By Paul Hoffman
If the ministers of police and prisons decline to resign, the duty of the president is to dismiss them. They serve at his pleasure and it is arguably irrational not to recall the ministers who are directly politically responsible for the Bester fiasco.
The column space in Daily Maverick has been filled with much reportage on a daring prison escape last May, pulled off in such a way as to create the impression that the escapee, one Thabo Bester, had apparently succumbed in a late-night fire which broke out inexplicably in his single cell in the Mangaung Correctional Facility.
This maximum-security prison is run by G4S, a private contractor, at a cost to the taxpayer of R45-million per month. On the run in northern Tanzania, Bester and two others were stopped at a routine roadblock by alert local police who have returned him and his common-law wife to face justice in South Africa.
Who is accountable for this fiasco?
The Constitution regards accountability, along with openness and responsiveness, as foundational to the system of governance for our post-apartheid order. The three values go hand in hand.
In section 205 it is spelt out that the objects of the South African Police Service (SAPS) are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
Section 206 makes it explicit that “a member of the Cabinet must be responsible for policing and must determine national policing policy after consulting the provincial governments…”.
The governing principles relating to all security services in SA “must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life” are set out in section 198. The values and principles according to which the police — and indeed the whole of the public administration — must be governed are detailed in section 195. Of relevance to the Bester fiasco are that:
- A high standard of professional ethics must be promoted and maintained;
- Efficient, economic and effective use of resources must also be promoted and maintained in the public administration in general and the police service in particular as regards the prison break;
- People’s needs must be responded to;
- Public administration must be accountable; and
- Transparency must be fostered by providing the public with timely, accessible and accurate information.
There would appear to have been a breach of all these principles and values, particularly as regards accountability.
The meaning given to accountability in law involves requiring those accountable to explain their decisions rationally and justify their actions reasonably in the process of being held accountable for their actions or inaction. Accountability refers to the obligation of individuals, organisations, and institutions to be answerable for their actions and decisions.
The ultimate way to exact accountability is via a mandamus, being an order of court compelling the duty holder to discharge the duty concerned properly. It is a legal remedy that has been available since its introduction through the common law in the 19th century. A mandamus serves as a legal remedy to ensure accountability through the courts.
Who then should be held to account for the strange goings-on in single cell 35 on the night of the fire?
Early red flags
Thabo Bester got one of the worst starts in life imaginable. His 17-year-old mother was raped by a stranger who was never seen again. That unknown rapist has a lot to answer for, but the police were not able to find him and bring him to justice. Instead, Bester was raised by his maternal relatives in circumstances best described as poverty-stricken and dysfunctional.
It is a racing certainty that he was not exposed to early childhood development services (they were even more scarce when he was young than they still are now) and he departed the basic education system at the standard five (grade 7) level, hardly an auspicious start in life.
His parents, his wider family and the dysfunction in the basic education system saw to it that Bester developed into the charming “Facebook rapist” and successful businessman he became in adulthood with all the attendant sociopathy, if not psychopathy.
His own failure to “seek a better life” by leading a crime-free existence ought not to be excluded. He was tried, found guilty of multiple murders and rapes and was sentenced to imprisonment for life.
That process was the way in which the criminal justice system held him to account before handing him over to the privately-run maximum-security prison in Mangaung to serve his time. The contract penalises G4S at the rate of R1-million per escaped prisoner, giving it an expensive reason to cover up any less-than-obvious escape.
Buck stops with SA authorities
The charred body found in Bester’s single cell was subjected to a post-mortem examination which established that the fire in the cell had nothing to do with the death of the corpse. A head count in the prison made it clear that Bester had flown the coop in Mangaung and was in all probability at large.
The prison authorities, both the private contractor and the Department of Correctional Services, are obliged to inform the police of an escape from prison and the police are obliged to hunt down and re-arrest dangerous convicted criminals who have a penchant for preying on gullible young women.
The Constitutional Court, in a 2001 judgment called Carmichele v Minister of Safety and Security, stated that police and prosecutors have the obligation to protect against gender-based discrimination and to protect the dignity, security and freedom of women.
In that case, a young woman was assaulted in her home by a man not unlike Thabo Bester. In the Alix Carmichele case the offender had been released on bail while awaiting trial on rape charges. The release was effected on the recommendation of the police and prosecutors involved in the case. They were wrong to do so.
The duty and the obligations identified in Carmichele’s case apply, a fortiori, to the case of an escaped convicted rapist and murderer. It is of particular interest to survivors and witnesses used to secure the conviction of Thabo Bester that the danger he poses to the public while at large be guarded against and treated as a matter for transparency, not secrecy.
The minister of police is unwilling to “speculate” on what might have happened while Bester was on the run. He cannot escape accountability for failing in his responsibilities, both in allowing Bester to slip out of the country and in not alerting the public to the fact that he had, at least as a matter of probability, escaped from prison in the circumstances surrounding the unseen fire in his cell.
Those who testified to secure his conviction were not, on the facts publicly available, warned of the possibility — if not probability — that he was at large until the Tanzanian police intervened.
Political responsibility for keeping convicted prisoners in prison until they have served their sentences, die or are released on parole is that of the minister of correctional services.
Under section 92 of the Constitution, members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.
Both ministers have reported to Parliament regarding their role in the Bester fiasco. In the exercise of its oversight function, Parliament summoned them, the Inspecting Judge of Prisons, and the contractors involved to explain themselves. That the ministers have not acted in accordance with the Constitution, as they are required to do under section 92(3) is plain.
The minister of correctional services rather enigmatically accepts responsibility but refuses to resign. His jocularity and efforts to hide behind the Inspecting Judge of Prisons are inappropriate from an accountability perspective.
There is simply no excuse for keeping the public vulnerable to the wiles and ways of Bester and in the dark concerning the escape for so long. If no great harm has been done while Bester was on the loose, it is due to good luck, not good management of the police and prisons portfolios.
If both ministers decline to resign, the duty of the president is to dismiss them. They serve at his pleasure and it is arguably irrational not to recall the ministers who are directly politically responsible for the Bester fiasco.
Post Phala Phala paralysis will probably preclude the president from lifting a finger to hold those in his Cabinet who are responsible to account.
There also appears to be a governmental brain freeze on the obvious fundamental breach of contract on the part of G4S, not only in allowing the escape, which quite obviously involved more than the three dismissed members of its personnel, but also in covering it up in the manner exposed during the parliamentary hearing.
Good reasons for not cancelling the contract do not include the donor/donee relationship with the ANC alluded to during the oversight activities of the shadow minister of justice when she was questioning the representatives of the security contractor. The ANC is but a mere political party, it is not the government.
While the reputation of Parliament has been enhanced by the vigour of the oversight seen during the hearings held, the executive branch of government has taken a mauling which, in any half-decent democracy, would lead to resignations by the ministers on whose watch the escape and cover-up occurred.
Laughing the whole affair off won’t do, not if accountability means anything in the Ramaphosa Cabinet. DM