TRAINSPOTTER: The End of Law, The End of Democracy
- Richard Poplak
- South Africa
- 20 Sep 2017 11:55 (South Africa)
President Jacob Zuma, hounded by 783 corruption charges and saved by the immunity conferred on him by his office, will do anything to stay out of jail. South Africa’s fate depends on how this existential nightmare is resolved. This country is always five minutes to midnight. Another minute is about to tick by. RICHARD POPLAK watches the clock.
“An alcoholic,” the late comic Robin Williams once remarked, “is someone who can violate his standards faster than he can lower them.”
The same maxim obviously applies to politicians. South Africa, never exactly a paragon of good governance, did have its moment: whatever one says about the Mandela presidency, the man had a rock-solid set of values. The process since then has steadily risen towards Peak Theft, which is another way of saying that Jacob Zuma’s presidency has been an act of lowering standards just after they’ve been violated.
It is, however, significantly important to remember just how good the first seven years of his tenure were to the country’s manifold and disparate elites: the bankers, the hedgies, the lawyers, the retail barons, the politicians, the hangers-on, the security hacks, the tenderpreneurs, the whiskey-drinking nobodies who disappear just before the bill is delivered. The scant economic gains accrued entirely to them, hence their committed silence in the face of the president’s obvious shortcomings. That silence ended abruptly when the first finance minister was fired, back in December 2015.
They’ve been jabbering like fools ever since.
Meanwhile, the actual population saw all of democracy’s early progress first arrested, and then erased: modernity was distributed widely, but not evenly. Throw in the religious establishment’s omertà, which tracked with the ANC’s omertà, and which was enforced by the labour movement, the commies, and the “independent” regulatory bodies that were supposed to keep everyone in check. There were, of course, exceptions – the public protector (not the current one), elements of the press, artists, civil society institutions, the opposition parties’ lawyers. But the vacuum of silence basically ensured that Zuma’s ANC was able to win the Nkandla-flecked 2014 general elections, shedding voters and earning no mandate, but nonetheless coming away with a majority in the National Assembly that was good enough to save him in the latest no confidence vote.
What I’m trying to say is that Zuma paid almost everyone off, and it bought him enough runway to launch his lumbering, overloaded heist plane into the cool night air. The question we’re now collectively asking is: can we bring him back, and some of our shit back with him?
Many, many lives depend on a favourable answer.
The end of apartheid was supposed to mean that, for the first time in South Africa’s modern history, the rule of law would be applied to everyone, equally. As we lurched towards enshrining that notion in the Constitution, the country suffered paroxysms of violence – a civil war in everything but name – that resulted in a vast and irreconcilable social cleaving. As in most of the developing nations that emerged after 1990, the cops solidified their role as protectors of the elite, and immediately became funnels for petty corruption, enablers of grand corruption or, in some cases, just straight-up gangsters. The wealthy locked and loaded with a militarised private security sector, now the largest employer in the developing world. And the less wealthy were left to their own devices, pitted against a force that not only bore the stench of the previous regime, but was also an agent in setting up and maintaining the new apartheid – a system based on vast, brutal, social and economic inequity.
Johnny Steinberg, in his Thin Blue: The Unwritten Rules of Policing South Africa, puts it this way:
The most important precondition for policing in a democratic society is the consent of the general population to be policed. A people that is policed is one that lives in a condition of civil peace. Collectively, it understands that conflicts do arise, but it regards those as temporary ruptures, not as threats to the underlying order. It accepts [...] that a state agency must exist to deal with these breaches of the peace. A precondition of democratic policing is that there is a demand for it among the general population.
In other words, democratic policing is less about authority from above, and rather more about consent from below.
In South Africa, there was no consent.
And when this sorry fact is combined with an almost four-century-old culture of government or state-perpetuated corruption, we find ourselves trapped in a pincer of lawlessness. What results is a puddle of human goo too incoherent to be dubbed a country.
Not all of this was by design, but some of it was. After all, there have been many intentional and accidental roads to perdition. But it’s important to understand the end of the rule of law as a group project, one in which most of us played an important role.
To start with, let’s take, almost at random, the disbanding of the Directorate of Special Operations, or Scorpions. Always a little too independent for the government’s liking, the outfit was officially nuked by 252 (mostly ANC) MPs in 2008, signalling the end of any functional organised crime/corruption-fighting entity. The Scorpions’ replacement, the Directorate for Priority Crime Investigation, or Hawks, was appended to the aforementioned police, and has resulted in one pathetic joke after another, the least hilarious being the termination of the probe into the multibillion-rand arms deal that serves as democratic South Africa’s original sin. The Constitutional Court eventually deemed this whole clown show “constitutionally invalid”, but that didn’t matter, because it took a noose off Zuma’s neck, and allowed him to prosecute his palace coup unfettered.
