Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
9 October 2010

About glue and superglue

Only the most partisan and jaded among us who read through the documents on organisational renewal prepared for the ANC National General Council (NGC) would not be impressed by the honesty of the document and by the harsh but accurate assessment of the state of the organisation contained in it.

(Helen Zille could learn a thing or two from the ANC about admitting to the difficult problems faced by her party and the shortcomings of many party members and leaders. But – like Margaret Thatcher – that lady is not for turning and not for admitting a mistake, no matter how damaging and obvious the mistake might have been.)

As the ANC document points out, leadership in the ANC is seen as steppingstone to positions of power and material reward in government and business. There are disturbing trends of “careerism, corruption and opportunism,” taking root in the party at various levels, “eating at our soul and with potential to denude our society of an agent of real change”. The document also recognizes the challenges and sins of incumbency (patronage, bureaucratic indifference, arrogance of power, corruption) and suggests approaches to the management of relations within the organisation.

The ANC – and, ironically, even its leader President Jacob Zuma – often talks about the need to deal with corruption and nepotism and Cosatu last week announced (yet another) initiative to deal with these problems in the party. Why then does the ANC seem incapable of dealing with problems of corruption and nepotism – despite many party leaders freely admitting to the problem and clearly being worried about the consequences of the corruption eating away at the moral fabric of the ANC?

An excellent article in this weeks Mail & Guardian about Kennedy Road and the academic article by Prof Sujit Choudhry (highlighted in the “updates” section of this Blog) on the pathologies of one party dominant democracies, go a long way to explain why the ANC will not be able to deal decisively with corruption. At its most basic level, the ANC will not be able to deal with corruption and nepotism in its midst because it needs corruption and nepotism to remain the dominant party in South Africa.

The better instincts of many ANC leaders therefore come in direct conflict with the more urgent instincts of staying in power to advance the “National Democratic Revolution” (and to hold on to the the perks and benefits of office – the cars, the blue lights, the body guards, the money, the ego-trips).

The end result is that the ANC will continue talking about corruption and the need to address it, while it will continue to turn a blind eye to it (perhaps occasionally making an example of a Tony Yengeni or a Jackie Selebi to demonstrate how serious it is about dealing with the problem). If it actually rooted out corruption, it will not be able to distribute benefits and opportunities to a wide array of people and will not be able to retain the loyalty of important but disparate groups who are currently loyal to the ANC. Corruption and nepotism is the glue that holds the ANC together.

It is true that this glue is turned into superglue by the other factors (the continued racism of large sections of the economically powerful minority; the emotional identification that many feel with the ANC because it is the party of liberation; the splintered nature of the Parliamentary opposition and the strategically shortsightedness of opposition parties which limits their chances for growth), but the fact is that the ANC is managing to dominate the political landscape in South Africa because it controls the state and its resources and can dispense benefits and opportunities to those who might otherwise have challenged the authority and power of the party.

It is essential for the ANC to be able to continue to dish out patronage to a wide array of people and to be seen to be able to do so. This they can only do if they turn a blind eye to tender fraud, corruption and nepotistic appointments and if it continues to insist on the continuation of cadre deployment. The ANC must be seen to be the only vehicle through which people can gain access to state resources and must thus be seen as the only party who can improve the lives of most voters. (That is also why the draft Bill that would prevent party leaders from holding local government jobs is meeting such stiff resistance from within the ANC.)

The brilliant article by Niren Tolsi in Friday’s Mail & Guardian (not yet available on the internet) is instructive in this regard. Writing about the aftermath of the criminal attacks on leaders of Abahlali baseMojondolo in Kennedy Road in September 2009, he notes that at the time of the attacks, Bhekisisa Stalin Mncube, spokesperson for the provincial minister for safety and security Willies Mchunu, sent out a press release on behalf of Mchunu and the provincial police commissioner Hamilton Ngidi saying that “the provincial government has moved swiftly to liberate a Durban community (Kennedy Road)”.

He shows that this “liberation” was nothing else than a move to re-establish the authority of the ANC in the area to ensure that residents would understand that it would only be through ANC structures that they would be able to access services or benefits. Abahlali baseMjondolo was a threat to the ANC because it established alternative structures in the area and provided services to the community and helped each other and this sent a signal that one need not be an ANC member or close to the ANC to benefit and to improve one’s life.

This meant residents did not have to go via ward committees and other ANC controlled structures if they wanted to get things done. But the ANC in the area could not tolerate this challenge to its authority because if enough people started believing that membership of the ANC (or at least not active opposition to the ANC) was not essential for any advancement, then the power of the ANC in the area might have been broken and people might have begun to explore other political options.

