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19 February 2018 13:40 (South Africa)
Opinionista Paul Hoffman

Analysing the Analysis: Why co-operation across the political divide cannot work

  • Paul Hoffman
    paul-hoffman.jpg
    Paul Hoffman

    Paul Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt

The symptoms of what ails South Africa’s politics are correctly identified by Marianne Thamm in her analysis, “Desperate times require co-operation across South African political divides” – corruption, joblessness, poverty and inequality. The causes deserve consideration before all political parties jump into bed together and start soulfully singing Kumbaya.

The actual origin of the saying “Never argue with a man who buys ink by the barrel” is disputed and probably unknown. Nevertheless, it is safe to say, in this day and age, that electronic publications do not require ink and that the sexism inherent in the use of the term “man” in it is both politically incorrect and indicative of the age of the aphorism.

It has been credited in American case law to both Mark Twain and publicist William I. Greener, Jr. [Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 744 (Cal. 1989) crediting Twain as the source of the famous adage; State ex rel. Plain Dealer Publ’g Co. v. Geauga Cty. Court of Common Pleas, Juv. Div., 90 Ohio St. 3d79,89 (Pfiefer, J., dissenting) (‘The majority has elevated Greener’s law’ (‘Never argue with a man who buys ink by the barrel”)’)]

It has also been credited as “undetermined” by Ralph Keyes, the quote verifier. The Mark Twain House in Connecticut has no record of Twain saying the phrase.

Never quarrel with a person who occupies vast expanses of electronic column space” is an appropriate update of the undisputed wisdom in the saying.

Daily Maverick columnist Marianne Thamm is such a person; so careful thought and prudent hesitation is necessary before picking a quarrel with her formidable intellect and usually acute analysis of the state of affairs in the nation.

Regular readers of Daily Maverick will by now have guessed that a bone is about to be picked concerning her analysis dated 31 January headed “Desperate times require co-operation across South African political divides”. Whether the title of the piece is derived from the ancient Greek saying of Hippocrates, “Desperate diseases require desperate remedies”, or from the name of the popular television series Desperate Housewives or from something in between, matters not. What does require examination is Thamm’s underlying assumption that treating symptoms of the current ailments of the country, without paying attention to the causes, will, through co-operative effort, get the country back on its feet.

The symptoms are correctly identified by Thamm. In short: corruption, joblessness, poverty and inequality.

The causes are overlooked. They deserve consideration before, at Thamm’s behest, all political parties jump into bed together and start soulfully singing Kumbaya to save our national skins from failure as a state.

It is true, as Thamm observes, that the new SA started out with high hopes. There were rainbow expectations and a deal, a national accord, encapsulated in our state-of-the-art Constitution with its justiciable Bill of Rights. The deal was unity in diversity, constitutionalism in a multiparty democracy under the rule of law in which openness, accountability and responsiveness were meant to be the guiding values of the governance of the nation. The notions of the promotion of equality, respect for human dignity and the enjoyment of the human rights guaranteed to all have not been properly realised on the watch of the ANC. Instead we have a partially captured state in which poverty, unemployment and grinding inequality of unacceptable scale are the order of the day.

Why? What caused this sorry state of affairs?

The pursuit of the ANC’s National Democratic Revolution, the conflation of party and state and the capture of the criminal justice administration have, between them, brought us to the pickle we are in at present. There are other factors at play, but these, it is suggested, are the main culprits.

Even Cyril Ramaphosa is a disciple of the NDR. He said as much at Nasrec. The central aim of the NDR is hegemonic control of all of the levers of power in society (not just in politics). Loyal adherents to this revolutionary programme have been deployed by the various cadre deployment committees of the ANC in positions in the public administration, the Chapter Nine Institutions and the state-owned corporations. Perhaps even in the judiciary. Due to the fact that their first loyalty is to the ANC and its revolutionary agenda, the values of the Constitution have been allowed to fall into disuse, or worse, have been undermined in the interests of advancing the revolution. When loyalty to party programmes is allowed to trump loyalty to the state principles, troubles of the kind currently experienced follow.

It is true that many analysts regard the NDR as part of the “theatre of ANC politics” and lacking in any real substance. A visit to the “strategy and tactics” page of the ANC website shows that the leadership of the ANC is still serious about the revolution. The late Professor Kader Asmal, an ANC grandee, counselled against continuing the revolution after 1994, suggesting that the need for it ended with the settlement that gave birth to the new order. His entreaties fell on deaf ears and he eventually resigned from politics (rather than vote for the demise of the Scorpions) a disillusioned cadre.

The fundamental problem with the revolution is that it envisages a one-party state (that is what hegemony entails) and does not have any recognisable adversary other than the mythical
“white monopoly capital” so adroitly exploited by Bell Pottinger spin doctors on behalf of the Guptas. The NDR is deeply, darkly inconsistent with the notion of multiparty democracy under the rule of law in which an impartial and independent judiciary of impeccable integrity jealously guards the institutional checks and balances on the exercise of state power and upholds the doctrine of the separation of powers in its adjudication of disputes, especially those cases that involve the need for the state to respect, protect, promote and fulfil the rights in the Bill of Rights.

