In South Africa there are still groups and individuals, perhaps not numerous enough though, who strive for the enhancement of constitutionalism and for the proper implementation of the rule of law. There are too few in politics, the management of the police and in the criminal justice administration in general who operate on the basis that the Constitution and the rule of law are supreme.
None of us pay much attention to the popular myth of Emperor Nero fiddling while Rome burned.
The myth illustrates poor leadership, but it is just that — a myth. The phrase is used to criticise someone who is doing something trivial or irresponsible in the face of an emergency. Nero was blamed for ignoring a serious matter and neglecting his people while they suffered.
In the summer of AD 64, Rome was devastated by a huge fire that lasted six days. Half the city’s population was made homeless and the blaze destroyed 70% of the buildings. The Romans wanted someone to blame, and they looked to their already despised emperor.
In the winter of AD 2021, an “attempted insurrection” (to use the presidential terminology) took place over eight days in KwaZulu-Natal, spreading to parts of Gauteng. Many buildings were burnt down and much destruction was wrought. More than 330 people died violently and looting was widespread. No one has been held to account for the attempted insurrection.
Is President Cyril Ramaphosa suffering from the same dysfunction that was attributed to Emperor Nero all those years ago? Judith February has, in exasperated anger, called upon him to “Lead, Mr President, Lead!” Her article “Political leadership: President Ramaphosa, lead us into the light” was published by Daily Maverick on 20 November.
Modern clinical psychologists confirm that dithering in the face of an emergency is a symptom of what they call the avoidance syndrome. More generally, a fear of conflict situations is what drives the avoidant personality type. An inability to seize the nettle in difficult situations manifests itself in the behaviour of those who dither when strong action is required.
The dithering that has characterised the Ramaphosa presidency is already the stuff of legend. Elected by a narrow majority, which was secured with the help and support of a palpably crooked deputy president in DD Mabuza, the platform upon which the leadership of Ramaphosa is based has two mutually contradictory main elements.
The first is Mabuza-inspired. It seeks to secure the unity of the ANC in the face of waning electoral support, factionalism, widespread corruption and failure of service delivery.
The second is the presidential renewal agenda for the ANC: the “new dawn” in which it cleanses itself of the corruption and the inefficiencies or lack of capacity currently manifesting widely in SA. These symptoms are often caused by cadre deployment, which practice the contrary-wise president wishes to retain despite the damage done.
Choosing renewal and unity as the main planks of his presidency has given him the opportunity for dithering between implementing the reforms required and keeping the fragile unity of the faction-riven ANC in place by delaying the necessary reform process. Unity sees too many cadres, from Cabinet to branch level, enjoying impunity. Renewal risks seeing too many donning orange prison garb to maintain unity.
The dynamics of his dithering were brought into sharp focus during the last round of evidence the president gave to the State Capture Commission. The suitability of Mabuza (and Zuma) henchman David Mahlobo for a Cabinet position was under scrutiny:
President Ramaphosa: I am waiting for the Commission’s report in this regard to be able to make my judgment. [12 August 2021 — Day 428, Page 58 of 183]
Adv Pretorius SC: Well, sadly we will come back to that because it is a central part of your explanation for the events and your own relation to those events over the past 10 years.
Chairperson: Well, let me add this, Mr President, I think it is almost certain that when this Commission has completed its work and handed its report over to you and the report has become public, as I take it, it will be at some stage that there will be review proceedings and I would not be surprised if even before it finishes its work papers are being drawn to take some of the findings that it will make on review. At that stage people might say but, Mr President, you cannot do anything, you must wait until the outcome of the review process, so will you wait for that as well?
Despite the directness of the admonition from the learned chairperson of the commission, the president continues to insist on dithering, even in his reply, which is best summarised as a “Yes” to the last question put to him in the quote from the official transcript of his evidence set out above. This is not the stuff of which decisive leadership (in a time of national crisis around electricity and water supplies, joblessness, Covid-19, crime, poverty and inequality) is made.
A slower-burning issue is the need for the reform of the criminal justice administration to enable it better to deal with the rampant serious corruption blighting the future of the economy and indeed the state itself.
On 4 August 2020, the National Executive Committee (NEC) of the ANC let it be known publicly that it had issued an urgent instruction to the national Cabinet to establish an independent, permanent and stand-alone entity to deal with corruption without fear, favour or prejudice.
There is absolutely no evidence in the public domain that the president and his Cabinet have paid the slightest attention to the instruction given by the NEC, despite its obviously urgent nature.
The ditherer-in-chief instead made a nonsensical announcement during his State of the Nation Address (Sona) of February 2021. Here is what the president said:
“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to Parliament.”
The envisaged advisory council, if it is ever appointed, will be no more than a vehicle for further dithering. No announcement in relation to appointing its members has followed. There is no proper advice such a council could give other than that the courts have already, in binding terms, set out in the Glenister cases what the criteria are for the anti-corruption entity that is required both in terms of the Constitution and in terms of the international treaty obligations of the state. Implementing the court findings fully and effectively is all that remains to be done. For obvious reasons, these steps were not taken on Jacob Zuma’s watch.