Because of the immense power held by the executive, a constitutional architecture devised with saintly Mandela in mind, the Zuma presidency slithered effortlessly into a new war against the rule of law. The National Prosecuting Authority, designed to shunt cases from the cops into the courts, was only as good as cops were at handing it cases, which were only as meaningful as the National Director of Public Prosecutions was at prosecuting them.
Indeed, the position of NDPP was destined to splat against the wall of political infighting. The last meaningful casualty was Vusi Pikoli, who was suspended by President Thabo Mbeki for instigating criminal charges against former police commissioner Jackie Selebi (a Mbeki BFF), and then fired by President Kgalema Motlanthe for instigating the same against Jacob Zuma. This was like being hit by a car driven by a first driver, being reversed over by a second, while a navigator screams for blood from the passenger seat – the Pikoli controversy required the ministrations not of one, but of three successive ANC-deployed state presidents. (How Motlanthe has managed to pull off his wise-old-man status, having done nothing more than criticise the ANC for the past 12 months, is one of South Africa’s minor abiding mysteries.)
“The first value in life is victory, the second is revenge,” noted the celebrated economist Joseph Schumpeter. Revenge being the only economics the ANC is adept at practising.
The cops and the Hawks and the NPA are only three strands of the filigree that weaves the social contract between this government and its people. The judiciary has been lauded as the last uncaptured arm of the state, one that continues to hold the executive and legislative bodies accountable for their myriad screw-ups. But the courts don’t work for everybody – once you’re in the system, you’ve departed any coherent version of the space/time continuum. Good lawyers cost better money. And while the rich don’t always walk, the poor almost never do.
By way of another near-random example, let’s briefly examine Zuma’s most recent visit to the Supreme Court of Appeals. Last week, the court took only a few hours to force the NPA and Zuma to junk their attempt at seeking leave to appeal a High Court judgment that found the 2009 decision to drop many hundreds of Zuma corruption charges as “irrational”. It was embarrassing for Zuma and his lawyers, but they’re paid to be beyond embarrassment. The initial case, perhaps the second most famous in democratic South African history (we’ll get to the first in just a moment), set the tone for what was to come: captured former acting prosecutions head Mokotedi Mpshe dropped the charges against Zuma in April 2009 because of evidence contained in the so-called “spy tapes”, which supposedly revealed a conspiracy between former Scorpions head Leonard McCarthy (another Mbeki BFF) and the first NDPP, Bulelani Ngcuka, to undermine Zuma in favour of the incumbent at the looming 2007 ANC electoral conference in Polokwane.
All of this may be incredibly boring, to say nothing of a massive waste of time and resources. But because Zuma has lawyers on inexhaustible tap, he can afford to bore the shit out of everyone, and have the irrationally dismissed charges kicked down the line to the current director of prosecutions, the epically invisible Shaun Abrahams, who obviously doesn’t have the plums to act as his own man in any regard, and certainly not in this one.
The judiciary remains independent, but it is also where time goes to die, and it is nothing close to enough to maintain a democracy.
And so we’ve suffered a series of smash and grabs, some small, some big, and some existentially catastrophic. And the behaviour is contagious. Over the past several weeks, we have proven that corporate hacks long ago learned that this is an environment in which cravenness is rewarded with impunity. The behaviour of multinational auditing giant KPMG in particular is so disgusting that it literally nullifies this version of capitalism: if the independent regulators – companies that are designed to profit enormously from keeping the process fair – are themselves scumbag cheats, then what the fuck is the point in pretending any more?
And KPMG were just bottoms in a huge corporate orgy that has lasted since time immemorial. Leaving aside our own inordinately blessed monopolies or near monopolies, we know that multinationals including SAP, Liebherr, McKinsey, Net 1, Bell Pottinger, and I’ve forgotten how many banks came to the South Africa in order to lube up and join the fun. Wiping Bell Pottinger off the face of the Earth has made the joint a marginally better place, but it’s hardly enough.
This is what happens in a place where the law means nothing.
