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.
In an open and democratic society like South Africa with a free press and an engaged and active citizenry, a vibrant civil society, and political parties who hold regular internal elections, it is very difficult to cover up maladministration and corruption. There are almost always people who “know too much” and have the required conscience (or an axe to grind) who will be willing to spill the beans. In such a society — even one electorally dominated by one party — public opinion also matters greatly.
When a politician, an official or a businessman is caught up in a scandal, the most astute way for that person to deal with such a scandal is to try and influence public opinion to minimise the effects of the scandal or to turn it to his or her advantage. Lying about the scandal usually makes things worse — just ask Sicelo Shiceka or anyone involved in the Brett Kebble saga. If one is a low-level official one might try to ignore the whole thing with a “no comment” because members of our media usually have a very short attention span (and limited resources) and often do not follow up on allegations of bribery or corruption except in the most serious cases.
But this strategy usually does not work if one is a high profile individual like a Police Commissioner, a captain of industry or a prominent leader of a political party. In the long run the painful drip-drip of revelations about the scandal will damage the reputation of that person (and the political party he or she belongs to) and soon enough members of the public (also members of one’s own political party) will be keen to hold one accountable. And if one is lucky or very clever one can even use a scandal to get rid of political enemies — although this can backfire, as former President Thabo Mbeki may attest.
President Jacob Zuma – like Helen Zille – understand all of this. That, in my opinion, is why he appointed a commission of inquiry into the arms deal. It was announced yesterday that the commission will have wide-ranging powers, including the power to subpoena witnesses; to compel witnesses to answer questions; and the power of search and seizure. Non cooperation with the Commission will amount to a crime similar to contempt of court and will constitute an offence punishable by a fine or imprisonment for a period between 6 to 12 months.
The terms of reference of the commission as well as the powers given to it are indeed wide-ranging and if the presiding judges do their job properly, the commission might well once and for all lay the arms deal scandal (if not allegations of a possible cover up) to rest. Of course, the commission might well damage or destroy the reputations of several politicians, officials and arms traders (assuming that the latter has any reputation to start with), but given the terms of reference President Zuma is unlikely to be one of them.
The commission is empowered to investigate the rationale for the arms deal; whether the arms and equipment acquired in terms of it are under-utilised or not utilised at all; whether job opportunities anticipated to flow from the deal; whether off-sets anticipated to flow from the deal have materialised at all; and — most importantly — whether any person/s, within and/or outside the Government of South Africa, improperly influenced the award or conclusion of any of the contracts awarded and concluded in the procurement process and, if so whether legal proceedings should be instituted against such persons, and the nature of such legal proceedings. The commission may also investigate whether any contract concluded in terms of the deal is tainted by any fraud or corruption capable of proof, such as to justify its cancellation, and the ramifications of such cancellation.
President Jacob Zuma himself was embroiled in the arms deal scandal, but it is important to note that Schabir Shaik was not convicted for soliciting a bribe on behalf of President Zuma on the condition that Zuma would try and influence the awarding of arms contracts. He was convicted for soliciting bribe (for the relatively small sum of R500 000) for Zuma on the condition that Zuma would try and influence the investigation into corruption into the arms deal.
Zuma skilfully exploited his involvement in the scandal to turn himself into a victim and thus to gain public sympathy. He knew that public opinion (not the opinion of the chattering classes, but that of the ANC rank and file) would be pivotal for his survival as a politician and he thus exploited widespread unhappiness with then President Thabo Mbeki inside the ANC, without ever admitting to any wrongdoing.
Implicit to his argument in the run-up to Polokwane was that he was being singled out and made a scape goat to put a stop to his political ambitions. Because the public had mostly already concluded that there had indeed been widespread corruption in the arms deal and because no one else was ever pursued or prosecuted (except for Tony Yengeni who was, once again, convicted of the relatively minor crime) this strategy seemed to work and (at least the majority of delegates at Polokwane) forgave Zuma for any possible transgressions.
The terms of reference of the arms deal inquiry suggests that if President Zuma was indeed embroiled in the arms deal, his involvement was limited to the soliciting of a bribe on his behalf by Schabir Shaik with the understanding that he would try and prevent the arms deal investigation from uncovering corruption. That is why the terms of reference are wide-ranging but does not include any mention about the events which followed the conclusion of the arms deal. The Commission will not be empowered to investigate whether bribes were paid to some politicians to try and cover up the arms deal scandal after the fact, leaving Zuma relatively safe.
Many allegations about the arms deal have been made, some implicating politicians and some implicating the ruling party itself. At first blush, there might therefore appear to be a danger for President Zuma in appointing the commission as it might damage the ANC. But on reflection, President Zuma might perhaps be calculating that he could once again turn a scandal to his personal advantage and to the advantage of the ANC. If the Commission uncover corruption of members of the administration of former President Mbeki, Zuma can claim that he was the one who rid the ANC of the corruption and might be able to convince many voters that under his leadership the ANC is actually serious about rooting out corruption, thus gaining (instead of losing) support for the ANC.
I suspect that the appointment of this commission was a brilliant move on the part of President Zuma. It might well be that civil society pressure and pressure from ANC members played a role in the decision (as Steven Friedman cogently argued in Business Day) and that this demonstrates that the constitutional democracy works much better than some in the chattering classes think. But this does not mean that the appointment of the arms deal commission of inquiry, carefully steered away from investigating those aspects of the arms deal that might implicate the President, was not a good move.
Instead of ignoring public opinion and attacking the messenger by complaining about how the media was painting the ANC and its leaders as corrupt, the President acted like a good politician would have done in any well-functioning democracy by managing the effects of the scandal in order to influence public opinion to his advantage. It is not surprising that he did so carefully, seemingly to ensure that his own limited involvement in the scandal will not be probed.
Obviously this move will not be popular with former and/or present ANC leaders and arms dealers who run the risk of being exposed by the work of the commission. But if I was an ordinary ANC member I would be very happy and impressed by this move by our President.BACK TO TOP