Fables) against the opposition for complaining about the matter.

    President Zuma did the right thing, admitting that he had made a mistake and writing a letter to the leaders of opposition parties and explaining that he used the word “appoint” in response to a question from the media. This, he wrote:

    was inadvertent and does not change the fact that I had decided merely to nominate Justice Ngcobo to this position. It is common cause that you first nominate, and then open the consultative process. Our reading of the Constitutional provisions regarding the appointment process does not preclude the President from proposing a name. In fact, the practice as followed in the past has generally been for the President to ask the parties to state their views on a particular name.

    Please rest assured that I have not appointed a new Chief Justice, nor have I taken a final decision on whom to appoint as the new Chief Justice, but reiterate my confidence in Justice Ngcobo as my preferred candidate. In making my final decision, I will of course take into account any views the leaders of political parties may express about him.

    The President does not have to follow the advice of the opposition parties after consulting them on the Chief Justice, but he must (as his letter makes clear) keep an open mind and listen to the opposition parties before going right ahead and appointing anyone he pleases. The provision that he must appoint a Chief Justice “after consultation with” opposition parties is thus a fomalistic one and it would be surprising indeed if any president (from whatever party) ever changed his or her mind after consulting the opposition about such an appointment.

    I am therefore surprised that the opposition parties have refused to accept President Zuma’s apology and admission that he made a mistake. It is not as if it will change the outcome of the process, and by harping on about this even after an apology and admission that a mistake was made, seem churlish and petty in the extreme.

    There are far more important constitutional issues they should be concerned about and which they could rightly complain about: the probable unlawful dropping of charges against Zuma, the probable unlawful release of Schabir Shaik and the Constitutional 17th and 18th Amendment Bills which will erode the testing right of the courts are all important constitutional issues opposition parties could rightly get upset about.

    Now they natter on like little children who received a slightly smaller piece of the birthday cake. They run the risk of being perceived as the boy who cried wolf once too often so that when they complain about something really important people will just say: well, there they go again complaining about everything.

    They claim Zuma’s apology and admission is just an artificial move with no substance and that he should withdraw Ngcobo’s nomination. But style and substance often overlap and I, for one, would like to applaud our President for facing up to his mistake and taking steps to rectify it. The fact that opposition parties seem to find it impossible to display the same kind of magnanimity and humility as the President, says much about what is wrong with opposition politics in our country.

    If one cannot distinguish between the important issues worth fighting about and the trivialities, one loses one’s credibility. This has clearly happened in this case and in the end Zuma, despite the mistake, emerges as the winner of this spat.

    Too early to tell?

    Why has President Jacob Zuma decided to appoint Justice Sandile Ngcobo as Chief Justice? What does it say about the ANC and the President’s view on the independence of the judiciary and its role in our constitutional democracy? Justice Ngcobo will serve only 18 months as Chief Justice before President Zuma will again have the opportunity to appoint a Chief Justice – this time perhaps from the four new appointments to be made later this year.

    There will be doomsayers who will pull out their hair (if they have any left), gnash their teeth and shout to the heavens because, so they will claim, the ANC is busy fundamentally to undermine the independence of the judiciary and the appointment of Justice Ngcobo is just a stop-gap measure to pave the way for the appointment of John Hlophe as Chief Justice in two years time when Ngcobo must retire.

    It seems to me such an analysis will be too simplistic. In my opinion the move should be interpreted as part of a long-term strategy by the ANC to speed up the implementation of what it sees as the “transformation” of the judiciary. President Zuma has demonstrated over the past few months that he does not want to rock the boat and likes to make appointments that will not be too controversial.

    As I have said before, Justice Ngcobo perfectly fits this bill as he will be the longest serving Justice on the Constitutional Court when he takes office as Chief Justice, is highly respected among other judges and lawyers and does not have the kind of baggage associated with some other judicial disasters.

    At the same time, Ngcobo will retire in 2011 and the President will then be able to appoint another Chief Justice perceived to be more pliant and more executive minded. Like the US President who would want to appoint a Supreme Court justice whose philosophy closely resembles his own without upsetting public opinion too much, Zuma has therefore decided to appoint a safe Chief Justice and this will allow him to appoint another Chief Justice in 2011 when his power may be more deeply entrenched and he will thus be less fettered by concerns about rocking the boat.

