As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The conventional wisdom among much of the commentariat in South Africa (myself included) is that corruption is one of the most pressing issues facing the country. The only way to clean out the stable is to fire tainted ministers and other public representatives and to ensure that those guilty of corruption are properly investigated and fearlessly prosecuted. Only then will a stable and functioning government be able to do something effective about the unconscionable inequality and poverty in our society. But what if this is not possible; what if the choices you are forced to make in government are far more complicated?
Earlier this week (with increasing consternation) I read a fascinating article by Perry Anderson about “Bolsonaro’s Brazil”, published in the London Review of Books (unfortunately the article is hidden behind a paywall). The article raises intriguing questions about whether it is always wise for a relatively honest President with more or less honourable intensions whose grip on his party or on state power depends on clientelism and/or corruption, to take too firm a stance against corruption and clientelism. In the South African context Premiers and mayors may face similar dilemma’s.
In South Africa, at national level, clientelism happens within political parties (but especially within the governing party), where party insiders act in favour of a powerful interest or in support of an individual (say DD Mabuza supporting the election of Cyril Ramaphosa as President of the ANC) and then expect to be rewarded afterwards (in the case of Mr Mabuza the expectation was surely to be appointed as Deputy President and to have some of his supporters appointed into ministerial positions).
Or it happens at local government level with coalition governments where smaller parties “sell” their support for the mayor and his or her party (or for some of his or her programmes) in exchange for positions in the municipal government, or in exchange for money or access to benefits flowing from corrupt tenders.
(It has been alleged that the EFF is supporting the DA in Tshwane and Johannesburg in exchange for exactly such access to the benefits of corrupt tenders. If this is true, it might be surmised that Athol Trollip’s DA-led government in Nelson Mandela Bay fell apart because Trollip was too rigid and failed to manage clientelist relationships properly as he did not offer good enough benefits – in the form of positions or by turning a blind eye to corruption – to the smaller parties and their leaders who initially supported his coalition.)
From these examples it must be clear that the boundary between prosecutable corruption and non-prosecutable clientelism is a porous one. It is not always easy to distinguish between these two situations; between what is legal and what constitutes a criminal offence. Once you go down that route, the chances are that you are going to find yourself on the wrong side of the law. Which brings me back to what happened in Brazil and to the question whether Brazil has any lessons for South Africa.
In Brazil, the President is elected directly by voters, but requires the support of a majority of members of Parliament to pass his or her government’s legislation. For many years now, no political party has enjoyed a parliamentary majority in Brazil, which means that a President can only govern the country if he or she can “persuade” a majority of MPs to support his or her legislative agenda.
Before the election of left-wing President Luiz Inácio Lula da Silva (universally known as Lula) past President’s found allies among traditional oligarchs and the centre right party, which Perry Anderson describes in his London Review of Books article as “home of big business and the middle class… a sprawling network of clientelism in rural and small-town settings, feathering local nests with federal or provincial largess”.
When Lula came to power, he did not want to depend on them. Instead, as Anderson explains, Lula’s party set out to build a majority in Parliament “from the morass of smaller parties, each more venal than the next. To avoid giving them too many ministries, the customary financial reward for support, [Lula’s party] doled out monthly cash payments under the counter”.
Despite the inevitable scandal that ensued, Lula survived and was re-elected as President because of his personal popularity, bolstered by a drastic increase in the living standard of especially working-class Brazilians. As Anderson tells it, his hand-picked successor, Dilma Rousseff, had more scruples and less luck than Lula, which led to her political demise. In 2016, after being elected as President for a second terms, Rousseff was impeached and removed from office, ostensibly because of her alleged involvement in corruption. Many deputies voted for her removal at least in part to protect themselves against corruption prosecutions. (Politicians of ministerial rank, as well as members of Congress, enjoy immunity from prosecution unless authorised by the Supreme Court.)
Late last year, Jiar Bolsonaro, (widely considered to be a nationalist and populist, advocating far-right policies), was elected as Brazilian President. Bolsonaro has praised the military dictatorship and has made shockingly homophobic statements, telling Playboy in 2011: “I would be incapable of loving a gay son,” and adding that he would prefer any gay son of his “to die in an accident”. In the same interview, Bolsonaro also stated (somewhat counter-intuitively) that if a gay couple moved in next door to him, it would lower the market value of his house.
