By Paul Hoffman Follow 08 Feb 2022 3
Paul Hoffman SC is a director of Accountability Now.
Any stance favouring the National Democratic Revolution and its implementation via violent insurrectionary means should be met with stern action from the security establishment, but was not during the July 2021 insurrection, as the report by the experts shows in graphic detail.
The report into the attempted insurrection in KwaZulu-Natal and parts of Gauteng during July 2021 has been published three months after it was presented to the President. It draws attention to the failed role of the security services in the mayhem. By pointing to the provisions of Section 199 (7) of the Constitution, the panel of experts, engaged by the President to get to the bottom of the trouble, has inadvertently highlighted a core problem that has dogged the achievement of freedom, justice and peace in South Africa since 1994.
The panel does not address this long-standing problem save to note that poverty and inequality should not be as persistent as they are in South Africa. Their persistence is largely due to two factors. First, the failure of the government to respect and protect the human rights guaranteed to all in the Bill of Rights. Second, the effect on the finances of the country of the wholesale looting carried out by, or on behalf of, the ANC, as revealed in the report of the State Capture Commission.
A lot of hungry children could be fed, many homeless people housed and many more clinics, hospitals and schools built with the loot of State Capture (were the state to take active steps to recover it). Public revulsion at the looting in State Capture does not feature in the report, either as a cause of the insurrection or at all. Instead the pandemic and the economy are blamed as contributing factors to what was in essence ANC factional infighting spilling over into the streets and supermarkets hit by those swept up in the insurrection.
The more than a trillion rand looted on the ANC’s watch, especially during the “wasted” Zuma years, could do a great deal to reduce poverty and address inequality, both of which are constitutional goals that have been inexcusably neglected by successive ANC-led administrations since 1994.
The relevant section of the Constitution reads:
“Neither the security services, nor any of their members, may, in the performance of their functions –
(a) Prejudice a political party interest that is legitimate in terms of the Constitution, or
(b) Further, in a partisan manner, any interest of a political party.”
The panel suggests, quite strongly, that the origins of the attempted insurrection are to be found in the factionalism that exists within the ANC. For present purposes there are four main factions (there may be more, lurking in the patronage networks that abound within the ANC):
First, the President’s CR17/22 faction which pays lip service to the Constitution and, quite contradictorily so, pursues the National Democratic Revolution – as President Cyril Ramaphosa himself put it in January 2022: “… the ANC remains committed to the Constitution, the Bill of Rights, and the judiciary.”
But he also said his party needed to “commit towards deepening and defending our National Democratic Revolution”.
Second, the Radical Economic Transformation (RET) faction which takes a more muscular approach to the revolution while also paying perfunctory lip service to the Constitution, which it uses as a fig leaf to strive for respectability it does not deserve.
Third, the emergent Lindiwe Sisulu faction, at the vanguard of rejecting the Constitution, the rule of law and the “African judges” who have allowed their minds to be “colonised”. These are the true apostles of the NDR, no “dexterity in tact” for them – they perceive the “balance of forces” to be such that the time has come to push on with the revolutionary agenda and abandon all pretence of fealty to the Constitution. The phrases in quotes are from the “Strategy and Tactics” documents of the ANC. A somewhat tentative member of this grouping is the Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini Zuma who was the failed RET candidate for president of the ANC at Nasrec in 2017. She announced at the start of the pandemic, at a media briefing on 25 April 2020, that it:
“… Also offers us an opportunity to accelerate the implementation of some long agreed upon structural changes to enable reconstruction, development and growth. These opportunities call for more sacrifices and – if needs be – what Amilcar Cabral called ‘class suicide’ wherein we must rally behind the common cause.”
Exactly what the minister meant when she said this to the startled journalists she addressed has been unpacked previously and need not detain us now.
And last, the ANC still has true constitutionalists who have no truck with the NDR and regard the Constitution as the supreme law of the land. Cosatu now finds itself in this grouping, or at least its leadership does. The late Kader Asmal was the first Cabinet minister to suggest that the NDR should be abandoned in favour of embracing constitutionalism. He resigned rather than support the dissolution of the Scorpions, which we know now was the first step toward the Zuma-era version of the State Capture project.
It needs to be noted that whatever the various factions may think and prefer, the truth is that the Constitution remains our supreme law and that the rule of law is given supremacy status in Section 1 of the Constitution.
What then do the words of the section of the Constitution quoted above denote in the context of the attempted insurrection?
Those planning and involved in fomenting and carrying out the looting and destruction, those responsible for the loss of life and even those who resorted to vigilantism in retaliation, were not furthering a political interest that is legitimate in terms of the Constitution. Our then defence minister, Nosiviwe Mapisa-Nqakula, now Speaker of the National Assembly, went so far as to describe the activities as “counter-revolutionary” but she was rapidly corrected.
The panel analyses the July 2021 activities as an attempted insurrection coordinated by persons with a pro-Zuma agenda who remain unidentified to this day despite the social media activities and the other noise made by the likes of Carl Niehaus. The notion that fomenting an insurrection can be a legitimate interest of a political party has only to be stated to be rejected. An insurrection is aimed at the violent overthrow of the state. Its illegitimacy is a given.
Where, then, does this leave those in the security services who did not do anything, or enough, to put a rapid end to the lawlessness and disorder?
They cannot argue that they kept out of it because the insurrection was in support of the RET faction leader Jacob Zuma and was carried out with a view to furthering the aims of the NDR as embraced by the RET faction. Lindiwe Sisulu’s visit to Nkandla shortly before the insurrection was not a courtesy call for a cup of tea. Nor was Julius Malema’s earlier visit to his former nemesis.
The RET faction, incorporating its external EFF wing, only relies on the Constitution when its leaders get into trouble with the law. Suddenly fair-trial rights, a “prisoner of conscience” and questionable entitlement to medical parole are invoked, relying on the law and the Constitution. These stunts are rich coming as they do from a former president who swore to uphold the Constitution and, contradictorily so, was at the centre of the State Capture project in which the Gupta and Watson family dynasties played the ANC and its NDR to satisfy their greed by enriching themselves at the expense of the taxpaying public of South Africa.
The path of the NDR is not the path of the Constitution. The NDR is deeply and darkly inconsistent with the Constitution. The differences between the objects and aims of each have been discussed previously and need not be repeated here.
While the mandate of the panel of experts who reported to the President last November was too narrow to engage with the NDR and its inconsistency with the Constitution, the publication now of its findings is the occasion for a wider debate that must centre on the role of the NDR in the factionalism of the ANC-led alliance and in the political dispensation in South Africa. The abandonment of the NDR as a relic of the liberation Struggle era ought to be an urgent priority of peace-loving members of the ANC.
Voters should understand what it means for them to support a party or faction that favours the retention of the NDR. The usefulness of the NDR actually ended in the settlement of 1994. The failure to bury it then leaves a rank and long-dead smell over the politics of those factions that favour its retention, whether for real, for show, for unity of the ANC or for undermining the Constitution in an illegitimate way.
Any stance favouring the NDR and its implementation via violent insurrectionary means should be met with stern action from the security establishment, but was not in the July 2021 insurrection as the report of the experts shows in graphic detail. If the security establishment of the country is riddled with supporters of the NDR they should be weeded out as a matter of urgent priority. The dismissal of Arthur Fraser by the President was a good start.
The public service is obliged under Section 197(1) of the Constitution to implement the lawful policies of the government of the day. Fomenting a revolution is not and can never be a lawful policy. DM