Foremost among the founding provisions of the constitutional order in South Africa are the notions of a multi-party system of democratic government “to ensure accountability, responsiveness and openness”. These values rank alongside the supremacy of the Constitution and the rule of law in section 1 of the Constitution.

Our state, under the Bill of Rights, must respect, protect, promote and fulfil the rights guaranteed to all in the bill. Life, dignity, bodily and psychological integrity are all among the rights so guaranteed. So are access to food, water and healthcare. Rights to property are still regarded as sacrosanct, at least on the paper on which the founders of the new SA wrote the Constitution.

All of these values and rights were called into question by the carefully planned and executed looting, rioting and violent protesting that has marred a midwinter of discontent in two of the nine provinces of SA in the week starting 9 July 2021. Bands of well-organised looters set about the orchestrated and coordinated disruption of normal life in the shops, factories, malls and highways of KZN and then Gauteng.

Security services of the state (police, defence force, state security services) were conspicuously absent and ill-prepared. Intelligence-gathering failed or was ignored by those who could and should have acted on it. Civil society in the form of neighbourhood watches, WhatsApp groups and taxi associations stepped into the vacuum and saved the day.

It is too early to embark on a proper analysis of the causes and effects of the disruption. More facts, and the identity of the organisers, will become apparent during criminal prosecutions that must follow the dastardly deeds perpetrated. What does seem clear, at least from the demands openly made by Carl Niehaus and 16 other malcontents of the so-called radical economic transformation faction of the ANC, is that the faction fighting within the ANC is coming to a head. The fallout follows the incarceration of former president Jacob Zuma pursuant to civil proceedings arising from a complaint made by the Zondo Commission to the Constitutional Court.

The criminal justice administration was not involved in the proceedings until the arrest of Zuma, yet the complaints around his incarceration seem to be directed at the ANC leadership, the Cabinet and the state. A more gross misdirection is difficult to imagine. All organs of state are bound by court orders affecting them. The police had no option but to arrest Zuma and the Cabinet had no role whatsoever in his being found guilty of contempt of court.

As the dust appears to settle it is apparent that the centre did hold (at least for now) and that constitutionalism prevailed over what has variously been called thuggery, a coup attempt, insurrection, criminality, (terrorism, treason and sedition) a counter-revolution, protesting and ethnic mobilisation. Time will tell which of these labels, if any, fits the facts both already in evidence and those yet to emerge during the criminal trials that must follow if accountability means anything in SA today.

The endemic failure to exact accountability is at the centre of the matrix of circumstances that allowed public discourse to reach such an unfortunate stage.

Accountability is one of the central elements of the rule of law. As has been observed by Ashraf Ghani and Clare Lockhart in their book, Fixing Failed States: “The rule of law is a ‘glue’ that binds all aspects of the state, the economy and society. Each of the state’s functions is defined by a specific set of rules that creates the governance arrangements… When rule of law takes hold, it creates a reinforcing loop of stability, predictability, trust and empowerment… [it] stabilizes government and holds it accountable.”

Those who were involved in State Capture in the Zuma years, those who indulged in “covidpreneurism” last year, and all other kleptocrats who have abused the system of procurement of goods and services by the state in SA, would wish to continue to enjoy the levels of impunity put in place during the Zuma administration. Not for them the criminal investigation of their corrupt activities. Heaven forbid that prosecutions in open court should eventuate with orders to disgorge the loot on pain of longer sentences following conviction.

And yet, the Ramaphosa administration, elected on a reformist and anti-corruption ticket, seems to be edging toward holding the corrupt to account. This does not go down well with those who have “smallanyana skeletons” lurking in their past. They fear the recommendations to come in the Zondo Commission Report; they are apprehensive that they will be investigated and made to “pay back the money” they looted during their participation in nefarious activities made possible by the hollowing out of functional capacity and compromised status of the criminal justice administration at Zuma’s behest.

Not only did he manage, via a 2007 ANC conference resolution and a complicit caucus in Parliament, to terminate the existence of the well-functioning Scorpions anti-corruption unit in the prosecution service, he also later contrived to decapitate it by corruptly paying its head to resign. That transaction has been found to be invalid in civil proceedings, but the criminal justice administration remains passive in the face of the gross insult inflicted by the premature termination of Mxolisi Nxasana’s term of office as National Director of Public Prosecutions. Zuma, to protect himself, violated the law by paying a prosecutor to do that which he ought not to have done.

The exacting of accountability requires integrity and probity in the organs of state that are responsible for the administration of criminal justice and indeed for the whole of the public administration. Those who act or make decisions must be able to explain themselves rationally and reasonably if accountability is to become the order of the day. Conduct or laws that are inconsistent with the Constitution are invalid and liable to be struck down by the courts.

Civil society has not stood idly by while the capacity of the state to function in the manner required by the Constitution has been compromised by crooked dealings and bad laws. So frequently does government lose challenges of this nature that ANC leaders have been heard to mutter darkly about our “counter-revolutionary judges”.

As the current constitutional order is the product of a negotiated settlement aimed at transforming SA society into a constitutional democracy under the rule of law, it is difficult to discern the revolution. 

Oaths of office to uphold the Constitution, that are clearly taken seriously by the vast majority of judges, oblige them to apply the law and the Constitution impartially and independently. Doing so is not counter-revolutionary. Calling the actions that followed the arrest of Jacob Zuma counter-revolutionary simply displays confused thinking.

Whatever may emerge in the fullness of time as to the causes, effects and responsibility for the events sparked by the arrest of Zuma, it is plain already that a desire to continue enjoying the culture of corruption with impunity that metastasised during the Zuma years is at least part of the motivation for the disorder. 

If grand corruption is allowed to continue, the failure of SA as a state (the odds of this happening are now even, according to Clem Sunter, the grandfather of scenario-planning for SA) will become inevitable. The president knows this and so does his Cabinet.

The eggshell dancing around the need for criminal justice administration reform must end now. The capacity of the state to deal decisively with grand corruption, kleptocracy and those who aim to capture the state has to be beefed up sufficiently to be able to say, with confidence, that the machinery in place is constitutionally compliant and accords with the nation’s obligations under the UN Convention Against Corruption.

The leadership of the ANC knows this well. Indeed, as long ago as August 2020, Cabinet was mandated to deal with the corrupt decisively. The need for a stand-alone permanent and independent entity to counter corruption is now, a year later, more urgent than ever. The criteria by which it ought to be established have been set in binding fashion by the Constitutional Court in the Glenister litigation.

The best practice way of aligning the public administration with these criteria and the international obligations of SA is to establish a new Chapter Nine institution to investigate and prosecute the corrupt. The urgency of the need to do so is self-evident on even the most casual conspectus of the events that followed the arrest of Zuma.

The time for dithering and delay is over — swift and proactive steps are required irrespective of the number of comrades, cadres and collaborators who may be put in jeopardy by doing so. DM