Defend Truth

Opinionista

Keeping the faith with constitutional democracy – it’s not too late to save South Africa

mm

Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.

If we want to continue to live in a constitutional democracy under the rule of law we ought not to relax our vigilance. The Zuma-era agents are lurking everywhere, only the Guptas have run away to Dubai. The institutional damage done will take years to repair. The huge amounts involved in ‘covidpreneurism’ show that the spirit of kleptocracy lives on.

It is not only in South Africa that constitutional democracy under the rule of law is under sustained assault. The storming of the Capitol in Washington, the coup in Myanmar, the changes of regime in Poland and Hungary, the overall failure of the Arab Spring movements and the rise of toxic nationalisms, jihadism and other forms of violent extremism around the world all make it difficult to see a bright future for constitutional democracy under the rule of law.

Even the spat over vaccines between the post-Brexit UK and the EU is symptomatic of the ailments of governance both before and after the pandemic.

Our home-grown South African brand of constitutional democracy which finds expression in the 1996 Constitution is held up as a model to those emerging from authoritarian and/or dictatorial rule into the calmer waters of governance under the rule of law. We have embraced openness, accountability and responsiveness as our watchwords and we regard the rule of law as supreme in our multi-party democracy in which politicians do not rule as they please, but govern in a manner that has to be consistent with the Constitution; supposedly so.

We revere the separation of powers, we insist on checks and balances on the exercise of political authority, we have a fourth branch of government in the form of Chapter Nine Institutions which were created to support constitutional democracy; we are proud of our impartial and independent courts and we elect parliamentarians in free and fair elections to exercise oversight of the executive branch of government so that the promise to “respect, protect, promote and fulfil” the rights guaranteed to all in the Bill of Rights is kept. Supposedly so.

Not for us the authoritarian excesses of the apartheid-era parliamentary sovereignty; no more rule by diktat, no more secrecy and securitisation of the state with state-sponsored murder and mayhem; supposedly so. The famous words “free at last, free at last, thank God we’re free at last” rang out joyously in South Africa during ANC celebrations of the first democratic elections held after the relatively peaceful transition from the old order.

Yet here we are, 26 years later, transfixed by the revelations pouring out at the Zondo Commission, a commission which would not have seen the light of day were it not for the steadfastness of one woman, Thuli Madonsela, who, in her capacity as Public Protector, one of the six Chapter Nine institutions, insisted on a proper inquiry into complaints about the phenomena that we now call State Capture.

It is at present apparent to any sentient being that during the Zuma era (December 2007, when he triumphed at Polokwane, to February 2018 when he resigned ignominiously) a shadow state was formed for the purpose of enriching an intricate web of patronage networks held in position by overarching allegiance to the imperious Zuma presidency. The looting probably exceeds a trillion rand in value, the damage to the fabric of society is inestimable and the task of rectifying the mess has barely begun, if it has begun at all.

Participative and truly patriotic citizens ought to be aware that properly implemented constitutional democracy is the best form of governance available to humankind. We chose it for our country during the early 90s as part of a carefully thought through National Accord. It is universally vulnerable to the type of assault that Zuma’s confederates launched on it in SA; but it is durable, resilient and it best serves the interests of the poor and the marginalised, of whom there are still too many in SA.

The ANC’s commitment to constitutional democracy under the rule of law is somewhat ambivalent. An examination of its strategy and tactics, all spelt out on its website, reveals a commitment to a “National Democratic Revolution” (NDR) in which the ANC aims to secure “hegemonic control of all levers of power in society”. This is not the language of constitutional democracy, it is the language of an ideology of a bygone era, tried, without success, in the USSR, China, Eastern Europe, North Korea and Cuba. Only the latter two cling tenaciously to the outdated ideas of communism.

While constitutionalism is a sustainable credo for governance in the 21st century, corruption is not. Indeed, corruption is only sustainable until there is nothing left to steal, whereupon the corrupt collapse in a heap or move on to the next country that is ripe for corrupting.

