South Africa is at a crossroads
Thanks to a vibrant and independent judiciary, hope springs eternal that we will, as a nation, reclaim the glory days of the Mandela era, writes Judge Thumba Pillay
IKNEW both Griffiths and Victoria Mxenge. As human rights lawyers with a common political home, we would engage and liaise with each other on the trials we were handling, usually on issues such as what testimony to expect from State witnesses, some of whom testified from one trial on to another.
It had become customary for us as lawyers in “political” cases to compare notes and exchange transcripts of evidence for the purposes of testing credibility, consistency and the reliability of such witnesses.
Griffiths’s brutal murder was received with a profound sense of shock by both the legal fraternity and political activists alike.
The manner of his death and the cowardly smear campaign by the security police, accusing the ANC of his murder, will remain one of the most disgraceful acts of the apartheid regime – the mystery of his assassins being revealed years later, only through the TRC.
I met Victoria Mxenge for the first time as part of the defence team in the 1985 Pietermaritzburg UDF treason trial. We worked together preparing for the trial, spending hours poring through volumes of documents, film clips, posters, pamphlets, tape and video recordings, much of it incomprehensible, all intended to be used as evidence against the accused.
It was while this case was proceeding that we received the news of her murder. This was just one of many killings that were to become an everyday event at the time.
Few will deny that there is an air of despondency and uncertainty engulfing the country. After witnessing recent events brought on by the State of the Nation Address (Sona), I am driven to the conclusion that a constitution is as strong and as inviolate as the will of its citizens, and more so in the will of those we choose and entrust to represent us in the various arms of government.
It is in the challenge to this repository of power and trust that may lie the answer to the vexed questions: “How could it be that we are where we are, blessed (as we are) with a constitution hailed as one of the best in the world?” “Are those in whose hands rest the reins of power living by what the constitution enjoins them to do?” “How can it be that today we can have an Esidimeni or a Marikana and lately a Sassa and a Prasa?!”
There is much wrong when key players in the law and order and security cluster are engaged in a war among themselves – the Independent Police Investigative Directorate (Ipid) pursuing allegedly trumpedup corruption charges against the acting commissioner of police, who in turn accuses Ipid of a vendetta of some sort; the Hawks at odds with the National Prosecuting Authority (NPA), which is in turn at war with just about everybody else.
You must remember former Hawks boss Berning Ntlemeza’s obvious irritation at Shaun Abrahams’s withdrawal of alleged corruption charges against then Finance Minister Pravin Gordhan. And we know there is no love lost between Ipid and the Hawks, and there is what has been described as a “frosty” relationship between the Minister of Police and the head of Ipid – all of which does little to inspire confidence in the security cluster and the fight against violent crime and corruption.
Cronyism
Disturbing also is the contestation for positions in state institutions, state-owned entities and parastatals, mostly with an eye to the accumulation of wealth and access to resources.
There are no holds barred to blatant and undisguised cronyism. The increasing use of the courts in the pursuit of party political ends, the settling of personal and political scores, the defence of the indefensible, is turning out to be a burden on the taxpayer, leaving a legal profession smiling all the way to the bank and judges worried about being increasingly drawn into the political arena, or what we would call judicial creep into executive functions, as in the Sassa debacle.
The contestation for power and positions has taken on an ugly face where brother kills brother. The appointment in this province of the Moerane Commission to investigate political killings is a case in point. This announcement is more attuned to the “bad old days” when this province, racked by political and factional battles, was referred to as the “Killing Fields of Natal”.
Holding political office, be it at local, provincial or national level, is no longer seen as a mandate from the electorate to serve the public good, but as a stepping stone to the accumulation of wealth and access to resources, now acknowledged to be true even by the ruling party. It also carries risk to life and limb.
We are at the crossroads when it comes to good governance, constitutionalism and the rule of law.
Some may consider this an alarmist view, but few will deny that morale is at an all-time low since 1994.
There exists a perception, not an unreasonable one, that the office of the NPA is selective – contrary to that which is held sacred to that office, and that is to carry out its duties according to law and without fear, favour or prejudice.
The recent announcement of the setting up of an independent unit by an NGO, Afriforum, to focus on private prosecutions should not be surprising.
However, all is not lost. Thanks to a vibrant and independent judiciary exemplified in judgments in the Al-Bashir case, the public protector’s report on Nkandla and the setting aside of the executive decision to withdraw from the ICC and now in the Sassa matter, among other notable judicial pronouncements, hope springs eternal that we will as a nation, having come through an era of intense repression before the advent of democracy, reclaim the glory days of the Mandela era.
I share with Professor George Devenish, Emeritus Law Professor of this university, that the judgment in the ICC matter reflects the “excellent reputation of the South African judiciary that indicates that our constitution is working and is a dynamic phenomenon. It means that the courts are acting independently and delivering judgments without fear or favour”.
Therein lies our hope for the future.
In the ICC matter, I do hope that for now good sense prevails and that there will not be a “withdrawal of the withdrawal”.
