The ANC National Executive Committee (NEC) meeting in late August aimed to discuss matters relating to corruption-charges against several of its members. President Cyril Ramaphosa played his cards well and survived an outright attempt to unseat him as leader of the ruling party. In this thought-provoking piece, Advocate Paul Hoffman looks at what happened over the three-day meeting, setting out a comparison between two factions that are currently vying for control of the ANC. According to Hoffman, bubbling under the surface is a showdown between those who uphold the Constitution, and those in the ANC National Democratic Revolution (NDR) camp. – Claire Badenhorst
The twitching ears of the ANC hippo
By Paul Hoffman*
Icebergs do not feature in Africa. When Westerners refer metaphorically to “the tip of the iceberg” the allusion is one meaning that what you see is minute when compared to what lies below the surface. The African version of the metaphor is “the ears of the hippo”: when it lies submerged in a murky river pool, with its huge bulk lurking beneath the surface, it reveals little in relation to its next move, with only the ears visible.
The unusual two-hour-long media conference of the National Executive Committee (NEC) of the ANC held on Monday 31 August 2020 may have revealed the ears of the hippo in the titanic struggle for control of the ANC. Characterising what still lies submerged and out of the public gaze is no easy task, but it is one that is worthwhile.
Oscar van Heerden, a leading and learned apologist for the ANC, regards himself as a “battered wife” of the ANC. He sees a struggle between what he calls revolutionaries led by the president and opportunists led by ANC Secretary General Ace Magashule. He waxes lyrical comparing the events of the weekend preceding the media conference to the writings of Lenin around the capture of the Russian revolution by the Bolsheviks. He does so without mentioning how the Russian revolution ended in 1989 after much slaughter, human misery and Stalinism.
Karima Brown, a senior journalist and commentator, sees it differently. She characterises the president as a constitutionalist while the forces within the ANC ranged against him are those “revolutionaries” who put the ANC ahead of any constitutional obligations and responsibilities they have both as citizens and as public representatives. The refrain, familiar in the Zuma years, that the ANC comes first and that there would be no country without the ANC, is still used by the opponents of the attempts by the president and his allies to clean up the act of the ANC.
The president wishes to restore its integrity as an organisation and to purge those whose activities may possibly bring the organisation into disrepute in the eyes of the public due to immoral and unethical conduct on their part. Those convicted of crimes or facing criminal charges are but a small component of this cohort of the ANC.
The differences between those who put the national Constitution first in their dealings on behalf of the ANC and those who do not are deep and wide. There is a struggle for the soul of the ANC in progress. Those still attached to the precepts of the National Democratic Revolution (NDR) more than a quarter of a century after coming into power see the Constitution as a beach-head on the path of their revolution. Those who regard the Constitution as supreme and seek to implement it are on a different and totally incompatible trajectory. The president has very clearly nailed his colours to the constitutionalist mast.
The one ear on display by the hippo screams “Hegemonic control of all levers of power in society”; the other cries aloud “constitutionalism and the rule of law are supreme”. As the separation of powers, the independence of the judiciary, the NPA and the Chapter Nine institutions and the notion of checks and balances on the exercise of power form essential elements of constitutionalism, it can been seen that the differences are irreconcilable. The ANC’s hidden and submerged body is either going to identify with the one or the other; it cannot continue to be both without breaking itself on its internal contradictions.
Those rooting for the Constitution and the rule of law will have drawn some encouragement from the lead taken by the president, from his outmanoeuvring of the forces ranged against him in the ANC (with Jacob Zuma, Tony Yengeni and Andile Lungile raising their voices against him in public) and from the acquiescence of the NEC in the line he has taken on getting the ANC to clean up its act.
Read also: The NPA is unfit for purpose. Let’s start again – Paul Hoffman
NDR vs Constitutionalists
It is worthwhile to consider, on the basis of what has transpired under ANC governance, the differences between the trajectories of the two camps in the ANC.
