There has been a great flurry of commentary on the looming confrontation between a recalcitrant former president and the law. Jacob Zuma’s trashing of the rule of law via his defiance of the Constitutional Court order directing him to explain himself under interrogation at the Zondo Commission has drawn a great deal of comment, most of it reactive in nature.
The true cause of the looming problem is that both Zuma and the current secretary-general of the ANC, Ace Magashule, do not regard themselves as bound by the rule of law and the Constitution. The former thinks the ANC comes first and says so, while the latter assures those who listen to him that the Constitution is not “sacrosanct”.
Behind all the drama is a clash in values between those adopted by the country in the Constitution and those of the National Democratic Revolution, the lodestar of the ANC.
A recent weekly newsletter from President Cyril Ramaphosa, in which he defends the integrity of the judiciary and the sanctity of the Constitution, brings to mind an exchange between him and former president FW de Klerk early in 2014.
De Klerk had complained that he did not sign up for the revolution (the National Democratic Revolution) when he negotiated the departure of SA from a race-based parliamentary sovereignty system to the multiparty constitutional democracy under the rule of law that is now in place. Ramaphosa responded by saying that the new constitutional order embodies the National Democratic Revolution. De Klerk then disagreed with him. Their exchange is in the archives of Politicsweb, here, here and here.
The devil is in the detail. The National Democratic Revolution aims at comprehensive or “hegemonic” control of all the levers of power in society.
The goals of the National Democratic Revolution bring to mind the stern warning sounded by American founding father James Madison in the Federalist Papers: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
It is difficult to imagine a functioning constitutional democracy in which hegemonic control of all the levers of power in society (society, mark you, not just government) is put in place by the dominant alliance in politics.
There are features of the policies, programmes, practices, charters and even laws of the ANC-led alliance that do reflect the National Democratic Revolution, but do not actually pass constitutional muster because they are not consistent with the Constitution.
In the following section there is a brief survey of some of the positions taken by followers of the National Democratic Revolution, which are set out in italics, while those of constitutionalists are juxtaposed in normal print so that the contrasting values and stances at play are apparent:
Loyalty to the revolution is the supreme motivation of many of the cadres — loyal card-carrying members of the governing ANC-Communist Party-Cosatu alliance — of the ANC National Democratic Revolution. The answer to the question “Which comes first, the ANC or the Constitution?” is always unhesitatingly given as “The ANC.” Notwithstanding his solemn Oath of Office to uphold the Constitution, South Africa’s fourth president Jacob Zuma from 2009 to 2018, was brutally frank about his prioritisation of the ANC over the Constitution in an answer to a direct question about this in Parliament as long ago as 2012.
The rule of ANC Luthuli House party bosses trumps the rule of law in practice. The party proportional representation list system – which determines who will get elected to national and provincial parliaments and accordingly govern the country as members of the dominant alliance – is controlled solely by ANC party bosses at Luthuli House. As emerged from recent evidence at the Zondo Commission, those who “vote their conscience” are unceremoniously relieved of their position on those all-important party lists of candidates for parliamentary, provincial and municipal office. Expulsion from the party summarily ends the tenure of office of any parliamentarian by law, and the next person on the ANC list is simply substituted for the dismissed representative.
To the South African electorate, the US and UK notion of locally elected national, state or province and municipal representatives that they actually choose, can and do see and meet, and hold fully accountable locally is a fantasy notion: there is only one electoral district for national, state, and municipal levels, and it’s named Luthuli House. The Movement decides which loyal ANC cadres will hold which governing office (and also which civil service/SOE positions) right across the nation, wherever the ANC gets a majority vote.
True constitutionalism entails putting in place checks and balances on the governmental exercise (and possible abuse) of power, with effective oversight of the executive by the legislature as a cornerstone of the system. An independent judiciary rules on disputes, interpretation of the Constitution and laws, and provides independent recourse and remedies to the people. The judiciary has regard only to the Constitution, the rule of law, constitutionally compliant enacted laws and ruling judicial precedents — and not to revolutionary dogma, slogans, manifestos and programmes of politicians.
The ANC National Democratic Revolution is predicated on the tyranny of the majority, a dictatorship of “the people” and the (false) notion that the majority has more rights than the minority, as then president Jacob Zuma openly explained to Member of Parliament Lindiwe Mazibuko in 2012 when she was Leader of the Opposition.
The doctrine of the separation of powers between the three spheres of government, executive, legislature and judiciary, is central to our constitutional dispensation.
The concentration of political and economic power in the party is the fundamental goal of the ANC National Democratic Revolution. The ANC strives for “hegemonic control of all the levers of power in society”, the antithesis of the separation of powers in the hands of three co-equal branches of government subject to the Constitution, the rule of law and genuine political accountability.