It is so that the ANC voted for the Constitution, the president is one of its architects, and that efforts are made by ANC thinkers to square the circle in a way that makes the NDR consonant with the Constitution.

The difficulty, as the shadow state formed in the Zuma era shows, is that loyalty of ANC cadres to the revolution is inconsistent with adherence to constitutional principles according to which the state, the public administration and the SOEs are legally obliged to operate. This conflict is intractable and brings about noxious paralysis due to the rule of law clashing with the aims of the revolution. It is also apparent that the revolutionary intent is used as a justification for painting outside the lines of constitutionalism.

So, for example, when Menzi Simelane joined the supposedly independent National Prosecuting Authority to “implement the vision of the ANC” he did not have independence from the executive branch of government in mind. Instead, he had hegemonic control of the levers of power in the criminal justice administration in mind. He was relieved of his post by the Constitutional Court, which found it irrational to appoint a person given to lying on oath as leader of the prosecution service that is meant to function independently and with integrity.

These two attributes are still in short supply due to the hollowing out and compromising of the entire criminal justice administration during the Zuma era. The disbandment of the Scorpions and its replacement with a mere police unit, called the Hawks, falls foul of the same criticism. Many good public servants left rather than participate in the creation of the shadow state which still haunts the populace. Some are bravely returning in the hope of re-establishing the rule of law and ending the capture, the kleptocracy and the grand corruption that marked the Zuma era.

Those who would prefer to live in a constitutional democracy under the rule of law ought not to relax the vigilance required to maintain a free society. The Zuma era agents are lurking everywhere — only the Guptas have run away to Dubai. The institutional damage done will take years to repair. The huge amounts involved in “covidpreneurism” reveal that the spirit of kleptocracy lives on after the end of the Zuma era.

The exacerbation of factionalism in the ANC is but a symptom of State Capture. The stench of corruption hangs heavy over the land, the sight of water cannons firing on desperate disabled and aged persons in a Sassa queue, the suspicion that there is little public money left to steal and the sorry legacy of Zuma, now refusing to be interrogated while Zondo DCJ presides at the State Capture Commission, all agglomerate to suggest that constitutionalism is under stress in SA.

While constitutionalism is a sustainable credo for governance in the 21st century, corruption is not. Indeed, corruption is only sustainable until there is nothing left to steal, whereupon the corrupt collapse in a heap or move on to the next country that is ripe for corrupting.

Fixing the mess is not impossible. The political will to do so is present in South African society, particularly in civil society, business, the faith-based sector and in the trade union movement. All of the players need to coalesce behind a single preliminary demand: the urgent establishment of a new Chapter Nine Institution to deal with the corrupt is required. A single entity of independent outlook and with a specialised mandate is needed now. All staff must be integrity tested (as has been done in the SIU for years) and the appointments processes must accord with the best practice methods in the world.

Fortunately for those wishing to save SA from the ravages of the corrupt, the NEC of the ANC has resolved, as long ago as August 2020, that Cabinet must urgently attend to the establishment of an entity (or “agency” as it was called) of this kind. Combined and concerted pressure on the Cabinet to act on the NEC resolution, or, in the absence of progress by the Cabinet, public interest litigation aimed at fixing the mess in the criminal justice administration are the tools available to those who want to see the crooks and thieves in orange overalls and the country back on an even keel.

It will be both difficult and embarrassing for the ANC-led government to resist litigation aimed at achieving precisely what the NEC has called on the Cabinet to establish, especially so as the claims will be for the proper implementation of the decisions of the Constitutional Court in the Glenister litigation. DM

Gallery

Comments - share your knowledge and experience

Please note you must be a Maverick Insider to comment. Sign up here or sign in if you are already an Insider.

Everybody has an opinion but not everyone has the knowledge and the experience to contribute meaningfully to a discussion. That’s what we want from our members. Help us learn with your expertise and insights on articles that we publish. We encourage different, respectful viewpoints to further our understanding of the world. View our comments policy here.

No Comments, yet