In what follows, the two are distinguished by placing the stance of the one pro NDR faction in italics and the other constitutionalist faction in ordinary print.
The ANC NDR is predicated on the tyranny of the majority, a dictatorship of ‘the people’ and the (false) notion that the majority has more rights than the minority, as President Jacob Zuma openly explained in parliament to Member of Parliament Lindiwe Mazibuko in 2012, when she was Leader of the Opposition.
The doctrine of the separation of powers between the three spheres of government, executive, legislature and judiciary, is central to our constitutional dispensation.
The concentration of political and economic power in the party is the fundamental goal of the ANC NDR. The revolutionary ANC strives for “hegemonic control of all the levers of power in society”, the antithesis of the separation of powers in the hands of three co-equal branches of government subject to the Constitution, the rule of law and genuine political accountability.
A secure, impartial and independent judiciary that is answerable only to the law and the Constitution is fundamental in any constitutional democracy. This structure is necessary because the judiciary is empowered to rule on the consistency of laws and conduct with the Constitution. It may strike down as invalid any law or governmental act that is inconsistent with the Constitution.
A tame collection of judicial apparatchiks, loyal to the revolutionary agenda, is what revolutionaries require for the judiciary. Luthuli House revolutionaries rail against the “counter-revolutionary judges” who thwart their plans and programs by striking them down as unconstitutional. They prefer that judges embrace the values of the ANC NDR unquestioningly, and look forward to the day when all South African judges regard themselves as loyal deployed ANC cadres of the revolution — as currently do some judges and some ANC Members of Parliament, Directors General and officers of state-owned enterprises (SOEs) such as the Electricity Supply Commission, South African Airways, South African Railways, the South African Broadcasting Corporation (SABC), and perhaps, most disturbingly, many of the leadership and officers of the South African National Defence Force and the South Africa Police Service.
Six specialised “Chapter Nine Institutions” were established in accordance with the design of that chapter of the Constitution, to implement and maintain constitutional democracy in South Africa. They are required to function without fear, favour or prejudice to support and strengthen constitutionalism in the new South Africa. Chapter Nine institutions are the Public Protector, the Commission for Gender Equality, the Commission for the promotion and protection of the rights of cultural, religious and linguistic communities, the Electoral Commission, the South African Human Rights Commission, and the Auditor General. The framers of the South African transition to a non-racial constitutional democracy were determined that in addition to three co-equal branches of government under the rule of law, six additional strong constitutionalised institutions were essential to provide fulsome protection for the post-apartheid public interest. Unfortunately they omitted to include an anti-corruption body, but moves are now afoot to do so in order to implement an urgent resolution of the NEC under the influence of the president.
The Zuma ANC has deployed its most loyal revolutionary cadres under the ANC NDR in most of the Chapter Nine Institutions to do the bidding of Luthuli House without regard for the Constitution and with an eye on the unfolding and entrenchment of the NDR revolutionary agenda. At this time, the incumbent Public Protector Busisiwe Mkhwebane faces suspension, impeachment, disbarment from the legal profession, criminal charges and a parliamentary investigation into her maladministration of her own office, and has been found to have perjured herself before the apex Constitutional Court and other high courts.
The Constitution peremptorily requires the appointment of public servants who are ethical, unbiased, fair and equitable in their work. They must objectively deliver services to the public and faithfully carry out the lawful policies of the government of the day.
The ANC NDR faction actively deploys its revolutionary cadres in the public administration, without regard to the merit of non-cadres. This “cadre deployment” is done to secure hegemonic control of the executive, public administration, SOEs and other institutions. The conflicts of interest that this system sets up undermine good governance and effective service delivery.
Unsuitable cadres, at best, have consultants appointed to do their work while they sleep at their desks, dreaming of the revolutionary utopia; at worst, they have been central players in state capture, grand corruption and the massive plunder of public funds and assets.
The unconstitutionality of cadre deployment in the public administration and the state-owned enterprises does not deter Luthuli House from “recommending” (and effectively thus anointing) its favourites for national Cabinet and office at all other levels of the state.