Also welcome in the current state of disarray in governance is the resurgence of a number of citizens and activist organisations, NGOs and public interest groups throughout the country, all committed to the constitution, the Bill of Rights, the rule of law and nation-building, free of party political loyalty. This is a positive development.
Having dealt with the past and the inevitable drift into the present, I cannot end without some food for thought on what I believe needs some fixing, and here I want to focus briefly on our electoral laws, which govern how we elect those who represent us at local, provincial and national levels of government.
Its relevance may go some way to providing an answer to the question which many of us are asking: “Where to after Sona 2017?”
Time does not allow for an in-depth examination of all the options, one of which would be a re-examination of the powers accorded to the president under the constitution, and from a party political perspective, a reflection or introspection into their own constitutions on party leadership, succession and so on. This is a debate which is now very much in the public domain.
I would like, however, to deal with just one aspect of our electoral law and that relates to the notion of accountability.
Just over 15 years ago, on March 20, 2002, the cabinet resolved to appoint an “electoral task team” chaired by Frederik van Zyl Slabbert, who has since died, to draw new electoral legislation required by the constitution. Its mandate was “to develop specific proposals identifying the preferable electoral system to be canvassed with all role-players and stakeholders”.
Accountability
In a keynote address to the commission, the central theme of the relevant minister’s address, interestingly, was the issue of how an electoral system can contribute to political accountability in the sense of closer interaction between public representatives and voters. Recent talk in the ruling party is about “the social disconnect between the leadership and the voters”.
This was one of the issues that dominated the task team’s proceedings. Views ranged from the one extreme of there being no role for accountability in electoral systems, to such systems having accountability as an absolutely essential role.
Proponents of accountability held the view that some form of constituency system, over and above the current nine provinces, needed to be combined with a proportional representation system.
In the surveys carried out by the task team, significantly, 71% indicated that they wanted to vote for a candidate from the area where they lived; 64% indicated that members of Parliament should live close to the people they represent; and 53% that party candidates should be chosen by party members rather than by party leaders, figures which I venture would be substantially higher if a survey were to be conducted in the present disjuncture between leadership and the voting public.
It was clear from the survey that a significant majority of voters wanted closer interaction with the politicians who represent them.
At the end of the day, the task team accepted that accountability gave rise to more debate than the other accepted core values of fairness, inclusivity and simplicity.
Notably, on accountability the task team concluded, and this is likely to resonate with many of you, that “no system can simply deliver accountability. Electoral systems of whatever variety can be abused by leaders, cliques, representatives and parties in an unimaginable number of ways”. The doctoring of party lists, gate-keeping and slates come to mind.
One needs to bear in mind that redress for such behaviour cannot be sought in an electoral system but rather from within the party itself.
Thankfully, there is an increasing realisation from within the ruling party at least that the branches have all but lost having any say in the choice of candidates. Their core function appears to have been whittled down to campaigning at election time. Branches have laid themselves open to careerists and opportunists and have become yes men and yes women to those actually wielding power.
On the positive side, there is an increasing realisation that the branches remain the heartbeat of the organisation.
Voices are now being increasingly heard for a review of the electoral system and introspection on internal party procedure in the choice of candidates.
The majority view of the Van Zyl Slabbert Electoral Task Team, as I understand it, is that in order to facilitate accessibility and responsiveness between voter and representative, the nine provinces be demarcated into multimember constituencies with between three and seven representatives coming from each demarcated constituency, to make up 300 representatives to the National Assembly, the remaining 100 from national lists to restore proportionality.
The unintended outcome, as I see it and hope, may well lead to provincial government becoming redundant.
I hasten to add that that was not a recommendation of the task team. But such a move would, in my view, release vast sums of money which could well be utilised to strengthen local government which, after all, is the coalface of service delivery.
It must occur to everybody that with provincial government goes a bloated and expensive bureaucracy costing billions of rand and of course more opportunities in the scramble for positions.
The proposals of the electoral task team may not be the panacea we are looking for to rescue us from again witnessing the bar room brawl we saw in this year’s Sona.
In my opinion, accountability is high on the list. If I were asked to draw a line or a common thread between the judgment in “Nkandla” and “Sassa,” it would have to be accountability.
The same could be said for a resolution of the woes in the SABC, Eskom, SAA and other parastatals and state-owned entities. Need I add to that list the present crisis in the presidency, which also boils down to one of accountability. Across the political spectrum, the question everyone is asking is: “Who is the president really accountable to?”
We owe it to both Griffiths and Victoria Mxenge and to the many who made the supreme sacrifice for a place in the sun for all of South Africa’s children to rescue the country from the crisis in governance currently facing us.
That is the credo by which both Griffiths and Victoria Mxenge lived their lives, and would have lived their lives, had they not been cruelly cut down.
This is an excerpt from the keynote address delivered by Judge Pillay on the occasion of the 15th Victoria and Griffiths Mxenge Memorial Lecture earlier this week.