Analysis: Legalism, a politician’s best friend

By Branko Brkic 8 March 2010

President Jacob Zuma’s approach to the question of whether he should declare his financial interests illustrates one of South Africa’s biggest ethical problems: legalism.

Legalism can mean many things. It means that you are absolutely innocent until every appeal to every court in the land has decided every aspect of your case. It means worming your way out of a situation if there is the tiniest legal doubt.

Legalism means never having to say not only that you are not sorry, but anything at all, because it’s “sub judice”. And whatever you did say does not necessarily reflect what you actually believe. Neither should it necessarily be taken as an indication of what you intend doing.

By now, dear reader, you probably get the point.

The way the issue of financial interests has unfolded is instructive on this topic. The Sunday Independent reported that not only had President Zuma not declared his financial interests, but that his office was taking the position that there was a “lack of clarity” on the issue.

The report says that Zuma’s spokesperson, Vincent Magwenya, said there was a “lack of clarity” over whether Zuma would have to declare his interests.

”There was a lack of clarity on whether he really needs to declare [his interests]. The lack of clarity was on the interpretation of the language in the Act,” said Magwenya.

“There was a feeling that no, he does not need to declare [them] and also, there was consideration of … precedents. The lack of clarity was partly [caused] by what people understood the practice to have been before,” he said. No only this, but Magwenya said that Zuma’s legal team was consulted for an opinion, but missed a 60-day deadline to return with a response.

Magwenya’s response suggests that there is something really complicated in the Executive Members’ Ethics Act [No. 82 of 1998] that is capable of creating a big legal headache because of the conflict between Justinian’s code and the legal writings of 17th century Dutch jurist Johannes Voet.

Actually, the legislation is as plain as a piece of paper. The legislation says: “The President must, after consultation with Parliament, by proclamation in the Gazette, publish a code of ethics prescribing standards and rules aimed at promoting open, democratic and accountable government and with which Cabinet members, Deputy Ministers and MECs must comply in performing their official responsibilities.”

This code must require: “Cabinet members and Deputy Ministers to disclose to an official in the office of the President designated for this purpose, and MECs to disclose to an official in the office of the Premier concerned designated for this purpose:

(i) all their financial interests when assuming office; and

(ii) any financial interests acquired after their assumption of office, including any gifts, sponsored foreign travel, pensions, hospitality and other benefits of a material nature received by them or by such persons having a family or other relationship with them as may be determined in the code of ethics; …”

This code of ethics has in fact been published, and in terms of the code, former president Thabo Mbeki did in fact publish his (not very consequential) financial interests. Zuma himself even signed it.

The Times subsequently got hold of constitutional expert Pierre de Vos, who confirmed: “There is no ambiguity in the Act. It clearly says that cabinet members and the president must declare. It even goes as far as stating that if the president does not declare, he can be reported to the Public Protector to investigate.”

However, De Vos continues to say there may be some ambiguity about which of Zuma’s wives need to declare too. “As the country knows, Zuma has three wives and 20 children and there are talks about him being engaged to someone else, so there may be lack of clarity on who he should declare from his personal life,” De Vos is quoted as saying.

The problem is that this is not the issue raised by Magwenya: for him the question was not about whom in Zuma’s family should declare, but Zuma himself. Even if the “ambiguity” concerns Zuma’s family, that should not prevent Zuma from himself declaring his interests, as the law requires.

The big question is this: how do you get from an absolutely obvious, clear, plain, vanilla piece of legislation to a situation where there is a “lack of clarity” on whether Zuma really needs to declare?

The answer is that you apply the laws of legalism: and the first law of legalism is that you don’t do anything, even if it’s as obvious as an elephant in a kitchen, unless you have at least consulted with your legal team first – and asked them if there isn’t any way the law can be twisted to wiggle out of this problem.

The problem of legalism is not confined to Zuma, but applies to many other parts of South African life as well. Take the other issue of the moment: Julius Malema’s business interests. The ANC, the ANC Youth League and the president himself claims Malema’s business interests are his own private affair.

That is very, how should we say, legalistic. The Youth League loves to flaunt its power over government, and claims that, for example, nationalisation will become the policy of the ANC. Yet it can’t have it both ways – although of course it does. If the Youth League is influential, as it claims, over public policy then the private interests of portfolio members are significant and of public interest. If the Youth League is not, then it should stop claiming it is.

It is no accident that legalism should be such an issue in contemporary South Africa, which wants to present itself as a fully integrated, fully compliant modern nation – but still wants to exercise the right to “tenderpreneurism”.

Legalism is a disease of the kleptocracy, just as self-righteousness is the disease of rich nations and moral superiority is the disease of communism. It is a function of our times.

By Tim Cohen

Read more: Executive Members’ Ethics Act [No. 82 of 1998], IOL

Photo: South Africa’s President Jacob Zuma attends a news conference at Wembley Stadium in London, March 4, 2010. REUTERS/ Eddie Keogh


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