It is respectfully recommended that FutureSA give its consideration to some urgent changes that are necessary to help the country out of the dire state into which it has fallen since 2009.
It is necessary, if SA is to recover swiftly from the evils of the recent past, to harness all the good energy, pragmatism and promise which FutureSA has put out on Daily Maverick on 14 February 2018. Not only harness, but also refine the sensible ideas on offer and the demands made so that the future of the country is better than its recent past.
The people of SA need to look with confidence towards a brighter tomorrow in which peace is secure, progress is sustainable and prosperity is shared. It is surely in this way that the travails, trials and tribulations of the Zuma years can be properly consigned to the dustbin of history with the minimum of delay.
Accountability Now was formed shortly before the first Zuma presidency began. A lot of the work it has done has been to ameliorate the excesses of the ANC administration under his leadership and to endeavour to keep the ship of state on the course of constitutionalism and the rule of law. It has not always been easy. Capture of a variety of state institutions, especially in the vital criminal justice administration, has bedevilled the exacting of accountability and the upholding of the rule of law during the tenure of the Zuma administration.
In the process, good lessons have been learnt and new insights have been achieved along the way.
There is no reason to doubt that FutureSA is committed to the supremacy of the Constitution and the rule of law. The founding values of our new order are openness, accountability and responsiveness in a multiparty democracy. One in which the respect for human dignity, the achievement of equality and the enjoyment of the rights and freedoms guaranteed to all in our state-of-the-art Bill of Rights are foundational to realising the goals of the non-racial, non-sexist new order.
Accordingly, when FutureSA, which is well-placed to do so, engages with the ANC regarding the way back from the dark days of the Zuma era, the primacy of the Constitution and its value system need to be the paramount considerations.
Unfortunately, due to historical considerations that are no longer relevant to planning a prosperous future, the ANC has not always embraced the value system of the Constitution with as much enthusiasm as its own “National Democratic Revolution” which is aimed at the creation of its hegemonic control of a national democratic society in which many of the values of the Constitution will be trampled into the dust.
The undeniable clout of the leaders and patrons of FutureSA should be brought to bear on the ANC to abandon the NDR as a programme that is appropriate to the aims of a modern post-revolutionary party which has been in government, usually as the governing party, since 1994. There is no need to pursue a revolutionary form of rule when it is possible, in a constitutionally compliant way, to steer law and policy in the direction of achieving any sound goals of governance. The governing party has it within its gift to so arrange the affairs of state to create a better life in a way that is envisaged by the Constitution. Essentially, this process involves governing according to the law, not ruling according to any passing whim.
These plain facts are not always well understood. The Constitution is seen as an encumbrance on revolutionary plans (it is) and is treated with scorn by officials and elected representatives alike.
In fact, the Constitution is the blueprint according to which the new order, the post-apartheid rainbow nation and now the dawning platinum age of jobs, equality and prosperity is brought into being through leadership with integrity and sustainable development that is consonant with the dignity, rights and freedoms of all.
The achievement of that elusive better life for all is possible via the implementation of the various demands formulated by the FutureSA team. However, it will not be easily achieved while adherence to the deeply, darkly unconstitutional aims of the NDR are allowed to inform the strategy and tactics of the ANC. The NDR is outdated, no longer doable and quite possibly the fundamental reason for the currently waning popularity of the ANC. Pursuing the NDR in the future could be the undoing of the ANC. FutureSA should campaign for the abandonment of the NDR. More pragmatic and problem-solving approaches are far more likely to get the country where FutureSA would like it to be than any pandering to the “isms” that inform the NDR ever will.
Somewhere near the heart of the rule of law is the notion of accountability. Any and all officials who are able to explain their decisions rationally and justify their actions reasonably are acting in accordance with the notion of accountability. Our public administration is required to regard accountability as a principle that is applicable to its activities and those of the State-owned Enterprises which are at the heart of rolling out the platinum-plated future that is possible if values are constitutionally aligned and those aspects of the NDR which are inconsistent with the Constitution are abandoned.
One of the greatest evils of the NDR has been the illegal and unconstitutional practice of cadre deployment in the public administration and State-owned Enterprises. The deployment of cadres should be confined to strictly political positions ranging from president to town councillor. A professional public administration built on sound human resource management and career development practices is what is both required by law and needed in reality if the public administration is to function effectively, efficiently and economically. Without that, the delivery of services will always be less than optimal and the conquering of widespread poverty which blights the land will continue to be delayed.
FutureSA is well placed to guide the debate that will make this sea-change possible. It is high time the ANC abandons the old Leninist ideas and re-invents itself as a modern political party, not a liberation movement that pits itself against revolutionary adversaries who either do not exist or who have to be creatively invented by the likes of Bell Pottinger. If this brings about the end of the tripartite alliance, then so be it.
On a practical level, it is respectfully recommended that FutureSA give its consideration to some urgent changes that are necessary to help the country out of the dire state into which it has fallen since 2009.
The accountability of politicians to people is at the centre of many of the ailments that currently infest the public space. Too many politicians regard themselves as no more than loyal deployees of their parties, not as democratically elected representatives of the people. The Freedom Charter’s opening words, “The People shall Govern”, are not going to become the lived reality of the new SA while the across-the-board proportional representation system in national and provincial politics is allowed to continue. The system itself attracts the wrong kind of people into politics; those who, instead of serving the people, are bent on self-enrichment.
