In recent weeks, Lindiwe Sisulu, a long-standing member of both the Cabinet and national executive committee of the ANC, launched her presidential campaign with a list of insulting epithets and a frontal attack on the rule of law, the negotiated settlement, the country’s “neoliberal” Constitution, the “upper echelons” of the judiciary, “mentally colonised Africans”, “White Monopoly Capital”, and the “co-opted power brokers” of the new elite.
She purports to be doing so on behalf of still oppressed “victims of the rule of law” and dismisses the country’s first non-racial Constitution as “a palliative”.
Though the judiciary and the current president are her main targets, she does not appear to have thought through the implications of such a wide-ranging attack on the country’s institutions.
It amounts in the first place to a repudiation of the history, legacy and foundational commitments of the ANC.
In 1946 Dr AB Xuma convened a conference at which the African Claims document was adopted. It contained a Bill of Rights modelled on the Atlantic Charter, which contained a clause “guaranteeing equal justice in the courts of law”. The 1949 Programme of Action was aimed at formulating actions to achieve the African Claims. The Freedom Charter, adopted in 1955 provided that “all shall be equal before the law” and “all shall enjoy equal human rights”.
And the Harare Declaration adopted in 1989, under the leadership of Oliver Tambo, president of the ANC, also committed the ANC to the “equal enjoyment of universal human rights” and to an “independent judiciary”.
The ANC’s constitutional proposals were formulated by its constitutional committee, led by Dr Zola Skweyiya and included Albie Sachs and Dullah Omar, the country’s first justice minister. Were Oliver Tambo, Zola Skweyiya and Dullah Omar “colonised Africans”?
Ms Sisulu’s diatribe also constitutes an indictment of the entire leadership of the ANC, and of the ANC itself as the governing party for the past 25 years as well as every black judge and every member of the ANC who participated in the constitutional negotiations or was elected to the constituent assembly, or who has held public office in terms of the Constitution. All stand accused of having become “black assets of colonial capital”.
Spicy anti-ANC rhetoric by someone who evidently seeks to become the president of the ANC!
Since she was a member of the constituent assembly and has been in the leadership of the governing party and government for much of this time, without once articulating these views on the Constitution, her decision to do so now has all the hallmarks of a convenient subterfuge, invented for the sole purpose of providing her presidential ambitions with an intellectual gloss.
Though incoherent, cynical and contradictory, this attack on the rule of law and the Constitution by a person campaigning to become the president of the ANC and possibly the country, and who has called for the “justice system to be overhauled”, must be taken seriously, and vigorously opposed. Without vigilance, we might wake up in another country.
The rule of law has come under attack in many countries in recent times, including ones with apparently stable democratic institutions as they have become more unequal and lurched towards authoritarianism. The most instructive, but by no means only example, is the US with a 200-year-old Constitution. Donald Trump refused to accept rule of law constraints on presidential power under their system of “checks and balances”, refused to accept the electoral outcome, and incited his supporters to attack Congress while sitting to certify the election result.
One lives in a fool’s paradise if one does not hear echoes of Trumpism in the rhetoric and conduct of certain political forces in South Africa who have already attempted “mini insurrections” against our democratic institutions by destroying infrastructure, sowing chaos, mayhem and social discord. They, like Trump, are intent on polarising the South African people on the basis of fixed racial identities and attributions of blame.
Ms Sisulu has just added an attack on basic democratic norms to the decrepit, threadbare ideological construct of “White Monopoly Capital”, invented by a British consultancy, Bell Pottinger. So join the dots. This kind of populist rhetoric often provides a mask for a self-interested agenda of plutocratic capture, enrichment and the pursuit of absolute and unaccountable power.
It is no accident that Sisulu has penned her attack on the rule of law, the Constitution and the judiciary after the publication of the first report of the Zondo Commission on State Capture. After all, some of the dramatis personae against whom the evidence is piling up as part of a public record are her friends, allies and supporters whose malfeasance she has not once condemned. Their conduct raises serious issues of individual moral and legal culpability.
But, more crucially, “State Capture” represents a fundamental threat to the constitutional order and the basic commitment to democratic self- government by the people through their elected representatives.
The former president handed over his powers to appoint Cabinet ministers and other senior officials in “the top echelons” to a private family and business partners to enable the capture of the state’s revenue collection agency, its Treasury, its agencies for the investigation and prosecution of crime, and its SOEs. These institutions are critical to the country’s project of development.
This was done for purposes of self-enrichment and private wealth accumulation, imperilling the basic promise of a functioning democracy in which the “people shall govern” and their elected representatives shall always act faithfully on their behalf and in their interests.
We are fortunate to have had some recourse to the judiciary to defend our democratic institutions in the face of egregious misconduct by self-serving politicians. Can there still be any doubt that upholding the rule of law in order to constrain the abuse of political power is essential to democratic self-government?
I don’t know if Albie Sachs is a “colonised African”, according to Ms Sisulu, since he is white and so perhaps can still be quoted with authority. But the formidable Justice Raymond Zondo definitely qualifies for personal abuse it seems, since he has had to investigate the entrails of political corruption and grand larceny. And what about the brilliant Justice Moseneke? Is he a colonised African? A house n****r?
