There is no doubt that times are tough in our newly democratic SA. As we celebrate twenty one years of constitutionalism under the rule of law problems of poverty, inequality and joblessness remain unsolved. Our basic education system does not give the youth of the country an appropriate start in life due to its dysfunctional features, especially in rural and township schools. The battle against corruption is being lost as deployed cadres of the “national democratic revolution” (NDR) go about their attempts to seize all the levers of power in the land. The cadres’ avowed purpose is hardly responsive to the needs of ordinary people because it leads towards the desired, but actually oh-so undesirable, hegemonic control present in a one-party state in which the separation of powers, the rule of law and an independent media are all conspicuously absent. Checks and balances on the exercise of power are eliminated in this supposedly “revolutionary” struggle which in truth is neither national nor democratic in the sense that these concepts are portrayed in our Constitution.
State owned enterprises are in disarray: Eskom leads the way (toward darkness) with its load-shedding and long week-end “maintenance festivals”. SAA is in constant need of bail-outs as it competes unsuccessfully with privately owned airlines that turn a profit. The railways provide a service so bad that frustrated commuters torch carriages and stations. The Post Office is often strike bound and our post remains undelivered far too often.
Xenophobia, or Afrophobia or plain antipathy to foreigners has again raised its ugly head in violent ways. The army has been deployed to deal with this in a manner which brings to mind the “troops in townships” spectre of the 1980s.
Our criminal justice administration has, in effect, been decapitated by the executive branch of government: The National Director of Public Prosecutions is the subject of an inquiry into his fitness for office. One of his deputies faces serious criminal charges at the same time as the General Council of the Bar seeks to have three of our most senior prosecutors struck off the roll of advocates for their criminal misconduct. The Hawks, our elite independent corruption busters, are headless following the “resignation” of General Anwa Dramat. His departure from the SAPS has all the hallmarks of a forced retrenchment by the Minister of Police. This is deeply and darkly illegal because corruption busters are meant to enjoy the security of tenure of office that enables them to mount investigations without fear, favour or prejudice into corruption in high places. Dramat’s acting replacement does not inspire confidence in freedom-loving people. The national commissioner of police, a social worker with no policing background, is unlikely to survive the recommendations of the Marikana report due for publication shortly.
Our president, who claims he was once offered a bribe of R20 million by former president Mbeki, is a suspected crook. He faces 783 charges of corruption, fraud, racketeering and money laundering if the DA succeeds in its judicial review of the decision not to prosecute then private citizen Jacob Zuma. The president also faces complaints that he has benefitted unduly as a consequence of improper expenditure on security enhancements of his home at Nkandla that include a “fire pool”, an amphitheatre and a chicken run. Such a person is too conflicted and too compromised to be the head of state and head of the national executive in any functioning constitutional democracy.
Charges of corruption, fraud and theft at Nkandla have been laid as long ago as 2013. No apparent progress has been made in their investigation due to the levels of dysfunction in the police. The Hawks have been kept away from the investigation, such as it is, illegally so. It is widely believed that the suspension and removal from office of the head of the Hawks has more to do with the desire of Zuma’s hand-picked cabinet to keep the Nkandla debacle away from any further independent investigation, especially one concentrated on criminality rather than the maladministration which was the focus of the Office of the Public Protector. Dramat was suspended shortly after he called for the police dockets on Nkandla and he refused to dismiss his deputy in Kwa-Zulu Natal, General Johan Booysen, who is a thorn in the flesh of the corrupt in that province.
The Chapter Nine institutions are infested with deployed cadres who do not see themselves as apostles of constitutional democracy because the thrust of the NDR is neither constitutional nor democratic. The IEC has a new board member who was a special advisor to the president and who runs an election administration business in Africa. His obvious conflicts of interest are brushed aside by those who deploy cadres, to the detriment of the independence of an institution which ought to be above reproach in the exercise of its mandate to ensure free and fair elections.
Only the Public Protector withstands objective scrutiny and sticks to her constitutional mandate in trying circumstances. As the only functional anti-corruption body, her office is swamped with new complaints while starved of the resources needed to investigate diligently and without delay.
The economy is in tatters. Job creation has stalled. Foreign direct investment is a small fraction of what it could and should be. Even local investment in projects that would be able to put the nation to work is backward in coming forward. Learned commentator and Oxford don, Bill Johnson, estimates that SA will run out of money within three to five years as our treasury buckles under the demands of a social welfare net that already feeds 17 million beneficiaries. Falling revenues as a result of economic stagnation, the Eskom crisis and social unrest that stalls tourism will have SA placing its begging bowl on the loans table at the International Monetary Fund in Johnson’s predicted scenario. The IMF only makes loans to countries that respect the rule of law or at least promise to do so.
With all of these challenges, and many more, what ought South Africans to do in order to achieve the peace, progress and prosperity we all hoped for when apartheid ended and our constitutional democracy was ushered in as a miracle in 1994?
South Africans need to become active citizens; we are no longer subjects of an authoritarian regime. We have a supreme Constitution which is the envy of freedom loving people everywhere. Our justiciable Bill of Rights obliges the state to respect and protect the various human rights and freedoms which are guaranteed to all in the dispensation now in place. The proper implementation of the Bill of Rights and the upholding of the Constitution itself represent the best hope for a brighter future. This ought not to be as difficult as it has become. The consensus that informed the National Accord and the effort that went into formulating the Constitution should give hope to everyone. All of 2 million SA citizens directly participated in the constitution making exercise. The representatives of the overwhelming majority of political parties active in 1994 supported the adoption of our new constitutional order which decisively moved away from the parliamentary sovereignty of the old order and toward the embrace of a supreme constitution which binds everyone to conduct themselves in a manner which is consistent with the Constitution. Holding our politicians and public servants to the standards of the Constitution is the work of all caring and engaged citizens. The NDR is the enemy of the Constitution and it needs to be ‘outed’ accordingly.
The challenges we face in 2015 ought to have us all reaching for the Constitution, our supreme law, and using it to right the ship of state. The consensus around the values and principles in our Constitution is the key to a long lasting solution to our national challenges. The celebration of 21 years of freedom needs to be tempered with the need to nurture and uphold our Constitution. It is a remarkable law and well worth the active support of all freedom loving South Africans. Happy Freedom Day.
Paul Hoffman SC is a director of Accountability Now
25 April 2015.