    This is not a short term game, but part of a long term strategy to “transform” the judiciary in line with the ANC January 8 statement of 2005 which said:

    However, we are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination.

    The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole.

    Of course, it is unclear whether this statement means the ANC sees a “transformed” judiciary as one staffed by judges who will defend the constitution and the rights of the masses of our people whose rights will in the future as in the past – often! – be infringed by the legislature the executive and other powerful institutions, or whether it wants a judiciary staffed with judges who will conflate the interests of the masses of the people with the interests of the ANC ruling elite and will not check the abuse of power by the governing party, its lackeys and the business elites.

    But these are of course things one can legitimately argue about in a democracy. Meanwhile the appointment of Justice Ngcobo provides some support for the view that the ANC really wants an independent judiciary and not a judiciary who will be too scared to enforce the rights of ordinary citizens.

    However, the real test will come when the President has to appoint four new judges on the Constitutional Court and when Ngcobo retires and he has to appoint a new Chief Justice. Only then will we have a better picture of what the long term strategy of Zuma and the ANC regarding our judiciary might be.

    So, I feel a bit like Chairman Mao who when asked what he thought the impact of the French revolution was, famously replied: “It is too early too tell.”

    Can one buy food from “The Markets”?

    When Gill Marcus was appointed Governor of the Reserve Bank, newspapers reported that she was not unfamiliar to “the markets”. Her appointment was widely lauded by political parties and “market analysts”. This despite suggestions that Tito Mboweni was pushed from his job as Governor because Cosatu did not like his suits, his ties, his smile, or maybe his signature on our bank notes.

    “Her appointment sends an encouraging message to business and the markets and will have a positive impact on business and investor confidence.” said Busa Chief Executive Officer Jerry Vilakazi.

    “The markets” duly responded positively to her appointment and the JSE surged.  Two things bother me about the way her appointment was received.

    First, all this talk of “the markets” made me wonder again what exactly “the markets” might be. I have never seen “the markets” the analysts keep talking about and (unlike pornography) would not know it when I saw it. I somehow do not think one can buy pap and wors at “the markets”, nor can one have lunch with “the markets” or take it for a beer.  “The markets” is a bit like that other canard, “the moral fabric of society”.  (I have always wondered whether the “moral fabric” of society is something one uses to make wedding dresses from.)

    These things are invisible and intangible, yet they have achieved a mythical status in our society and is often held up as the sum total of wisdom and what is good in our world.

    I have a sneaky suspicion that “the markets” (like “the moral fabric”) is really a concept used to describe the prejudices, hidden assumptions and unexamined (but highly debatable) ideological commitments of a very specific group of people who make many of the decisions about stuff that affect our lives (or if they do not make the decisions, they try mightily to influence those decisions to their own best advantage).

    “The markets”, so I suspect, is really just a term to describe a group of rich, mostly white, selfish capitalists who believe in a very specific economic system and control much of the levers of the economy and can thus act in often irresponsible ways to give vent to their prejudices to wreck the economy, allow the Rand to tank, or ruin the banking system.  Similarly “the moral fabric of society” sometimes seems like the sum total of the prejudices, moral judgments and religiously inspired bigoted attitudes enforced  on society by self-appointed moral leaders in that society.

    Which leads me to my second point. Why were “the markets” so happy about the appointment of Gill Marcus? She was an ANC cadre in exile and on her return from exile took up a post in the ANC’s Department of Information and Publicity where she quickly became one of the ANC’s more prominent voices. As the ANC said in a recent announcement:

    Prior to the 1994 elections she criss-crossed the country tirelessly, training ANC media workers and voter educators and accompanied President Mandela on his many forays into the provinces. Marcus played a leading role in determining media poicies for the ANC in the run up to the 1994 elections. Elected to parliament, Marcus quickly established a widely respected reputation for her efficient, effective and no nonsense approach to her position of chairperson of the parliamentary joint Finance committee. She held this position from June 1994 until June 1996 when she was appointed Deputy Minister of Finance.

    The appointment of Marcus should therefore have been very worrying to “the markets”. Yet “the markets” have been very happy. Some have suggested the positive reaction of “the markets” and opposition political parties to her appointment can at least partly be blamed on racism. As S’Thembiso Msomi wrote in The Times this morning when he compared the different reaction to the appointment of Marcus and of the new Police Commissioner, Bheki Cele:

    In fact, the almost universal acceptance of Marcus’s appointment is in sharp contrast to the negative reaction that followed Mboweni’s first appointment to the post in 1999. He, too, was an ANC loyalist but went on to become one of the most respected heads of the central bank this country has ever seen and those who opposed him initially went on to become some of his staunchest defenders.