A secure, impartial and independent judiciary that is answerable only to the law and the Constitution is fundamental in any constitutional democracy. This structure is necessary because the judiciary is empowered to rule on the consistency of laws and conduct with the Constitution. It may strike down as invalid any law or governmental conduct that is inconsistent with the Constitution.
A tame collection of judicial apparatchiks, loyal to the revolutionary agenda, is what revolutionaries require for the judiciary. Luthuli House revolutionaries rail against the “counter-revolutionary judges” who thwart their plans and programmes by striking them down as unconstitutional. They prefer that judges embrace the values of the ANC National Democratic Revolution unquestioningly, and look forward to the day when all South African judges regard themselves as loyal deployed ANC cadres of the revolution — as currently do some judges and almost all ANC Members of Parliament, directors-general and officers of state-owned enterprises (SOEs) such as Eskom, South African Airways, South African Railways, the South African Broadcasting Corporation (SABC), and perhaps most disturbingly many of the leadership and officers of the South African National Defence Force and the South Africa Police Service.
Six specialised “chapter 9 institutions” were established in accordance with the design of that chapter of the Constitution to implement and maintain constitutional democracy in South Africa. They are required to function without fear, favour or prejudice to support and strengthen constitutionalism in the new South Africa. Chapter 9 institutions are the Public Protector, the Commission for Gender Equality, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Electoral Commission, the South African Human Rights Commission, and the Auditor-General. The framers of the South African transition to a non-racial constitutional democracy were determined that in addition to three co-equal branches of government under the rule of law, six additional strong constitutionalised and independent institutions were essential to provide fulsome protection for the post-apartheid public interest.
The ANC has deployed its most loyal revolutionary cadres under the ANC National Democratic Revolution in most of the Chapter 9 Institutions to do the bidding of Luthuli House without regard for the Constitution and with an eye on the unfolding and entrenchment of the National Democratic Revolution revolutionary agenda. At this time, the incumbent Public Protector Busisiwe Mkhwebane faces suspension, impeachment, disbarment from the legal profession and criminal charges; she has been found to have lied on oath before the apex Constitutional Court and other high courts.
The Constitution peremptorily requires the appointment of public servants who are ethical, unbiased, fair and equitable in their work. They must accountably and objectively deliver services to the public and faithfully carry out the lawful policies of the government of the day.
The ANC National Democratic Revolution actively deploys its revolutionary cadres in the public administration, without regard to or consideration of the merit of non-cadres. This “cadre deployment” is done to secure hegemonic control of the executive, public administration, SOEs and other institutions. The conflicts of interest that this system sets up undermine good governance and effective service delivery.
Unsuitable cadres at best have consultants appointed to do their work while they sleep at their desks, dreaming of the revolutionary utopia; at worst they have been central players in State Capture, grand corruption and the massive plunder of public funds and assets.
The unconstitutionality of cadre deployment in the public administration and SOEs does not deter Luthuli House from “recommending” (and effectively thus anointing) its favourites for the SOEs, the public administration and office at all other levels of the state.
The Constitution contemplates a multiparty democracy in which the economy is of a mixed nature, with strong emphasis on social democracy in the form of a state which “must respect, protect, promote and fulfil” the fundamental political, social and economic rights guaranteed to all in the Bill of Rights – surely pressing business after decades of institutionalised apartheid oppression and gross inequality based outright on race. These principles render the economy as the goose that lays the golden eggs that keep the state in funds for the achievement of the “better life for all” that is foreseen in the Constitution. The cadres of the revolution have in the past paid lip service to these values to keep the economy going. However, Minister Nkosazana Dlamini Zuma has let slip that she sees the pandemic as the opportunity for rolling out the values and economic policies of the National Democratic Revolution.
The ANC National Democratic Revolution aims to establish an order in which the dominant political party asserts its hegemony; the party and state collapse into one; and a pure socialist revolutionary nirvana emerges in a manner not beneficially established anywhere in the world in any country in which it has been attempted.
Open, accountable and responsive governance is required by constitutionalism, and these values are basic requirements or founding provisions for governance and democracy in the new South Africa.
The ANC National Democratic Revolution is pursued in secret behind the closed doors of Luthuli House, where opacity, duplicity, “dexterity in tact” depending on “the balance of forces”, and a complete lack of accountability to the people and the Constitution are hallmarks of its openly revolutionary modus operandi. Governance by sleight of hand is the order of the day in the new SA. If there is any accountability at all it is solely to Luthuli House and not to the Constitution. There is little responsiveness to the needs of the people as can be seen from the disastrous state of service delivery in education, healthcare, housing, and security by both police and defence forces.