In 1849 Karl Marx wrote in the 18th Brumaire concerning the attempt by the parliamentary leader of the Democratic Socialist Party to initiate impeachment proceedings against Bonaparte for violating the French Revolutionary constitution, that Bonaparte “violates everything that seems inviolable… strips the halo from the political machine, profaning it and seeming to make it both disgusting and ridiculous”. That is what “State Capture” has done to South Africa’s constitutional democracy, without demur from Ms Sisulu. She now attacks the judiciary and the rule of law as the source of all our problems. It is, rather, a means of constitutional defence against corrupt abuses of power.
What does the principle of the rule of law require and why is it more important than ever that it should be defended today?
First, in its most formal sense, it requires that the rules apply to us all equally and that when exercising a power or discretion, an authorised decision-maker does not act arbitrarily and for ulterior purposes. So, the same rules apply for a Boris, Novak, Sisulu, Zuma and Ramaphosa. This is a basic requirement of constitutional justice, an “unqualified good”, in the memorable phrase of the Marxist historian EP Thompson.
Our Constitution, based on our own historical experiences and traditions, incorporates a more demanding version as a founding provision, requiring that administrators and politicians also act reasonably, in a way that is procedurally fair, and have proper regard to the rights of recipients of government benefits and services. The Constitution also requires that these rules of fair decision-making are enforced by independent courts which have the responsibility of ensuring that these constitutional standards are upheld. Furthermore, an aggrieved party has recourse to two higher courts of appeal composed of a quorum of judges.
Sisulu, in a departure from the ANC’s universalist commitments, claims and objects that the rule of law has “foreign” origins and is therefore culturally alien. I assume this is on the basis that the rule of law is borrowed from the work of the 17th-century English philosopher of liberalism, John Locke.
Apart from the fact that understandings of the rule of law have evolved since then and that the Lockean version is not the one instantiated in the text of the South African Constitution, this does not in itself provide a basis for a persuasive objection. It can also easily be shown through historical inquiry that a version of the idea that political authority should be subject to legal constraints can be found in all epochs, civilisations and geographies before the colonial era. The idea of the rule of law has also been embraced in many progressive political ideologies, including socialism and anti-colonial nationalism, as the history of the ANC shows.
If any doubts are still entertained about the contemporary importance of the legal principle of the rule of law in South Africa, all we have to do is to consult our own experience under apartheid, and especially over the past 25 years after the adoption of the Constitution. Anyone who has experienced unequal and demeaning treatment or arbitrary power through forced removals, detention without trial, torture, banning orders for resistance to apartheid and denial of basic human rights without effective recourse to the courts, knows the value of the rule of law.
We did not have to consult “foreigners” to understand the value of the rule of law. We have had our own experiences, political principles, eminent jurists (her “mentally colonised Africans”), and leaders to advise us when drafting the Constitution to constitutionalise the rule of law principle and thereby to place it beyond the reach of the calculations of self-interested politicians with short-term time horizons.
The courts, properly empowered under the Constitution by the principle of the rule of law and the Bill of Rights have been able to rely on the Constitution to ensure that pensioners are paid, child support grants are properly administered and provided under the law, affirm that failure by government departments to provide proper sanitation in schools is unlawful, that the Constitution requires anti-retroviral treatment to be accessible to those suffering with HIV and Aids, and that the Constitution protects the homeless against unconscionable evictions.
Often they have had to do more than courts are ordinarily required to do where there is a “capable state” in order to compensate for the deficiencies that arise from neglectful, incompetent and corrupt administrators and their political overseers. The idea that the Constitution and the judiciary are to blame for deficiencies in service delivery is therefore without merit, and is nothing less than a diversionary tactic. Courts have provided some relief in circumstances such as these, but they are not set up to solve service delivery challenges since this falls outside their remit.
Sisulu also says the courts “have done little to change anything”. She blames the Constitution for continuing socioeconomic problems, like income and wealth inequality, poverty and unemployment. This is to make what I once heard Justice Dikgang Moseneke correctly characterise as a basic “category mistake”.
Constitutional texts, even progressive ones such as ours, do not solve socioeconomic problems. They create frameworks for collective action and policy-making by elected officials and administrators. This is why we have to ensure that our democratic institutions are not captured.
As part of her presidential campaign, one would have thought that Sisulu would share at least some ideas about how she would tackle the country’s various socioeconomic crises. There is in fact an urgent need for rethinking many of the policy prescriptions about economic policy and management that were once considered sacrosanct in the light of the impact of the 2008 financial crises and of Covid-19. Instead, she indulges in evasion and obfuscation.
How prescient in retrospect has the decision been to place the authority of the Constitution and the powers of the judiciary beyond doubt? Have we not learnt from our own experience that all power is indeed corruptible, and therefore that all claims to legally unlimited power based on an assertion of permanent virtue should be treated with extreme suspicion?
Constitutions are required to “both express and tame power” and are based not only on trust but on “distrust, and not just of the other side, but of ourselves”, as Justice Albie Sachs observed in an inaugural lecture at UCT in 1992.
I don’t know if he is a “colonised African”, according to Ms Sisulu, since he is white and so perhaps can still be quoted with authority. But the formidable Justice Raymond Zondo definitely qualifies for personal abuse it seems, since he has had to investigate the entrails of political corruption and grand larceny. And what about the brilliant Justice Moseneke? Is he a colonised African? A house n****r?
I am sickened to the core at having to respond to such debased, deeply offensive vitriol, pretending to be a political argument by a person with presidential ambitions who comes from the ranks of the liberation movement and who has such an illustrious family name. But, unfortunately, these are the times we live in.
At least we now know that familial pedigree does not provide a guarantee of probity, political acuity or wisdom. DM