    In his case, the “cadre deployment” policy clearly yielded the right results for our country. There is a long list of other people whose appointments to various bodies were initially criticised, only for those individuals to later silence their critics by being diligent and fiercely independent in carrying out their assigned duties.

    It would be easy, but not entirely correct, to blame the difference in reaction to these appointments to racial prejudices that still prevail in our society.

    We live in South Africa, so chances are that Marcus’ race might well have played a role in the positive reaction to her appointment. But I suspect – like Msomi – that the issue is a bit more complex. The reason the appointment of Marcus was hailed by “the markets” and by opposition parties was because Marcus was viewed as a friend of “the markets”.  (She must really be good at keeping people guessing, because Cosatu also thinks she will be its friend.) Because she is white, because she was the Chair of Absa Bank, because she does not dress like a gangster, because she can speak that oracle-like language that “the markets” so admired in Allan Greenspan, she was seen as a “safe” appointment. “One uf us,” the markets would say.

    When we agree with the views of the person appointed, he or she is usually seen as a good appointment. When we think the person appointed is an idiot, a crook, a liar or a lazy sod, we will complain about the appointment. One of the (many) factors many people use to decide whether the appointee will be lazy, stupid and corrupt, might well be race, but it is seldom the only reason for their decision. (There are those idiots – both black and white – who use race as their only criteria to decide if an appointment is wise or not, but I would hope such people are in a small minority – even on the JSC.)

    Of course, this phenomenon is not limited to white people. It also has a reverse effect. That is why some people actually really believe that John Hlophe would be a good Chief Justice – despite the fact that he is an ethically challenged liar. That is also why some people think Hansie Cronje was not a crook – despite the fact that he tearfully confessed to taking bribes on national television.

    The Public Protector in the dog box

    Last week 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.  The judgment bends over backward to be “fair and balanced” and not to jump to conclusions about why the Public Protector failed so dismally to adhere to its mandate and to do its job as required by the Constitution and the law.

    However, after reading the full judgment it is impossible not to be concerned by the behaviour of the Public Protector’s office in this case and  not to wonder whether the author of the report, Public Protector head of special investigations Advocate Stoffel Fourie, acted in bad faith or whether he was “merely” incompetent and misguided when he failed to properly investigate complaints against the then Deputy President, the ANC, PetroSA and the Invume company whom the Mail & Guardian alleged at the time was a front company of the ANC.

    Sadly, this saga further tarnishes the reputation of the Public Protector and his office. Even before this case was handed down, the Public Protector did not – to put it mildly – have a good reputation as a fearless watchdog and was widely perceived to lack the independence and courage to make findings that would embarrass well-connected individuals or politicians of the governing party.

    To some extent this reputation was unfounded. The office of the Public Protector investigates over 20 000 complaints every year and has done excellent work, dealing with most of these complaints in a decisive and comprehensive manner.  The media does not report on the vast majority of these cases, and has focused only on those high profile politically charged cases where the Public Protector has often failed to deal with the complaints in a credible and comprehensive manner.

    The perception that the Public Protector was not as independent and fearless as required by the Constitution was fueled in part by the fact that Lawrence Muswhana was appointed as Public Protector in 2002 after serving as an ANC MP and as the Deputy Chairperson of the National Council of Provinces (NCOP).  This appointment was clearly a mistake as it created the impression – rightly or wrongly – that the Public Protector was an ANC lackey who would do everything within his power to shield ANC politicians and the governing party from embarrasment.

    Against this background the decision of the North Gauteng High Court is worrying indeed.

    The judgment (which seems well-reasoned to me) is also significant because it confirms that public power conferred in terms of the Constitution or the law has to be exercised lawfully, rationally and in a manner consistent with the Constitution. The principle of legality requires that an official to exercise public power in accordance with the provisions of the law and the Constitution. Where an official misconstrues his or her powers or fails to adhere to the requirements set by the law or the Constitution for the exercise of those powers, the officials actions will be unlawful, regardless of whether it constitutes administrative action or not.

