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The pandemic of impunity has become democracy’s crisi...

Defend Truth

Opinionista

The pandemic of impunity has become democracy’s crisis

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Judith February is executive officer: Freedom Under Law. She writes in her personal capacity.

Impunity has become almost commonplace. The culture of impunity thrives on opportunistic illogic, like swimming pools being turned into fire pools. 

In October 2021, before Russia’s invasion of Ukraine, the CEO of International Rescue and former British foreign secretary David Miliband wrote:

“The changing balance of economic and political power in the world is geographic – with a shift from west to east – but it is also ideological.  There are two components to this ideological turning of the tide: first, authoritarianism is on the rise and democracy in retreat, and second, assertions of national sovereignty are increasingly challenging international law… The Varieties of Democracy project at the University of Gothenburg says we are living through a ‘third wave of autocratisation’…

“John Ikenberry, a professor in politics and international affairs at Princeton University, has made a compelling argument that the building of the international rules-based order after 1945 was conceived as a bulwark against democratic erosion. So today, what is called ‘democratic recession’ undermines international law and institutions, and the retreat from the principles and ideals of a rules-based order undermines democratic arrangements at home.”

Miliband goes on to write eloquently of a “pandemic of impunity”.

It is a useful phrase for a post-Covid time (inasmuch as one can speak of “post-Covid”) – this pandemic of impunity has become democracy’s crisis.

Miliband’s words are also a timely reminder of democratic regression and the global shift to authoritarianism. South Africa, with its high levels of inequality, an unemployment rate of 34.5%, rising inflation, a worsening electricity crisis, collapsing infrastructure and a state hardly equipped to deal with the complexities of climate change, is ripe for all manner of despots and false prophets.

The government, its processes choked by red tape, corruption and sloth, lacks the ability to nimbly work its way through crises. Ours is a deeply unstable country also at a particularly precarious political moment, the endpoint of which is anything but clear, no matter who wins the internal ANC elections in December.

South Africa is therefore not immune to these anti-democratic forces as we know only too well from the failed insurrection of July last year. Despite the week of chaos, violence and looting, no one has been meaningfully held to account. Our Parliament was razed and yet we can go no further than charging a mentally ill man for this act. 

Impunity has become almost commonplace. We see this in former president Jacob Zuma’s disdain for the courts, his lawyers using every strategy so he avoids accountability for his acts of corruption.

We see it in the Minister of Tourism Lindiwe Sisulu, who openly defies the president in her attacks on the Constitution.

And we see it in the likes of the advocate in the Senzo Meyiwa trial, Malesela Teffo, who is comfortable enough to use expletives in the courtroom. After all, Dali Mpofu told his colleague to “shut up” yet the Legal Practice Council cleared him of misconduct on the basis that the words were not insulting in isiXhosa and no one in Mpofu’s village in the Eastern Cape would have been offended. Except, of course, that Mpofu made these comments to his colleague at the State Capture Commission not in an Eastern Cape village, and the proceedings were conducted in English.

But the culture of impunity thrives on opportunistic illogic, like swimming pools being turned into fire pools. 

The past weeks in South Africa can only be described as a conflagration of events, or William Butler Yeats’s ever-widening gyre. The Ramaphosa presidency is itself in the midst of the great unravelling. As the country was plunged in darkness, Ramaphosa himself was jetting off to the G7 leaders’ summit glad-handing Boris Johnson whose own days were by then numbered.

But we are now well-acquainted with the Ramaphosa disconnect. On 11 July Ramaphosa told us that he “regretted” the stage 6 rolling blackouts and that a plan would be forthcoming in the coming days. At the time of writing there has been nothing, apart from murmurs of a second Eskom. That idea is simply laughable. This is a state, gutted by State Capture, which has difficulty delivering basic services and one in which the Minister of Water and Sanitation, Senzo Mchunu, appears alongside Eastern Cape Premier Oscar Mabuyane and Nelson Mandela Bay Metro Mayor Eugene Johnson at the Elizabeth Donkin Hospital where NGO Gift of the Givers has installed a borehole. That province went sleep-walking into its water crisis.

No one trusts the state to do much anymore and increasingly, few trust Ramaphosa. When former director-general of the State Security Agency (SSA), the notorious Arthur Fraser, laid a criminal complaint against Ramaphosa in June, the Pandora’s box was opened. The story is now well-known and relates to a robbery at the president’s Phala Phala farm in Limpopo in 2020. Ramaphosa and those affiliated to his “faction’’ within the ANC immediately cried foul. Weeks later and the questions persist. Ramaphosa will need more than his trademark chuckle to get out of this one.

