It should not be allowed to pass unnoticed that Professor Kader Asmal, an architect of the constitution, a former cabinet member under two Presidents, and an ANC stalwart, has used the opportunity presented by the conference on ethics in public life held in Cape Town in October 2010 to call for the scrapping of the ANC’s national democratic revolutionary agenda or “NDR” as he referred to it.

The conference was organized jointly by the Public Service Commission and the Institute for Security Studies, a perfect public private partnership, and it attracted a full house on both days it ran.

Professor Asmal was asked about corruption in the tripartite alliance. Choosing his words carefully, the learned professor put it this way: “The ANC is not corrupt, but there are corrupt people in the ANC”. This attracted appreciative applause. He bemoaned the fact that only Tony Yengeni, of all parliamentarian of the new South Africa, has had to serve time in prison (for defrauding parliament).

Almost as an aside, Professor Asmal called for the NDR to be scrapped, suggesting that the time to do so has come and hinting at dire consequences if it is not abandoned.

This is a welcome departure from the direction in which the ANC has been travelling for some time, and certainly does not accord with the thinking coming out of Luthuli House. It is to be hoped that the ANC’s response to the call will not be disciplinary steps against the Professor, but rather a sober appraisal of his call. There are sound reasons to give serious consideration to the call, coming as it does from an eminent, learned and senior member of the ANC who, having resigned from parliament on the matter of principle that he was not prepared to vote for the disbandment of the Scorpions, still renders sterling public service, now in the academic sphere as a professor of law at the University of the Western Cape.

The fundamental reason for scrapping the NDR is its unworkability: its pursuit creates a conflict of interests because the values of the revolution are incompatible with those of the constitution. Political office bearers are obliged to swear an oath or affirm that they will uphold the constitution. Those that are also required to walk the path of the NDR are hopelessly compromised by the clash of values that this entails. The supremacy of the constitution and the rule of law are entrenched as foundational values of the new South Africa. Conduct inconsistent with the constitution is invalid. All too often the supremacy of loyalty to the party which the NDR requires places its members in a position in which they have to choose between following the way of the constitution and the way of the NDR. An occasion on which this occurred was when the voting on the bills to disband the Scorpions occurred, only Professor Asmal resigned from parliament rather than be obliged by party discipline to vote for the constitutionally questionable dissolution of the only independent corruption fighting unit among all the organisations created to deal with this scourge.

The essence of the NDR is that it seeks hegemonic control of all the levers of power in society – political, executive, legislative, judicial, public service, public enterprises, civil society – you name it, the revolution wants to control it. The current focal points of this revolutionary intent are the media, the protection of information, the economy (especially mines and banks) and the National Prosecuting Authority, where Menzi Simelane has been deployed to implement the ANC’s vision for the NPA; a vision very much at odds with the constitutional notions of functioning “without fear, favour or prejudice” – meaning independently of the executive and legislature. There are also indications that the unofficial ANC “caucus” in the Judicial Service Commission is determined to secure the leadership of the Judiciary in safe revolutionary hands, notwithstanding spirited resistance from constitutionalists and lawyers on that body. The Legal Practice Bill is a manifestation of NDR thinking.

True revolutionaries are quite content to allow the rule of law to be trampled under the feet of party bosses via the abuse of the party list system which accords too much power to those who control the lists, and too little to those on the lists. Revolutionaries like the idea of the tyranny of the majority, not for them the checks and balances on the exercise of power which have so carefully been woven into the fabric of the constitution to protect the position of minorities and guard against the abuse of power by elites, abuse which prejudices all of us. This has already happened: in the face of the commitment of the constitution to advance the achievement of equality, we have actually seen the exacerbation of inequality since 1994. The misery this kind of regression involves is not peacefully sustainable in the long term, a revolutionary agenda would attempt to address it in ways that are neither peaceful nor harmonious. Chaos in our basic education system stokes revolutionary fervour and produces millions of illiterate, innumerate foot soldiers for the NDR, or more probably, the “real revolution” to which Gareth Cliff refers.

Chapter Nine of the constitution creates several state institutions. They are supposed to act without fear, favour or prejudice to advance our democracy. Instead, the cadre deployment system which is part of the NDR is used to place cadres in positions of control of Chapter Nines (and elsewhere) so as to advance the goals of the NDR. The spat between Helen Zille and a collection of Janet Love fans (some of whom should know better) is an illustration of this phenomenon. Gwede Mantashe must be bemused by the fuss, after all, he is the one who admitted that his former NEC member has been deployed to the Human Rights Commission, where her duty to act independently conflicts daily with her loyalty to the party and her role as a deployee of its NDR.

The constitution envisages a multi party democracy with a mixed economy in which rights to property are protected. The NDR seeks a one party socialist hegemony. The calls by the ANCYL and other proponents of the NDR for the nationalization of mines and banks are totally consistent with the aims of the revolution, and totally inconsistent with the protection of property rights enshrined in the Bill of Rights.

While the constitution regards transparent, accountable and responsive governance as foundational to our new order, a closed, opaque and unaccountable order which is responsive only to the lust for power of the elite and its cronies is already manifesting itself in the post Polokwane ANC. The proposed Media Appeals Tribunal and the so-called Secrecy Bill are but two recent manifestations of this.

Parliamentary oversight of the executive is envisaged in the constitution. The unabashedly unco-operative attitude of Minister Lindiwe Sisulu to the select committee on defence is typical of the stance of those who favour the NDR – parliament is but a tame and blind rubber stamp for those who have a firm grip on the levers of power. Mathews Phosa reckons that the centre of power is in Luthuli House and not anywhere else. Actually, the constitution is the source and centre of power.

Small wonder, in these circumstances, that Professor Asmal, a constitutionalist to his fingertips, has called for the scrapping of the NDR. It is a sound and sensible call which should be heeded, or at least debated so as to bring the entrails of the NDR out into the open for proper public examination.

Paul Hoffman SC
23 October, 2010.