An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Call me suspicious, but whenever any government spokesperson, government Minister, MEC or government official (be they from the ANC or the DA) ask that we should just trust them to deal appropriately with a controversial issue, I immediately conclude that they cannot be trusted under any circumstances whatsoever. “Just trust me” is the kind of thing a member of the mafia tells you while he is waiting for your cement boots to dry before putting a bullet in the back of your head and then dumping you into the river.
President Thabo Mbeki famously told religious leaders to trust him on Jackie Selebi, stating that he had no grounds to suspend Selebi on the basis of the information he had received about wrongdoing by Selebi. Of course, we now know that the information Mbeki had received about Selebi formed the basis of the later conviction of Selebi for fraud and corruption. Good thing, then, that some of us did not trust Mbeki when he gave these assurances about the crooked Selebi.
When government spokesperson, Jimmy Manyi, yesterday told journalists that nothing will be swept under the carpet regarding the Public Protector’s report (which fingered Police Commissioner Bheki Cele and the Minister of Public Works Gwen Mahlangu-Nkabinde for their unlawful and unconstitutional behaviour and for maladministration) the alarm-bells went off in my head. When I heard Manyi say that the justice minister Jeff Radebe and the secretary of cabinet will “interact” with the Public Protector over her report, the disquiet grew.
What on earth is there to “interact” about – surely the Cabinet is not hoping to pull an arms deal trick on us by putting pressure on the Public Protector to change or retract her report? The Public Protector has found that a Cabinet Minister had acted in flagrant breach of the law. One would have expected the Cabinet to censure that Cabinet Minister and for the Cabinet Minister to be suspended or fired by the President. Instead, we are asked to trust the Cabinet who will now “interact” with the Public Protector on these findings. Why this reluctance to act? Is it because powerful politicians might be involved in this scandal or perhaps because the ANC had hoped to benefit from the police property deal?
Worse, when questioned about this lack of action by the Cabinet, Manyi then told journalists: “Trust me on this one”. When a government spokesperson asks us to trust the government to deal with a report which have implicated members of that very government and at the very least have called into question the judgment of their boss – President Jacob Zuma – who happened to have appointed the Commissioner and the Minister, it is like asking a chicken to trust the fox guarding the hen house.
I do not trust Cele. I do not trust Manyi. I do not trust Mahlangu-Nkabinde. And, given his rather colourful history with corrupt friends and his questionable dealings with the intelligence services – what with him having taken money from a crook, then doing favours for that crook and then getting off the hook with the help of the intelligence services – I definitely do not trust President Zuma. Neither should any reasonable South African trust any public official or political office bearer.
Where a government demands blind trust from its citizens and citizens are stupid enough to bestow that blind trust on their leaders, democracy falters and ultimately perishes. Calls for citizens or journalists to have blind trust in the government are not compatible with open and democratic government. Democracy requires citizens and journalists to be ever vigilant and sceptical of their public representatives (like President Jacob Zuma) and of public servants (like Bheki Cele).
If we are not, chances are that the powerful will abuse their power, will act corruptly and will undermine the Constitution. There is an ever present danger in every democracy that politicians will stop being accountable to the voters whom they are supposed to serve and will become accountable to others instead: to their rich friends and benefactors; to members of the intelligence services; to the police and the military or to the local or foreign donors who give large amounts of money to the political party they belong to.
Americans discovered this hard truth when Richard Nixon was the President of the United States. Nixon eventually had to step down after it transpired that he was a liar and a crook. But Nixon was only exposed because journalists and citizens were not placated by assurances by Nixon and his minions that he could be trusted merely because he happened to be the President of the United States of America. This attitude of scepticism was exemplified by the late gonzo journalist Hunter S Thompson, who dedicated his book The Great Shark Hunt to Nixon in the following terms: “To Richard Milhouse Nixon, who never let me down.” Thompson always expected the worst from Nixon and was handsomely rewarded.
One of the basic assumptions underlying any successful constitutional democracy is that it can never be assumed that people in power can be trusted. No matter whether we support them politically or not, we fail in our task as citizens if we give our public representatives a free pass and if we assume that they can do no wrong (as so many fanatical ANC and DA supporters seem to do). Checks and balances must therefore always be written into the Constitution to prevent one branch of government from acting with impunity and to prevent one individual from concentrating too much unchecked power in his or her office. In this way the various branches of government are held accountable by each other, by the free media, by citizens and by independent bodies like courts and – in South Africa – by chapter 9 institutions.
In our democracy the office of the Public Protector – set up in terms of section 181 and 182 of the Constitution – acts as one such a check on the exercise of power by government officials and politicians. The Public Protector can only fulfil this role if it remains independent and if it is respected and protected by other organs of state. The President – as the head of state – has a special duty to protect the office of the Public Protector. That is why section 181(3) states that:
Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
The Public Protector Act 23 of 1994 expands on these duties. Section 7 (2) of the Act states that it is a criminal offence for any person to disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector – unless the Public Protector determines otherwise.
Section 9 (b) states that it is a criminal offence for any person to do anything “in connection with an investigation… which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court”. The Act also stipulates that it is a criminal offense for any person or organ of state to interfere with the functioning of the Public Protector.
This means that the raid by a captain and a colonel of the Crime Intelligence Unit of the South African Police Services on the offices of the Public Protector in search of documents relied upon by the Public Protector in her damning report on the Police Commissioner, was almost certainly illegal and unconstitutional and that those who ordered and executed it had almost certianly committed a criminal offence. It was clearly a scandalous interference with the office of an independent constitutional body. Recalling the Nixon Watergate scandal, I would ask: what did Commissioner Cele and President Zuma know about this unlawful raid and when did they know it.
The claim that Commissioner Cele had not known about this raid and that the Police would investigate this matter, is not particularly convincing. Either Commissioner Cele is not in control of his own Police force, or he is not being entirely truthful on this matter. And why should we trust the Police to investigate themselves? What if the Crime Intelligence Unit members had been made to understand that their actions were sanctioned by powerful people (people like Cele or President Zuma, perhaps)? Will anyone in the Police really be brave or stupid enough to investigate such claims? Of course not.
Ordinarily the Police should account to Parliament. The Parliament should also act as a protector of the Public Protector. But given the fact that a criminal offence was almost certainly committed and that the Police Commissioner and members of the Executive are involved in this scandal, I am not sure such involvement will be of much assistance. This would require the National Assembly members potentially to sit in judgment of senior leaders in their party – something no sane junior politician is going to do. Moreover, the National Assembly does not have the capacity to investiagte the matter properly even if it did have the political will to do so.
But who protects the Public Protector if the Police and the political branches of government cannot do so? If the President wishes to regain some credibility on this matter and if he wishes to protect the Public Protector as he is constitutionally required to do, he only has one viable option. He needs to appoint an independent Commission of Inquiry – preferably chaired by a senior retired judge – to investigate this scandal.
In the mean time he needs to suspend General Cele and the head of Crime Intelligence and ask his Minister of Public Works to step aside. If he fails to take any such steps in the near future and if he fails to act, it would be reasonable to wonder whether he is in control of his government. Some might even begin to wonder whether the President himself is involved in this scandal and whether President Zuma will turn out to be South Africa’s own Richard Nixon.BACK TO TOP