There is no need to re-invent the wheel nor to reform the Constitution to address this evil. The Van Zyl Slabbert Commission report has been gathering dust during the Zuma years; it should be looked at afresh and perhaps refreshed with a view to introducing the type of electoral system that has served the German people so well since World War II. This reform can be done by way of ordinary legislation, once the necessary political will to do so is generated. FutureSA has an important mobilising role to play in this regard. The dilution of the proportional representation system in place will be good for democracy in SA.
Second, the over-concentration of power in the hands of the president of the country needs to be addressed in the interests of greater accountability. Former Deputy Chief Justice Dikgang Moseneke earned the ire of the Zuma-ites for making this self-evident point. It is beyond doubt that the constitutional design was crafted with a Mandela presidency in mind, not a Zuma two-term presidency. It is the power to make senior appointments in the state that needs to be revisited in the light of the conditions on the ground. All too often a fairly unfettered discretion is given to the presidency; this cannot be allowed to continue, irrespective of the identity of the occupant of the west wing at the Union Buildings.
The establishment of a “Senior Appointment and Dis-appointments Commission” is what is needed. Functioning along the lines of the Judicial Service Commission and populated by the great and the good, this commission could be the panacea to the problems that flow from the likes of Menzi Simelane as NDPP, Berning Ntlemeza as head of the Hawks and innumerable National Commissioners of Police all of whom have turned out not to be fit for the offices that Zuma appointed them to occupy.
This new commission could incorporate the JSC and needs to be free of politicians. Instead, retired judges, civil society leaders, faith-based, business and union representatives could populate its selection panels of those best placed to appoint functionaries worthy of the task entrusted to them.
Third, there is a crying need to align the anti-corruption machinery of state with the requirements of the law and the Constitution. On Zuma’s watch an executive controlled “Anti-Corruption Task Team” was created in 2010 to deal with serious cases of corruption. After the Constitutional Court judgments on the topic of combating corruption it became illegal and unconstitutional to persist with the task team. That did not deter the Zuma administration; the Anti-Corruption Task Team exists, or limps along to this day. Perhaps unsurprisingly, it has failed to land a single big fish; indeed, it has not mounted any prosecution that led to an opposed trial of any seriously corrupt individual.
The need for the single anti-corruption entity to be adequately independent has been recognised repeatedly by the courts but has been ignored consistently by the Zuma administration for reasons that are obvious, given that the first Gupta arrests only occurred on 14 February 2018, while the allegations of wrongdoing at the Estina Dairy Project in Vrede have been in the public domain since 2013 and the verifying #GuptaLeaks since 2017. This belated activity on the part of the Hawks is actually proof of their inability to act without fear, favour or prejudice. They ought to be above the vicissitudes of politics.
It is beyond question that SA has the talents and skills available to crack down on the corrupt. The Scorpions, closed down by a Polokwane resolution to keep Zuma out of jail, proved this during their short existence. The weakness of the Scorpions was that they did not enjoy security of tenure of office. This made it possible for a simple majority in Parliament to dissolve them. Any replacement worth its salt would have to be established in a way that relieves it of a similar fate to that of the Scorpions. Our courts have recognised this self-evident fact, but the ANC executive has not.
The best-practice way of bringing about security of tenure is to establish an integrity commission under Chapter Nine of the Constitution for the purpose of preventing, combating, investigating and prosecuting serious corruption. This specialised function, free of executive influence or interference, will be both structurally and operationally separate from the prosecution authority and the police. The capture of both by Zuma, whether partial or perceived, will not slow the work needed to deal appropriately with the elimination of the corruption in high places that has dogged the country in the Zuma years. While the corrupt remain in a state of impunity and in the Cabinet, the scourge of corruption will be a potentially terminal malady in our midst.
The beauty of Chapter Nine Institutions is that they cannot simply be closed down by an unhappy executive branch. A two-thirds majority in Parliament would be required to do so. Given our national bad experiences flowing from the dissolution of the Scorpions, it is unlikely that the people and the parliamentarians would allow that wrong move to be repeated.
In order to establish a Chapter Nine Institution, a minor constitutional amendment is required, and the new institution, which could be called the Integrity Commission, the Independent Commission against Corruption or simply the Anti-Corruption Commission, would need empowering legislation. Accountability Now has prepared draft bills for both pieces of legislation.
FutureSA should acquaint itself with them, make suggestions for any improvements thought necessary and put its weight behind actually establishing the new Chapter Nine institution as a matter of national urgency.
On 15 April 2016 the Constitutional Review Committee of the National Assembly received representations from Accountability Now concerning some of the reforms suggested above. The committee is still mulling over the reforms. The time is now ripe to re-energise its deliberations in the interests of entering the national “platinum period” smoothly. FutureSA is well equipped and able to play a constructive role in the process.
The various demands and ideas it has proposed will have a better chance of thriving in circumstances in which all three suggestions put forward above are properly considered, refined and actualised. DM
Paul Hoffman SC is a director of Accountability Now
Opinion editorial published in the Daily Maverick on 15 February 2018.