The Scorpions, closed down in a treacherous move by Zuma that enabled State Capture to proceed unhindered, was “an independent statutory anti-corruption body”, but it was not permanent. As a mere creature of an ordinary statute, a simple majority in Parliament was able to, and did, bring about its demise. The NEC has recognised the need for a permanent body in its August 2020 resolution. Permanence cannot be achieved in the form of a mere statutory body; a constitutionally protected body is what is required, so that permanence is guaranteed.
The “strategy” to which the president referred during his Sona address is apparently a strategy designed to perpetuate the dithering on one of the most urgently required reforms in SA today.
When it became apparent that the urgency required by the NEC was being ignored, Accountability Now suggested draft legislation, including a draft constitutional amendment, designed to give effect to both the court rulings and the resolution of the NEC. The drafts were made available to the presidency, to the Constitutional Review Committee of Parliament and to the National Prosecuting Authority (NPA) in August 2021.
Apart from a computer-generated acknowledgement of receipt from the Presidency, no written response has been received from the executive and the legislature, while the NPA “noted” the suggestions.
After the National Director of Public Prosecutions, advocate Shamila Batohi, made a plea in November 2021 to improve the independence of the NPA, a matter covered in the drafts submitted by Accountability Now in August 2021, the drafts were sent to the committee she addressed in the National Assembly, the Justice and Correctional Services Portfolio Committee. No response has been received, yet again.
It is curious that the NEC of the ANC has apparently remained passive in the face of all the dithering currently in evidence in response to its urgent instruction to Cabinet noted above.
The ANC has its own financial, organisational and logistics problems at this time. A letter emailed to its acting secretary-general reads, in part:
[Cabinet members] are regarded as the deployed cadres of the ANC and are required, in terms of normal party discipline, to give effect to the decisions of the NEC that apply to Cabinet, provided they are lawful.
There can be no doubt that the urgent instruction given by the NEC to Cabinet, as reported on 4 August 2020 (and quoted above), is of a lawful nature. Indeed, it accords with the binding criteria set by the Constitutional Court for the anti-corruption machinery of state in SA in the court’s interpretation of the obligation of the state to “respect, protect, promote and fulfil the rights” set out in the Bill of Rights. As you are no doubt aware, these criteria are commonly referred to (even in the official NACS documentation) as the “STIRS criteria” being: specialised, trained, independent, resourced and secure.
[We] are concerned that nothing appears to be happening to translate the wishes of the NEC into reality. The credibility of the ANC suffers and the countering of corruption is prejudiced by the lack of progress in implementing the NEC resolution announced on 4 August 2020.
No reply has been forthcoming from Jessie Duarte at the time of writing. Perhaps she has been preoccupied with coalition politics, maybe she has not seen the email.
It remains to be seen whether the national interest, and indeed the interests of the ANC, will be served by the unresponsiveness of those who have been approached to engage on the topic of countering the corrupt.
The unsatisfactory lot of those who have whistle-blown State Capture prompted a second letter from Accountability Now to the president after Bain whistle-blower Athol Williams fled the country fearing for his life and Babita Deokaran, who exposed covidpreneurism, was murdered. The letter reads, in part:
The legal framework for the protection of whistle-blowers is currently insufficiently broad as well as porous and inadequate. Neither the Witness Protection Act nor the Protected Disclosures Act are structurally and operationally fit for the purpose of protecting whistle-blowers, especially those who are not yet identified as witnesses in pending criminal proceedings. Far too many of the corrupt continue to enjoy impunity because far too few of them are currently prosecuted. Some observers interpret the eight days of disorder in July as evidence of the corrupt seeking to extend their impunity.
There is already draft legislation before you and before the Constitutional Review Committee of the National Assembly, which has been prepared (and presented on 23 August 2021) with a view to assisting and accelerating the reform of the criminal justice administration so as, inter alia, to better protect the whistle-blowers of SA. The drafts are explained here.
We ask that the remedial legislation urgently be considered by Cabinet, debated by Parliament and made law after a suitable public participation process in which the ideas of various organisations that have taken the lot of whistle-blowers to heart can be ventilated.
Once again the computer-generated acknowledgment of receipt and then deafening silence. Accountability and responsiveness are foundational values of our constitutional order. Both are conspicuously absent. The current paralysis in governance has its roots in putting party before state, but it is considerably exacerbated by the avoidance syndrome that leads to the dithering chronicled above.
It is to be hoped that fear of losing majority support in 2024 will generate the political will necessary to look into the various matters raised with those currently in positions of authority. The lot of whistle-blowers and the impunity of the corrupt are related issues that will test the oversight role of Parliament to its limits.
Both issues cannot wait until 2024. If by the time of delivery of Sona 2022 there is no positive progress in evidence, litigation may become the last remaining option available to constitutionalists. DM