    What is required is that the power had to be exercised in good faith and in a rational manner and thus should not  be arbitrary or manifest a “naked preferences” that serves no legitimate purpose. The court found that the Public Protector in this case acted irrationally because he failed to summons any person to give evidence; failed to obtain the relevant documents; failed to to contact any of the relevant role players to hear their version of events and stated that most of the facts in the Mail & Guardian stories were incorrect without ever having investigated this!

    The relevance of this judgment therefore extends beyond the present case as it confirms – contrary to what Justice Minister Jeff Radebe has alleged in the Sunday Times and again in The Thinker – that the decision by the NPA to drop charges against President Jacob Zuma can be reviewed and set aside if the head of the NPA misconstrued his powers, acted in bad faith or irrationally or failed to a adhere to the provisions of the Constitution.

    If the Head of the NPA had dropped the charges without having regard to the prosecution policy – which he is constitutionally bound to do – he would have acted contrary to the principle of legality and a court would then have to declare the dropping of charges unlawful.

    As the Acting Head of the NPA had failed to mention the prosecution policy when he gave reasons for his decision to drop the charges against Zuma, plagiarised a Hong Kong decision which was later overturned on appeal in justifying his decision and relied on as yet unpublished recordings that must have been illegally handed over and obtained by the legal team of President Zuma, it seems to me there is a very strong possibility that a court could find that the dropping of charges were unlawful.

    But that is perhaps a debate for another day and another court.

    Who will be our next Chief Justice?

    In the near future President Jacob Zuma will probably appoint Justice Sandile Ngcobo as our new Chief Justice. I have a high regard for Justice Ngcobo. Whether one agrees with him or not, his dissenting judgment in the Prince case (dealing with the religious freedom of a Rastafarian to use cannabis) is a work of great beauty.  And every time I read the Hoffmann judgment, in which Justice Ngcobo declared that it constituted unfair discrimination on the part of South African Airways to discriminate against Mr Hoffmann on the basis of his HIV status, I feel proud to be a South African. When I get to the following passage I inevitably get a lump in my throat:

    In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so when it occurs in the context of employment. It denies them the right to earn a living. For this reason, they enjoy special protection in our law.

    The appointment of Justice Ncobo will also come as a relief to those of us who think that Judge President John Hlophe is not fit to be on the bench – let alone to be appointed Chief Justice – because of his propensity to tell untruths, his numerous actions which appears ethically problematic and his undignified and un-judicial display of ambition.

    However, it seems sad and a little bit worrying that an equally worthy – and more senior – candidate, Deputy Chief Justice Dikgang Moseneke, will probably be overlooked because of a completely innocuous remark he made at his birthday party when he said: “I chose this job very carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates want; it is about what is good for our people”.

    In private discussions the conspiracy theorists sometimes also note that Moseneke – who was sent to Robben Island at the age of 16 – might lose out because he was Deputy President of the PAC and from Sotho origin, while Ngcobo’s home language is Zulu, but I can’t imagine that the non-racial ANC who vehemently opposes tribalism will take such things into consideration.

    For me the issue is one of principle, not of personalities. Given the fact that South Africa’s Constitution creates the position of Deputy Chief Justice, it seems appropriate to appoint the Deputy Chief Justice as Chief Justice when that position opens up because he or she would be the most senior judge and “next in line” so to speak. Establishing such a practice might also safeguard against the perception that the most pliant and trusted judge would be appointed to the top job by the President of the day and might help to prevent the overt politicisation of the judiciary.

    Although judges will not be swayed by such considerations, respect for the judiciary (and the Chief Justice) does not only depend on the actual ability and willingness of judges always to act without fear, favour or prejudice but also on the perception created in the minds of the public that they will do so. Where a practice is established to appoint not the most senior judge to the position of Chief Justice, ordinary citizens will wonder why the next in line was overlooked and why another candidate was chosen and might well think that naked politics played a role in such a decision. This will not instill and further entrench respect for our judiciary.

    In any case, the appointment of Justice Ngcobo will be good news for those  who champion the rights of accused persons. In the Zuma case justice Ngcobo displayed a very progressive view of criminal procedure rights – a view not shared by most judges or ordinary citizens in South Africa who seem – like me – to be a little less bleeding heart progressive on this issue than those who believe the criminal justice system should bend over backwards to safeguard the rights of accused persons (often wrongly called “criminals” by politicians) in order to secure their right to a fair trial.