Paul Hoffman revisits the separation that should exist between party and state. The cadre deployment made blatantly evident during testimony at the State Capture Commission creates a detrimental flaw in the way in which government is perceived and how it functions. This flaw has allowed the rot of State Capture and corruption to continue its spread, driven by the ruling party’s desire for ultimate control over all organs of state. The blurred lines between the ruling ANC and the power and responsibilities of the state mean that civil servants need to be reminded that they are beholden to the country and should be guided by the Constitution, which requires that civil servants put their country before any political allegiance. “Those who lead the ANC cannot say that they weren’t warned in 2010 when Zuma’s project was in its infancy,” writes Hoffman. – Melani Nathan
The difference between party and state revisited
By Paul Hoffman*
The evidence on behalf of the ANC placed before the State Capture Commission by its Chairman, Gwede Mantashe, draws attention to the differences between party and state as well as to the attitude of the governing alliance toward these differences. Cadre deployment, whether dressed up as ‘cadre policy’ or ‘deployment practices’ is at the root of the capture of the state. What Mantashe described as a “recipe for disaster” in January 2010, shortly after the first Zuma administration started to flex its muscles, has turned into the disaster he foresaw. Accountability Now has warned of the need to avert this disaster as long ago as January 2010. There is a wealth of material on its website which can be accessed by typing the words “party and state” into the internal search facility on its home page. The disaster is viewed from the perspective of service delivery in a submission made in January 2010 to an ad hoc committee of parliament and as a human resource management issue too.
It needs to be noted that cadre deployment is a manifestation of the striving for hegemonic control of the levers of power in society which is a Lenin inspired communist idea for dealing with the ‘colonialism of a special kind’ that is perceived by communists to be the order of the day in SA, if not now, then certainly during the pre-constitutional era. The intricacies of the inconsistencies this approach has to the constitutional order have been examined previously.
It is timely and instructive to reflect upon the January 2010 comments on the concerns Mantashe expressed then, in the light of the developments that have occurred since the essay “The difference between party and state” first appeared.
Gwede Mantashe’s concerns about our ‘governance model’ in which directors-general serve ‘at the mercy of ministers’ are timely and open a necessary debate. As Chair of the SACP and Secretary-General of the ANC, he is well placed to ensure that the ‘recipe for disaster’ he correctly perceives is averted.
In South Africa’s post-1994 constitutional democracy the ANC-dominated tripartite alliance has consistently been the governing majority in parliament. At present, the ANC, SACP, and COSATU co-operate closely, albeit somewhat fractiously.
Currently, the national parliament is overwhelmingly (65,8%) composed of members of the tripartite alliance. All provinces except the Western Cape, most towns, and all but one city (Cape Town) are governed by this dominant alliance. One of the unfortunate by-products of this dominance is that the distinction between party and state, one vital to the proper functioning of all constitutional democracies, tends to become blurred in popular perceptions.
The ‘ANC government’ is incorrectly perceived to be the source of state power in this misconceived view. The true source of state power is, of course, the Constitution. However, it is easy to see how the mistake can be made when the ubiquitous role of the ANC alliance in the affairs of the land is examined. Many senior civil servants are overtly members of the ANC and help keep its structures in place by running branches and canvassing support for ANC policies in their spare time. One director general, Jimmy Manyi, even heads a lobby group, without due regard for the conflict of interests this involves.
The blurring of the bright lines between party and state through public service ‘cadre deployment’, which the High Court has struck down as illegal, has prejudicial consequences for the promotion of truly democratic values. All South Africans, united in their diversity, ought to owe their first allegiance to their country and only thereafter to the political formations they favour from time to time. This broad South Africanism is difficult to promote after the long years of the struggle in which many developed an abiding loyalty to their party/movement. It is nevertheless imperative to move on and cultivate universal fealty to the country and greater tolerance of its diversity. This involves embedding a broad-based national consciousness in the public administration and the population, as portrayed in the Invictus movie.
William Gumede, a learned analyst, has pleaded publicly for the modernisation or adaptation of the ANC’s cadre deployment system, suggesting that our new Planning Commission will fail if this is not done.
The shared vision of a common destiny is clearly reflected in the Constitution. A founding notion is that all citizens, irrespective of their party political allegiance, are equally entitled to the rights, privileges, and benefits of citizenship, its duties, and its responsibilities [s 3]. All public representatives from all of the political parties are constitutionally required to swear or affirm their identical faithfulness to the Republic and their obedience to the Constitution [schedule 2]. Those who put party before state need to be reminded of this.
There are three main power bases in our new constitutional order: two, the executive and the legislature, are party political, whilst the judiciary is an independent and impartial branch of government that dispenses justice without fear, favour, or prejudice.
The legislature by its very nature is composed of all political parties which garner sufficient votes to be represented in parliament. The state itself is subject to the rule of law [ss 1 and 2], it is bound by the Constitution and must respect, protect, promote, and fulfil the human rights guaranteed in the Bill of Rights [s 7]. The state is also bound by court orders applicable to it [s 165]. There is a separation of powers between these three branches of government. The judiciary is manifestly not the ANC’s judiciary, as the country’s judiciary is beholden only to the law and the Constitution [s 165]. The members of the legislature are elected by voters; the national cabinet, the top body in the executive, is appointed by our parliament-elected President [s 91] but is accountable to parliament, which includes opposition parties [s 92]. Checks and balances on the exercise of power are built into the system.
The public administration provided for in the Constitution should exist to render services to all people in a manner that is impartial, fair, equitable, and without bias. [s 195]. It must loyally execute the lawful policies of the government of the day [s 197]. Everybody, including directors-general, is entitled to fair labour practices [s 23]. Good human resource management and career development practices must be cultivated for public servants [s 195]. These are the antithesis of the ANC’s cadre deployment model of governance which is inconsistent with binding constitutional principles and has prompted Mantashe’s warning.
Further institutions, created to strengthen our democracy, are supposed to be independent and impartial. They are constitutionally enjoined to act without fear, favour, or prejudice. [s 181] . Important among them are the Human Rights Commission and the Public Protector. The judicature is also constitutionally an independent seat of prosecutorial power [s 179].
It is up to the public of South Africa to claim its entitlement to an accountable government in which constitutionally guaranteed human and other rights are upheld. A sound constitution is a useless piece of paper unless it is fully applied in the daily lives of all of the people and institutions bound by it.
At the root of many of the problems facing our country at present is a lack of appreciation of the difference between party and state. The constitutionally compliant exercise of powers of the public administration ought to be aimed at improving the lot of all people.
We need to put accountability and responsiveness to the needs of all people first in the debate on our ‘governance model’. If we have proper respect for the constitutional framework outlined above, the outcome of the debate opened by Mantashe could promote effective and efficient service delivery by the public administration. Mantashe will be remembered as a fine patriot, a superb administrator, and a thoroughly innovative communist. The carbuncle that is cadre deployment will be excised and our land will flourish with good cadres taking their rightful place alongside colleagues, also appointed on merit, to serve the public accountably.
Those who lead the ANC cannot say that they weren’t warned in 2010 when Zuma’s project was in its infancy. The State Capture Commission would do well to recommend the abolition of cadre deployment in the public administration and in state-owned enterprises. The official opposition has already presented a basis for the possibly necessary legislation to parliament. The courts have regarded cadre deployment in the public administration as illegal and unconstitutional since the Amathole District Municipality case to which reference was made during the interrogation of Mantashe by Alec Freund SC before the State Capture Commission. Those who govern are bound by the findings in that case, findings that were never appealed.
- Paul Hoffman SC is a director of Accountability Now.