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There are no quick fixes to SA’s current political crisis


Judith February is executive officer: Freedom Under Law.

There is a temptation to seek neat, clean answers to South Africa’s current political crisis. The problem is that there are no simple answers to what happens next whether it relates to who walks away with the spoils at the ANC elective conference in December or whether citizen mobilisation will indeed stop the rot and help us find a way out of this rabbit-hole of corrupt leadership and a weak, compromised state.

When President Jacob Zuma axed Finance minister Pravin Gordhan in a cowardly “dead of the night” act, he gave no reasons. Neither did he provide reasons for reshuffling his cabinet for the umpteenth time. It seems the paranoid President initially used a so-called “intelligence report” which suggested that Gordhan and Jonas were plotting against him by discouraging investment. Yes it was flimsy, lacking in substance and entirely unbelievable – but any excuse would do to get rid of Gordhan and Jonas. In firing Gordhan, Zuma exercised public power in a way that was arbitrary and undermined the national interest.

And herein lies the rub. Until now our analysis of governance has been done within the strictures of the Constitution and the rule of law. Though the Constitution itself has been the subject of contestation, there has been a general acceptance that good governance requires adherence to the rule of law.

In the halcyon days President Nelson Mandela set a firm example. One of the defining moments of Mandela’s presidency was when he took the stand in the case of the President of the RSA and Others versus South African Rugby Football Union (Sarfu) and Others in 1999. The year before, Mandela appointed a commission to investigate allegations of racism, nepotism and corruption against Sarfu, which approached the court in order to stop the commission’s work. Judge William de Villiers saw fit to subpoena Mandela to give evidence about why he ordered the probe. This sparked much debate about whether the president should have to defend his every decision in a court of law. Mandela chose to do so in this case, and was subjected to a lengthy cross-examination by Sarfu’s legal counsel. Judge de Villiers eventually ruled in favour of Sarfu, setting aside the government’s inquiry and called Mandela “an unsatisfactory witness”. This is an important bit of legal history. That Mandela was prepared to place himself in such a position of scrutiny was a singular act of leadership. It not only showed his commitment to the rule of law and the Constitution, but was also a visible reminder that no one, not even the president, was above the law. Zuma has shown no such appetite for accountability.

During the Mbeki years, two seminal cases came before the ConCourt, namely Grootboom and TAC, on the right to housing and health-care respectively. The state lost both and acceded, albeit begrudgingly.  They were cases that were important markers during the early years of our Constitutional democracy.

Many of our corruption travails today have their genesis in the arms deal, the fudging of processes and the direct executive interference into the Parliamentary investigation at the time. Mbeki’s hand was definitely in the manipulation of process specifically in relation to the Public Accounts Committee. That may sound like ancient history but it is nevertheless important for our understanding of the current trajectory. The rise of Jacob Zuma took place in this context.

And so the Constitution and its efficacy were tentatively being tested during that time. Yet our analysis of our constitutional aspirations seemed still to hold water. Surely even after the arms deal investigations, unsatisfactory as they were, we would be able to work to prevent similar instances of grand corruption in future?

We were ill prepared for the brazenness with which Zuma would disregard the rule of law and the Constitution.

During the Zuma years we have witnessed a creeping securitisation of the state whether it is through the drafts of the Protection of State Information Bill (POSIB), the National Key Points Act revision, signal-jamming during the State of the Nation Address and increased violence against protestors.

When miners were shot down by a violent state in 2012 we declared a “watershed”. After the Nkandla judgment many (this writer included) said that this was a “line in the sand” and a triumph for the ConCourt.  It was and it wasn’t, we now know. Again and again the judiciary has had to step into the breach where our politics has failed and where Zuma himself has undermined the rule of law. Our democratic institutions are reeling under the strain of “lawfare”. One needs to look no further than the National Prosecuting Authority for proof of that. But Zuma’s long hand has extended to state-owned enterprises such as the SABC where the discredited former SABC CEO Hlaudi Motsoeneng was allowed to spend recklessly and act in the manner of a tin-pot dictator.

As the courts become a site of struggle is it any wonder then that Zuma felt the need to reshuffle the Judicial Services Commission and replace some independent-minded members? Again, there were no reasons given.

