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writing for godot

Constitutional Democracy under Threat: South Africa’s Dark Side

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Written by Winston P. Nagan   
Friday, 11 May 2012 03:18
South Africa experienced a remarkable transformation in the early 1990’s. That transformation secured the relatively peaceful demise of apartheid, the virulent form of white supremacist rule. The negotiations secured the foundations of a democracy and a powerful and widely admired constitution. The South African political system continued to reproduce the elections that make democracy credible. It’s Constitutional Court from the beginning established and important role for the rule of law in setting the foundations of freedom under law. Politics is a volatile business and the control of politics generates temptations of material gain. In this, South Africa’s democracy is unexceptional. However, early on in the process of transformation, many of the liberation movement functionaries were returning to South Africa after many years of struggling in exile. They received no compensation for the work they did. Additionally, many of the staunch opponents of the regime spent their time in prison, and were devoid of any material sustenance when they were released. And many activists inside South Africa sacrificed material security for the struggle.

When the ANC officially took power in 1994, they came in with an idealistic agenda favoring social economic priorities and reducing military expenditures. This did not preclude some expenditure for defense modernization. Initial defense costs were estimated to be less than one billion Rand. It is estimated that defense costs now will be in excess of one hundred billion Rand. The processes that triggered arms purchases came to be known in South Africa as “Armsgate.” As the process initially unfolded for the purchase of aircraft, it became apparent that the ANC political figures had a special contract in mind with BAE-Saab. An ANC auditor determined that the reason BAE-Saab was chosen was that the contract involved a hundred and sixty million “pounds” in bribes. The bribes were meant to “financially incentivize” decision makers. When the accountants began to examine the arms deals the examiners were called to a meeting of the senior ANC leadership and were challenged for questioning the integrity of the cabinet and the leadership of the ANC. President Mbeki then indicated that the auditing should seize because the arms deals matters would be dealt with privately within the ANC and not publicly. Mbeki then proceeded to expand the prohibition of an auditing investigation stipulating exactly what the state’s auditing bodies could and could not investigate. Mbeki became the primary agent for the emergence of a form of institutionalized dishonesty: “corruptheid.” South Africa has never recovered from the shadow of the massive bribery/corruption episode covering arms purchases. President Zuma himself was charged with 700 counts of corruption and these charges were later dropped prior to the election.

While getting to the bottom of “Armsgate” has not been achieved, sufficient publicity and notoriety emerged for the public to be more engaged about state corruption. The liberation struggle of the ANC has now gone in a different direction. It has learned from the suppression legislation of the apartheid era and has emerged with its own form of control, regulation, and suppression of the truth. Two bills have been introduced into parliament in South Africa: the Protection of State Information Bill and the Media Tribunal Bill. The Media Tribunal Bill requires that journalists submit to it the areas that they intent to investigate or have investigated and will write about. The Tribunal will determine whether these areas are a threat to the security of the state. This Tribunal’s reach goes well beyond defense security matters. This Tribunal, it is proposed, provides that any government official at any rank may charge that the gathering of information relating to the area of inquiry is a criminal offense. In short, the Media Tribunal is an institution of prior restraint and monumental censorship.

In the legislation known as the Protection of State Information Bill, we have a legislative effort to punish whistleblowers with severe sentences if they expose to the press the rampant corruption of individuals in government, in finance and in industry. This secrecy bill is major legislative effort to institutionalize and strengthen the commitment to corruptheid. An editor who exposes corruption runs the risk of conviction under the bill for terms that may range from 5 to 25 years. The crimes include receiving information that one knows (reasonably) will directly or indirectly benefit a foreign state. A 10-year sentence may be imposed for concealing a confidential new source. A 5-year sentence may be imposed for disclosing classified information. And a 5-year sentence may be imposed for the failure to report the possession of classified information.

These bills together represent a monumental commitment to the repudiation of every principle of agreed upon good governance principles worldwide. They repudiate transparency, they mock responsibility, they drown accountability, and they demonize the rule of law. Finally, the President himself has been speculating with the demolition of the judicial independence of the Constitutional Court. This Court is the crown jewel of African jurisprudence. Only willful ignorance or political venality would encourage the suggestions emerging from President Zuma’s office. There are historical lessons. Paul Kruger was horrified at what he called the Transvaal Testing Right to overturn nakedly discriminatory legislation. After the war, the Appellate Division of the South African Supreme Court overturned an apartheid law that designated parliament itself as a Supreme Court review of the Appellate Divisions decisions. The Court ruled, in the High Court of Parliament Act case, that parliament was simply not a court.

Returning to the emergence and traction of corruptheid in South African political culture, it is possible that the circumstances of the transformation may have provided some implicit support for this. As noted, whether an ANC operative was in exile or jail or in the struggle, domestically, there was no remuneration available for the material sacrifices. However, as the exile operative returned to South Africa, they found a Reception Committee in South Africa’s skilled business and financial sector. There were always indulgences available, which could seem altruistic, but in fact always contained an expectation of reciprocity. From the perspective of the returnees, they may have seen these benefits as a reward for sacrifice, or simply as a matter of differed compensation. In any event, they did not see these matters as vested with a dangerous corrupting aura. But once the pathway of pay off expectations is established and then institutionalized and insulated from accountability, its broader destructive impact on political development becomes a serious matter that requires a radical change of direction.

At present, it is imperative that the elders of the ANC take a firm stand on this. Regrettably, we need Mandela to add his voice to the ANC stalwarts like Kathrada, Asmal, Bishop Tutu, Mrs. Winnie Mandela, Pius Langa, Albie Sacks, and others, to have their voices heard in an unambiguous manner. They should recognize that the matter is a crisis for the integrity of the ANC and the soul of the beloved country.
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