Conservative political scientists like Herman Giliomee often argue that South Africa is not a fully functioning democracy because our regular elections are no more than a racial census in which people vote either for the ANC (if they are black) or the DA (if they are white). This analysis is far too simplistic. People vote for the ANC and join the ANC for many reasons, including suspicion of the (white dominated) DA and an emotional identification with the ANC as a party of liberation.

But the dominance of the ANC – despite its dismal failure at local government level – cannot be explained purely in such terms. My view (not shared by all) is that most voters are not that stupid and usually vote for the party they perceive as the party best capable of addressing their needs and concerns. Many voters thus continue voting for the ANC exactly BECAUSE of the ANC’s dominance and its control of the levers of state power.

It is not because the ANC is delivering brilliant services at local government level, but because the ANC has convinced most voters that it is the only party that can make any real difference to their lives – often by bending the rules, by dishing out tenders fraudulently, and by employing unqualified people in government merely because they are close to the ANC. If the ANC controls public resources, it makes sense to vote for or even join the ANC in order to better one’s chances of improving one’s life.

A completely neutral state machinery as required by our Constitution (in which a sharp distinction is drawn between the governing party and the state and in which one’s political affiliations makes absolutely no difference to one’s chances of getting a tender or a job and very little difference to whether the state builds a school in your community or tar the road to your house) would be disastrous for the ANC. If people did not think that the ANC and the state was basically one and the same thing, they would consider voting for another party or – even worse for the ANC – they would consider forming another party to challenge the ANC’s dominance. For most poor people to do so at present would be rather stupid or even suicidal.

But to ensure that the ANC is associated very closely with the state, the rules according to which tenders are issued, jobs are provided and services delivered must be corrupted to ensure that only ANC aligned individuals are seen to benefit (or at least are seen to benefit more than those who are not ANC members, have not voted for the ANC or actively oppose the ANC). No wonder COPE is not coping: having lost the power of incumbency it has very little to offer ordinary voters.

That is why the ANC leaders at Luthuli House have insisted on appointing Premiers and even mayors, why it is investigating changes to the provincial government system to limit the chances of provinces (like the Western Cape) attaining too much power and hence too much access to state resources, and why it cannot afford to deal decisively with corruption at national, provincial and especially local government level.

As Choudhry points out, this does not make South Africa unique at all: India, Mexico, Japan and many other countries in which one party dominant democracies enabled governing parties to retain power for many years all suffered from the pathologies of one party dominance highlighted above.

It does mean that unless the economy collapses and deprives the ANC government of sufficient resources to dispense (as happened in Zimbabwe, enabling the emergence of the MDC),  or unless alternative centres of power emerge in municipalities and provinces to challenge the hegemony of the ANC, corruption and nepotism will not be addressed in the medium term. This is not because the ANC leadership is inherently corrupt or that it is morally depraved, but because it has no other choice but to turn a blind eye to corruption and nepotism if it wants to remain the dominant party.

In this, big business and the ANC are in cahoots. During the apartheid era in which the National Party dominated the (whites only) electoral landscape, big business got into bed with the Nats because the Nats had access to resources, could dish out tenders and business, and could ensure an environment in which astute and unscrupulous businessmen and women could become rich. Now that the ANC is firmly entrenched as the dominant party in South Africa, big business has found a new bed partner.

Absa is of course the perfect example of this trend. It used to be the bank of the apartheid government and the supporters of apartheid and it seamlessly turned itself into the bank of the ANC government and of the new elite. When big business bleats about corruption and nepotism, I take this with a pinch of salt. They are not against corruption and nepotism: they are just against the wrong people getting corrupted and then reaping the benefits form corruption.

What is to be done? Corruption commissions will not do the trick. It seems to me that resistance from below (as opposed to complaining by elites like myself) is our best bet.

Here the Constitutional Court can play an important role: by vigorously enforcing the Rule of Law, by making decisions that opens up or keeps open democratic space for contestation, by acknowledging that it has been called upon to interpret and enforce the Constitution in a one party dominant democracy and that this should be taken into account when it makes decisions about the nature of democracy, about the powers of the various spheres of government, and about the abuses of power by the executive that inevitably result from one party dominance, it can help to empower communities who want to take on corruption and nepotism.

In this regard, it will be interesting to see how the Constitutional Court deals with the case challenging the appointment of Menzi Simelane as National Director of Public Prosecutions. If it is asked to consider this matter and if it declines to invalidate the decision of the President on the grounds that the President should have a wide discretion to deploy incompetent and ethically challenged cadres into constitutional positions, we will know the court is not up to the task of helping to safeguard our democracy. What will the Court do? Only time will tell.

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