The Constitution contemplates a multi-party democracy in which the economy is of a mixed nature, with strong emphasis on social democracy in the form of a state which “must respect, protect, promote and fulfil” the fundamental political, social and economic rights guaranteed to all in the Bill of Rights – surely pressing business after decades of institutionalised apartheid oppression and gross inequality based outright on race.
The ANC NDR aims to establish an order in which the dominant political party asserts its hegemony; the party and state collapse into one; and a pure socialist revolutionary nirvana emerges in a manner not beneficially established anywhere in the world in any country in which it has been attempted. Nkosazana Dlamini-Zuma, who narrowly lost the leadership race in the ANC, even publicly ruminates on “class suicide” as a possible response to the pandemic.
Open, accountable and responsive governance are required by constitutionalism, and these values are basic requirements for governance and democracy in the new South Africa.
The ANC NDR is pursued in secret behind the closed doors of Luthuli House, where opacity, duplicity, “dexterity in tact” depending on “the balance of forces”, and a complete lack of accountability to the people and the Constitution are hallmarks of its openly revolutionary modus operandi. If there is any accountability at all it is solely to Luthuli House and not to the Constitution. There is little responsiveness to the needs of the people as can been seen from the disastrous state of service delivery in education, healthcare, housing, water, sanitation and security by both the police service and defence force. Brutality and murder mark their respective responses to the pandemic.
The 2012 police massacre of 34 of mine-workers at Marikana; sprawling nation-wide impoverished “informal settlements” consisting of shacks with few basic amenities; the Life Esidimeni deaths of over 140 mental patients in 2016 who were uncared for and essentially died of neglect; massive, rampant and unchecked corruption at the highest levels of government and business; “state capture” in which even appointments of national Cabinet Ministers were determined and dictated by a corrupt cabal of foreign-born businesspeople and unelected cronies; kleptocracy, gangsterism, taxi wars, unsafe trains and electricity shortages and black-outs; and the open personal sale by ANC-deployed SOE cadres of public assets such as portions of railway lines all characterize the ANC NDR.
Oversight of the activities of the executive by a Parliament willing to hold the elected and appointed accountable, and to hold their feet to the fire of fairness, impartiality, honesty, un-corruptibility and accountability is the way of the new Constitution. Performance is to be measured against the stated just precepts of the supreme law.
In effect, Parliament has been reduced to a meek rubber-stamp for the executive and Luthuli House; it is flaccid, ineffective and populated by loyal, compliant and often utterly incompetent ANC cadres, one of whom, for example, testified to the current Commission of Inquiry into State Capture, chaired by Deputy Chief Justice Zondo, that she thought “Gupta” (the family name of the notorious cabal of Indian-born brothers who led and benefited to the tune of stolen billions from “state capture” during the nine-year Zuma presidency) was an acronym not a surname.
Non-racialism and gender equality are foundational values of the new Constitution in force since February 1997.
Identity politics, traditionalism and tribalism, male patriarchy and divisive nationalism are all used and abused by the ANC and its NDR to promote its “hegemony over all levers of power” agendas; the LGBTQI+ community (and other still-marginalised and stigmatised groups) are involved in an ongoing struggle for recognition of their fundamental rights. Gender-based violence is rightly regarded as a pandemic in SA by the president.
The Constitution promises respect for human dignity, the promotion of the achievement of equality and the enjoyment of the rights and freedoms set out in the Bill of Rights.
Under the ANC NDR the country has actually seen an increase in human misery since 1994 due to structurally high unemployment, attributable in part to the un-employability of the uneducated unskilled youth, persistent grinding poverty and inefficiency in government. Incredibly, South Africa’s sky-high Gini co-efficient has risen, not fallen, due to the exacerbation of economic inequality after the end of apartheid during ANC NDR-inspired governance. The rural and urban poor remain as oppressed and impoverished as ever they were under apartheid.
Section 25 of the Constitution entrenches respect for property rights.