While it is unclear yet what damage Bolsonaro will inflict on especially the working-class and the poor of Brazil, the horse has already bolted as many of the social welfare reforms instituted by Lula and Dilma were reversed by the caretaker President after Dilma’s impeachment.
As Anderson points out, some commentators believe that Dilma could have avoided impeachment if she had been less honest and less rigid. As large demonstrations clamoured for her removal, Speaker Eduardo Cunha, still formally part of the ruling coalition, edged towards clearing the docket for Dilma’s impeachment in Parliament. Lula was called in to try to save the situation. Anderson explains what happened next:
[Lula] swiftly set about mending fences…. As he did so, it suddenly and spectacularly came out that Cunha had millions of dollars in secret bank accounts in Switzerland. Whereupon he [Cunha] offered a pact of mutual protection: he would block [impeachment] proceedings against Dilma if the government blocked proceedings against him. Lula urged acceptance of the deal, and at summit level in Brasília an understanding was reached. But Dilma refused, and the national leadership of [her party]…, fearing that news of the arrangement could only confirm public perceptions of the party as utterly corrupt, instructed its deputies to vote for action against Cunha. In retaliation, he immediately cleared the charges against Dilma for deliberation in Congress.
Of course, South Africa is not Brazil. The two legal systems differ markedly, and there are also significant differences in the manner in which Presidents are elected. Unlike in Brazil, the likelihood that large numbers of MPs, other party officials, and corrupt businesspeople bribing politicians will be prosecuted for corruption remains slim in South Africa so there may be less of a possibility for a revolt against Cyril Ramaphosa or against other national, provincial or local leaders for not turning a blind eye to corruption. (Although Athol Trollip may disagree with this.)
But the impeachment of Dilma Rousseff does raise uncomfortable questions in the South African context. As Anderson points out, Dilma’s intentions were “more than honourable”. She wanted to “advance, not just preserve”, the social and economic gains on behalf of working class Brazilians which were achieved under Lula. She also wanted to free her party “from the connivances” with which these achievements had been bought under Lula.
Last year left wing economist, André Singer, published a book entitled O lulismo em crise: Um quebra-cabeça do período Dilma, 2011-16 (“Lulism in Crisis: A Puzzle of the Dilma Period”) in which he suggested that Dilma may have been wrong to reject any deal with Cunha to save herself from impeachment. For Singer, there lies the critical difference of character between Lula and Dilma. Politically, he remarks, Lula would bend, but not break; Dilma would break rather than bend. Blackmailers are never satisfied, she said: yield, and they will always come back for more.
Without putting it in so many words, Singer sides with Lula. If Dilma only had been less principled and more pragmatic, she might have survived impeachment and might have saved Brazil from the Presidency of the right-wing populist Bolsonaro.
I am not sure where I stand. Is it better for a President to choose pragmatism in pursuit of a worthy goal (for example, the goal of reducing poverty) despite the fact that one becomes tainted by such pragmatic choices, or should a President (or a premier or mayor for that matter) rather stick rigidly to principle, to ensure that your corrupt allies are removed from office and where appropriate prosecuted for corruption? Put differently, is it better to choose to pursue social justice, or should one pursue respect for the Rule of Law at any cost?
The problem with the first option, is that it can easily become self-serving. You may break some of the rules by turning a blind eye to corruption committed by your allies and by retaining them in your cabinet, not so much to advance a laudable goal of eradicating poverty and creating a better life for the more vulnerable members of society, but rather in order to cling to power for its own sake. You may also cling to power wanting to do good, but without actually doing anything meaningful because you are too paralysed by lethargy or by all the compromises you have been forced to make.
The problem with the second option is that you may sacrifice the well-being of millions of vulnerable people by handing over the government to right-wing reactionaries or to pretend-radical rent-seekers, in order to be able to feel good about your own moral choices; in pursuit of a good night’s rest, so to speak. Or you may be placed before an impossible choice: advance and respect the Rule of Law (which is a prerequisite for the long-term flourishing of a stable democracy) by ensuring the prosecution of friends and foe alike but then sabotage the long-term prosperity of the nation by allowing the keys of government to be wrested from you by corrupt and self-serving thieves.BACK TO TOP