The 2012 police massacre of 34 mine workers at Marikana; sprawling nationwide impoverished “informal settlements” consisting of shacks with few basic amenities; the Life Esidimeni deaths of over 140 mental patients in 2016 who were uncared for and essentially died of neglect; massive, rampant and unchecked corruption at the highest levels of government and business; “State Capture” in which even appointments of national Cabinet ministers were determined and dictated by a corrupt cabal of foreign-born businesspeople and unelected cronies; kleptocracy, gangsterism, taxi wars, unsafe trains and electricity shortages and black-outs; and the open personal sale by ANC-deployed SOE cadres of public assets such as portions of railway lines all characterise the ANC National Democratic Revolution.
Oversight of the activities of the executive by a Parliament willing to hold the elected and appointed accountable, and to hold their feet to the fire of fairness, impartiality, honesty, integrity and accountability is the way of the new Constitution. Performance is to be measured against the stated just precepts of the supreme law. Any conduct inconsistent with it is invalid and may be struck down by the courts which answer only to the law and the Constitution.
In effect, Parliament has been reduced to a meek rubber-stamp for the executive and Luthuli House; it is flaccid, ineffective and populated by loyal, compliant and often utterly incompetent ANC cadres, one of whom, for example, testified to the Zondo Commission of inquiry into state capture that she thought “Gupta” (the family name of the notorious cabal of Indian-born brothers who led and benefited to the tune of stolen billions from “State Capture” during the immediately past nine-year Zuma presidency) was an acronym, not a surname.
Non-racialism and gender equality are foundational values of the new Constitution in force since February 1997.
Identity politics, traditionalism and tribalism, male patriarchy and divisive nationalism are all used and abused by the ANC and its National Democratic Revolution to promote its “hegemony over all levers of power” agendas; the LGBTQI+ community (and other still-marginalised and stigmatised groups like the Khoisan and the rural poor) are involved in an ongoing struggle for recognition of their fundamental rights.
The Constitution promises respect for human dignity, the promotion of the achievement of equality and the enjoyment of the rights and freedoms set out in the Bill of Rights.
Under the ANC National Democratic Revolution the country has actually seen an increase in human misery since 1994 due to structurally high unemployment, attributable in part to the un-employability of the uneducated unskilled youth, persistent grinding poverty and inefficiency in government. Incredibly, South Africa’s sky-high Gini co-efficient has risen, not fallen, due to the exacerbation of economic inequality after the end of apartheid during ANC National Democratic Revolution-inspired governance. The rural and urban poor remain as oppressed and impoverished as ever they were under apartheid.
Section 25 of the Constitution entrenches respect for property rights.
The ANC National Democratic Revolution is bent on confiscation of privately owned land, the nationalisation of what it calls “the commanding heights of the economy” and the expropriation of property. The official ANC battle cry, along with support from the improbably named Economic Freedom Fighters led by the red-bereted Chavez-admiring “Commander in Chief” Julius Malema, is “Expropriation Without Compensation” with an eye on illegitimately held (that is, foreign- and white-owned) assets being nationalised. Under the same thinking, calls have been emanating from the ANC for the nationalisation of the South African Reserve Bank, the nation’s central bank.
The inculcation of a culture of respect for fundamental human rights including political and socioeconomic rights is a central aim of the South African Constitution.
The march of the revolutionaries does not have regard to the niceties of a human rights culture. The ANC National Democratic Revolution must be advanced by all available means to secure the hegemonic control of all levers of power in society. Many ANC revolutionaries are at the heart of State Capture. They see it as a way to advance the National Democratic Revolution — and themselves.
It is impossible for the ANC to uphold the National Democratic Revolution and the Constitution at the same time. It is encouraging to read that the president is determined to uphold the Constitution in the face of an unprecedented assault upon it by the defiance of his predecessor in whose Cabinet he served as deputy president.
The ideology that underpins the National Democratic Revolution has not worked anywhere that it has been tried on the planet. It is a good time for the ANC to follow the advice of the late Professor Kader Asmal by abandoning its revolutionary aspirations and getting on with the proper implementation of the Constitution.
Let’s hope the latest presidential newsletter is a step in that direction and not a false new dawn. Killing the goose that lays the golden eggs of economic activity is not indicated at this time, whatever Dlamini Zuma may think. Accommodating and pandering to Jacob Zuma’s intransigence simply exacerbates the culture of corruption with impunity that has flourished because the National Democratic Revolution simply does not align with our supreme law. DM
Nigerians drink more Guinness than the Irish.
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