As I’ve mentioned, it’s a situation that cannot be blamed entirely on Jacob Zuma, although he does function as the perfect clinical symptom of a much larger global malaise: the wholesale destruction of the democratic experiment in the service of unfettered rent-seeking. A series of mistakes and wilful elisions, of happy accidents and hyper-focused skullduggery, that lead us to a blast point: the confrontation of a crisis that every constitutional democracy must eventually face. What does the Constitution mean? How strong are the institutions that uphold it? Who does it protect, and from what, and whom? Whose values does it enshrine? In the face of committed and unrelenting assaults from the executive, how easy is it to destroy?
Sadly, these inquiries are not undertaken in a staid academic environment, but on the battlefield, buried in jargon, slathered in sloganeering, given cover by increasingly normalised political violence. With all of this in mind, the question that obsesses the South African political commentariat – who will win this December’s ANC Electoral Conference? – is utterly meaningless.
This is because Zuma will do anything to stay out of jail, and the next several months are key to his ensuring that he does so. His faction must win the electoral conference (should it happen), and the ANC must win the 2019 national elections (should it happen), or his enemies will reopen the charges against him – charges that will stick, no question. A crooked president’s term comes to an end, and with it his immunity. To survive, he must either change or destroy the rules. It’s an old, time-tested story, and in this case, the Constitution will be the main casualty. Even the smartest people in this country appear to underestimate the danger: Zuma has no choice but to lay waste to everything.
His one-time supporters, once so lavish with their silence and their tacit support? Score. Cyril Ramaphosa and Zweli Mkhize literally don’t know what’s coming for them. For Zuma, there’s nothing they’ve done that will ever make them square. As for the rest of the SaveSA former stalwart silliness, indifference is the reward for speaking out too late. Zuma is the apex predator, with nothing to threaten his dominance except for the fact that his food source may end up eating itself.
The fuse on the cartoon bomb has been lit, and we’re waiting for the hilariously devastating explosion. What. Will. Jacob. Zuma. Do?
The entire South African democratic project, all 24 crazy-ass years of it, comes down to this. We could game-theory an outcome, but that’s just useless at this point. This newspaper posited the idea of a massively capitalised amnesty offer, and that is still very much a possible scenario. But if that doesn’t happen, and if no other expedient deal is struck, the sad truth is that no one will win the ANC electoral conference, if the conference goes ahead at all. Until a solution is found, the governing class of this country are locked in a war from which no combatant will emerge a clear winner.
This is a rut from which few countries emerge.
And yet, there are options. The most obvious is demanding from politicians and policy-makers an answer to the Zuma question – what happens to this dude, and what are we willing to sacrifice to have him go quietly?
The second is less an option than an imperative: we need to go after the likes of KPMG and Bell Pottinger, and bury them – not just because they’re complicit in Zuma’s state capture project, but because they’re shitty institutions that do shitty work and they deserve to die. If enough corporate heads roll, government will be forced to take notice of the pressure. No longer can hacks like Jimmy Manyi lie about the distinction between private (AKA white) and government (AKA black) corruption. Peas in a pod.
Fuck em all.
The third, and least obvious, solution is to listen to the ghosts.
Last weekend, ANC presidential hopeful Zweli Mkhize was forced to explain his role in the Fezeka Kuzwayo/Zuma rape trial. Accusations have emerged in journalist Redi Thlabi’s new book, Khwezi, that Mkhize tried to manipulate Zuma’s accuser into dropping the charges against the soon-to-be-president. Mkhize’s press release made for long and depressing reading, thick as it was with gruesome detail regarding the life of a young woman who had been sucked into a political maelstrom far too big for any one person to comprehend. Mkhize is considered one of the good guys (in the Noah sense of there being no real good guys), but there he was, insisting that he hadn’t tried to shush Kuzwayo, and that it was all just a complicated misunderstanding.
Thlabi’s book is the grenade thrown on top of the cartoon bomb, an exorcism that implicates an entire country. It is thick with the evil of those days, depicting as it does the circus that surrounded the 2005 rape trial, an event presided over by sangomas and hooligans, lawyers and political aspirants. It was so revolting that its stain cannot be erased, and it will haunt this place to the end, like so many of the events that have happened over the course of our history. Standards are violated before they are lowered; the bad guys never seem to do any time.
At some point, that’s a cycle that needs to be broken. The consequences will be world shattering. But we’ve learned what price inaction exacts. No one survives the cartoon bomb, except the ghosts. DM
Photo: President Jacob Zuma participating in The New Age SABC Business Briefing held on Friday in Cape Town which is aimed at unpacking some of the key messages and actions from the Stae of the Nation Address 10/02/2017 Kopano Tlape (GCIS)