Time and again Zuma has scoffed at the ConCourt and refused to accept responsibility for the Nkandla matter. Equally, some of his cabinet ministers have been given license to “go rogue” as Social Development minister, Bathabile Dlamini showed when she missed several ConCourt deadlines to explain why she should not be held personally liable for the costs in the Sassa matter. 

The strength of the Constitution depends on the ability of those in power to protect and defend it and to submit to the rule of law. With the brazen axing of Gordhan without reason, Zuma has shown himself to be beyond scrutiny. His Presidency is now capricious with its aim being shoring up power for himself and his associates. He feels neither constrained by the law, or by the ANC and its rules and traditions as he seeks to pave the way for Nkosazana Dlamini-Zuma to become his successor.

So in these circumstances analysis becomes difficult because the “rules of the game”, tenuous as they have been in South Africa, barely apply. Predictability has gone out of the window and we are in the realm of the unknown now. The ANC itself is rudderless, detached from its founding values and the rot is so deep it would take decades to fix.

Where is South Africa is headed? If there was a neat answer, it’s that no one really knows. So this is neither a watershed moment nor any of the other clichés we seek to employ in our analysis. It is the cumulation of a serial lack of accountability by those in power and changing course will be complex. It will also need more than a whimper from civil society, business, academia and the churches. We, the people have not lost our power and our ability to fashion a country where the corrupt are punished and where those in power adhere to the law. We are seeing nascent signs of this in marches and rallies across the country and this momentum needs to be sustained. It will be a marathon not a sprint or a once-off event.

Because the reality is that in the past 23 years we have, as South Africans, generally lived in our silos and pretended that democracy and fixing things was somebody else’s problem. We are all to blame for that. Mostly phrases like “public participation” became esoteric discussion points as inequality rose and our public debate became more polarised. What we are painfully realising is that the work of democracy belongs to all of us – and that it is indeed, work. Connecting the dots between our individual and corporate struggles is crucial. How power is exercised and resources allocated is all of our business, we are beginning to learn. We cannot simply leave it to the politicians to “do the right thing” or bridge the divides within our communities because our futures, rich and poor, black and white are intrinsically linked.

Can we at this late stage of the game try to bridge the divide and pull our country out of the abyss once more? When the editor of the Financial Times tweets that South Africa’s current situation is “not quite Venezuela but serious enough”, then we probably have to sit up and take notice.  The “enemy” is now less clear than during apartheid and so it has become easy for Zuma to divide through the sham rhetoric of “white monopoly capital”, calls for nationalisation and our old bugbear, race. A revolution in good governance will need to start at the bottom. This takes time. It will also mean monitoring institutions such as Parliament far more closely and taking the public participation element in the Constitution far more seriously. S59 of the Constitution, which sets out “public involvement”, extends to all areas of law making but the Constitution intends it to apply to all areas of public life as well. “Public participation” have been watchwords since 1994 however many communities have felt excluded from decision-making processes especially at local level. This was seen in the Vuwani demarcation unrest (still ongoing) and also in Tshwane last year. Continuous education on participation processes creates a greater demand for accountable governance and a society in which those in power cannot merely pay lip service to the participatory democracy the Constitution envisages. A robust, independent media will play a decisive role in holding the powerful to account.

The SA Federation of Trade Unions (Saftu) was formally constituted this past week at its founding congress. Led by former Cosatu secretary-general Zwelenzima Vavi the federation has the potential to provide impetus for greater worker mobilisation. This will require focus and strategic leadership to prioritise workers’ issues and again creating the links between the poor state of labour relations, failed tender processes and corruption. Any new federation simply aimed at removing Zuma, criticising him or indeed enriching a new leadership elite, will fail.

The seismic shifts in global politics also means that we are in unknown territory. The recent referendum win by Turkey’s President Tayyip Erdogan to increase his powers is instructive and in this climate it is easy to become hopeless.

Yet, while South Africa may not be exceptional it still has many exceptional men and women who are committed to seeing this country prosper. They are in business, civil society and also found amongst the ordinary people who seek to do the hard work of democracy in their communities. They have no “Plan B” should things go pear-shaped, and they can be found across race and class despite what those who would seek to divide us say. 

The quotient of hope still glimmers however faintly for us at the southernmost tip.

Yet, one cannot help feeling that this is our one last chance to reshape our politics. DM


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