In the deepest of ironies, the president’s fate seems bound to that of beleaguered Public Protector Busisiwe Mkhwebane. Mkhwebane’s impeachment process is currently under way in Parliament. The significance of this impeachment should not be lost on us. For it is the first time that the head of a Chapter 9 institution, one set apart to protect the integrity of our constitutional democracy, is impeached.

Mkhwebane has repeatedly inserted herself into the factional politics of the ANC and has squandered public money in pursuit of political checkmates. That she is represented by the disgraceful show pony Dali Mpofu is probably appropriate.

Yet, while Ramaphosa did the right thing by suspending Mkhwebane, he himself is now under scrutiny after a complaint was laid against him for breach of the Executive Members’ Ethics Act and the Executive Ethics Code in relation to the Phala Phala matter.

Section 96 of the Constitution demands that members of the Cabinet act in accordance with a code of ethics set out by the act. As the president is the head of the Cabinet, he is also bound by the act and the code. However, it has long since been pointed out that the act and code require amendment as the act is silent about what should happen when the president is the subject of a complaint.

In Public Protector v President of the Republic of South Africa the Constitutional Court  said that the “[Executive Members’] Act does not cater for action to be taken against the president where he or she is responsible for violating the code”. The court’s view was that breaches by the president should be referred to the National Assembly, since the Constitution already empowers Parliament to act against the president in certain circumstances.

As it happens, Democratic Alliance leader John Steenhuisen requested that Parliament establish an ad hoc committee to deal with the allegations against Ramaphosa, but the Speaker of Parliament, Nosiviwe Mapisa-Nqakula has declined to do so, perhaps unsurprisingly. The Speaker herself operates under a cloud of corruption allegations.

Mkhwebane put 31 questions to the president relating to the matter in June. After the threat of a subpoena, Ramaphosa has finally submitted written answers to those questions. Ramaphosa has said he will not speak publicly about the allegations and has retreated into his well-known “following due process” line when asked about the robbery.

He has also said that he will “step aside” if required to and is entrusting the independent law enforcement agencies and institutions to investigate. “Step aside” is an internal ANC policy and has nothing to do with the constitutional removal of a president as set out in section 89 of the Constitution. Ramaphosa will also appear before the ANC’s integrity commission again reaffirming Ramaphosa’s instinct to account to the party first ahead of the country.

Speaking at Jessie Duarte’s funeral, former president Thabo Mbeki bemoaned Ramaphosa’s failure to forge the social compact he promised. But the hallmark of the Ramaphosa presidency has been the abject failure to draw South Africans into his vision and widen the embrace. Instead, he has obsessed only about internal party dynamics to the detriment of all else.

Daily we are coming to understand that “we are the ones we’ve been waiting for” and that the ANC and Ramaphosa will spend the next months crassly contesting for party positions, which will have nothing to do with the country’s needs.  

With the Phala Phala allegations swirling around him, Ramaphosa will be even more beholden to the corrupt and venal ANC should he win a second term as party president. In that case, the Ramaphosa presidency will continue in its insipid fashion, unable to take the bold decisions needed for our country to thrive, the president always looking over his shoulder for the knives in his back.  

Quite where the Public Protector investigation will lead is hard to tell. Contesting power within the party is one piece of the jigsaw, contesting the next general election in 2024, quite another. Between now and then anything is possible. The crown rests uneasily on Ramaphosa’s head and he will know it.

While the Public Protector’s impeachment hearing continues, it is also worth noting that the JSC will meet on Monday, 25 July 2022 to discuss the possible suspension of Western Cape Judge President John Hlophe.

These matters may appear unrelated but they really are all part of the same playbook used by those like Mkhwebane and Hlophe who are determined to undermine and ultimately destroy democratic institutions in the service of a corrupt project. It is 14 years since Judge Hlophe lobbied two justices of the Constitutional Court in favour of Zuma.

The JSC meeting comes more than a year after the Judicial Conduct Tribunal found Hlophe guilty of gross misconduct as set out in s177 (1) (a) of the Constitution and nearly a year since the JSC confirmed that finding. Despite the finding of gross misconduct against Hlophe, he remains in his position. This is a clearly untenable situation.

The JSC surely cannot, in good conscience, condone the retention in office of a judge it has found guilty of gross misconduct. Doing so would undermine the trust ordinary citizens place in the courts, at a time when the integrity of the judiciary is under renewed attack. 

At a time of global democratic regression and impunity, those who lead democratic institutions need to be clear-eyed about what the Constitution demands. That applies to Parliament as it considers the impeachment of the Public Protector, to the JSC considering the recommendation to suspend Hlophe and of course to the president who now, unhappily, is the subject of a complex investigation. DM

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