The ANC NDR is bent on confiscation of privately-owned land, the nationalisation of what it calls “the commanding heights of the economy” and the expropriation of property. The official ANC battle-cry, along with support from the improbably-named Economic Freedom Fighters led by the red-bereted Chavez-admiring “Commander in Chief” Julius Malema, is “Expropriation Without Compensation” (EWC) with an eye on illegitimately held (that is, foreign- and white-owned) assets being nationalised. Under the same thinking, calls have been emanating from the ANC for the nationalisation of the South African Reserve Bank, the nation’s central bank.
The inculcation of a culture of respect for fundamental human rights including political and socio-economic rights is a central aim of the new South African Constitution.
The march of the revolutionaries does not have regard to the niceties of a human rights culture. The ANC NDR must be advanced by all available means to secure the hegemonic control of all levers of power in society. Many ANC revolutionaries are at the heart of state capture. They see it as a way to advance the NDR — and themselves.
Numerous books written by investigative journalists and others, high court judgments and reports have been written about their nationally corrosive and debilitating exploits. But the limping criminal justice administration does nothing, mainly because it is significantly captured itself and is thus also a kleptocracy- and state capture-protecting lever of power in the hands of loyal ANC cadres.
Freedom of expression and free and independent media are guaranteed by the Bill of Rights. South Africa’s press is playing a key role in exposing state capture and grand corruption.
Some state capture and kleptocracy exposé journalists have been threatened. The SABC has been all but completely captured by ANC NDR cadres. The mooted establishment of a censorship body called the Media Appeals Tribunal, the formation of a propaganda arm for the ANC NDR via the launching of the New Age newspaper and the ANN7 television channel, both creatively funded with rigged tenders and the publicly-funded takeover of Independent Newspapers (now neither independent nor newspapers) mark the progress of the ANC NDR and the unlawful abuse of public funds to achieve its revolutionary ends. Mercifully, the ANN project came to a sticky end with the liquidation of its assets.
Read also: Paul Hoffman: Has ANC finally had its ‘Eureka!’ moment on corruption?
Access to information is a right guaranteed to all according to the Bill of Rights and the Promotion of Access to Information Act.
Instead, a far-reaching secrecy bill, surely inconsistent with the Constitution, has been rejected for signature by the President and has been referred back to Parliament by him for reconsideration and pruning of its unconstitutional features.
The notions of equality before the law and non-sexism, read with the provision in the Constitution that it trumps customary tribal laws that are inconsistent with it, ought to have been accompanied by an improvement in the lot of the rural poor living in the former apartheid “homelands”.
An unholy alliance between traditional leaders and tribal kings and the more opportunistic elements in the ANC NDR has spawned the Traditional Courts Bill and now the so-called “Bantustan Bills”. Woefully so, necessary genuine and equitable land reform has been hijacked and perverted by the ANC NDR.
The rule of law requires that there be independent legal professions which self-regulate.
The ANC NDR has secured the unconstitutional passage of the Legal Practice Act into law, depriving the legal professions of their independence, an essential bulwark of respect for and defence of the rule of law.
The Constitution promotes unity in diversity and contemplates affirmative action on the basis of disadvantage.
The ANC NDR prefers the introduction of race-based affirmative action measures, but these measures have left the truly disadvantaged no better off than they have always been.
Then-ANC Youth League President Julius Malema and now Commander of the Economic Freedom Front party were heard in 2010 to scream at BBC journalist Jonah Fisher: “Get out, bastard! This is a building of a revolutionary party and you know nothing about revolution so here you behave or else you jump,” he said at a media briefing at Luthuli House. So much for unity in diversity.
One could go on and on with such constitution-and-rule-of-law versus ANC NDR/state capture comparisons, unfortunately.
The twitching of the ears of the ANC hippo could still take it to the NDR bank of the river, but, the indications are that those who prefer to steer the ANC in a constitutionally sound direction have the upper hand.
Long may that last.
- Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.