Cadre deployment in the state-owned companies and the public administration is both illegal and unconstitutional. That has not prevented the ANC from persisting in it in defiance of court findings as also the clear wording of the Constitution itself. The requirement that there be “good human resource management and career development practices” is honoured in the breach by the ANC. Incompetent, under-qualified and even dishonest party loyalists have elbowed aside meritorious candidates for every position from president to porter.

To expect the opposition parties, especially those of them who do demonstrate genuine fealty to the values of the Constitution, to co-operate, in the manner envisaged by Thamm, with those waging the revolutionary agendas of the ANC and EFF is a tall order. Until the revolutionary thinking is abandoned there is no realistic hope for inter-party co-operation of the kind pleaded for by Thamm, nor should there be.

The dangers inherent in the conflation of party and state have been discussed recently by Professor Pierre de Vos and do not require much further elaboration here. When as well educated and urbane a politician as Dr Zweli Mhkize attempts to solicit a bribe for the ANC from Prasa, as revealed in Parliament by Lucky Montana, then the plot has truly been lost at the highest levels in the ANC. Mhkize is still a member of its NEC, mercifully no longer in the Top Six. No wonder he did not want to disclose his personal income tax returns when asked to do so at a Cape Town Press Club lunch by Maya Fisher-French late last year. He is yet to be arrested, but then neither has Jacob Zuma or anyone else involved in the shenanigans known and unknown.

The press has been reporting on the Estina farm debacle in Vrede since 2013. Now the Hawks have suddenly grown wings and fly into active investigation. No arrests yet. No indictment says the NPA, only a DA draft from 2017.

Assuming, probably incorrectly, that the ANC sees the wisdom of greater fealty to our constitutional order, abandons the NDR, and no longer conflates party and state, then the elephant still standing in the room is the phenomenal success of State Capture by deployed cadres and greedy businessmen with the concomitant high levels of corruption.

Due to the capture of the criminal justice administration itself, it will be necessary to address the ravages of corruption through the establishment of strong institutions of state that are adequately equipped to see off the corrupt in short order; institutions that have not been captured, whether partially or otherwise, and are not vulnerable to capture.

Fortunately the courts have done the groundwork on this aspect of our national crisis through their judgments in the Glenister litigation. The political will to properly implement the criteria set in binding fashion by the courts is all that is missing at this stage. The Hawks have been a miserable failure at preventing, combating and investigating corruption in high places. Their capture turned them into the “dirty tricks department” of the Zuma faction, as best illustrated by their persecution of Pravin Gordhan in cahoots with the execrably somersaulting Shaun Abrahams.

The state capturers are fighting a rear-guard action as their secret dark doings tumble out into the sunlight of scrutiny by investigative journalists, parliamentary committees, courts of law, academics and faith-based organisations. The possible charade of the State Capture commission and the belated attempts at investigation of the corrupt in high places should fool no one. Without an overhaul of the anti-corruption machinery of state there is no hope for a brighter future. The culture of impunity will continue and the failure of the state will become our lived reality, not just a risk we run.

Inter-party co-operation has to be premised on a mutually acceptable value system, one which serves all the people, not just those bent on revolutionary change of the type envisaged in the NDR. The Constitution offers a value system that appeared to be acceptable to the majority in 1997 when it came into force. Those who regarded it as a stepping stone towards the success of the revolution need to take a good, hard look at what that has achieved in the last 21 years.

The salvation of SA lies in the genuine embrace of our constitutional values and the implementation of the levels of service delivery expected by our Constitution. The Bill of Rights is one of the most sophisticated instruments of its kind in the world. We ought to be proudly making its promises the lived reality of all of our people, not treating the whole Constitution as a hindrance to the aims of the NDR, including expropriation without compensation.

The best practice form of implementation (do we deserve anything less after surviving the Zuma years?) of the Glenister principles is the establishment of a new Chapter Nine institution, the Integrity Commission or Anti-Corruption Commission or Independent Commission against Corruption. Take your pick. Interparty co-operation on making that happen would be a good start on the new path away from State Capture and towards the realisation of the goals of the Constitution, that elusive “better life” for all. Without it we will remain stuck in the mire of State Capture. None of the existing institutions can be trusted to do the necessary to vanquish the capturers of the state.

The draft legislation has been prepared, the submissions have been made to Parliament, lobbying has been pertinacious and strident. Generating the political will to just do it is all that is required if the escape from failure as a state is to be effected.

There is still hope, if the necessary co-operative effort is keenly focused on what we need most: anti-corruption machinery of state that actually works. DM

  • Paul Hoffman
    paul-hoffman.jpg
    Paul Hoffman

    Paul Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt

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