I have been trying to see through the hail storm of
“open lawfare” that is engulfing South Africa, and to connect the
dots into a strategy that can point to the Way Forward.
The three cardinal sins that need to be atoned are:
- A rogue president
- State capture
From Khwezi; to the 783 charges that were set aside irrationally; to the Inkandla debacle; to assisting an African despot wanted for war crimes to escape; to a unilateral Cabinet shuffle; to fast-tacking a president’s wife to diplomatic immunity – we are clearly dealing with a rogue president. People thought so highly of the “never-again Constitution” but now it seems that it allows the Executive Branch to dominate the Legislative and Judicial branches.
This phenomenon has been enabled to some extent by what is called “state capture”. Here we are looking at either government agencies like the NPA or para-statals like Eskom, SABC, SAA, and others, that have basically caved in to the Executive branch. Their autonomy and independence are no more. They are there to be plundered to fund extravagance and to perpetuate one clique within one party in power. So… you can pay for a private wedding by draining a dairy farm project; you can land a private jet-load of wedding guests at an air force base; you can fast-track citizenships for your foreign investors; and you can get accounting firms to validate these indiscretions by cooking the books.
Some entities like SARS have put up a fight to try to resist this “state capture” – and that triggers the third cardinal sin – bullying. This reality is rife at all levels of society, from Deputy Ministers beating women to MPs getting death threats. You can apply for interdicts to stop your critics from releasing reports; you can get your favourite PR firms to unleash their spin doctors on your opponents; you can get the “spooks” of SSA to hassle anyone suspected of “regime change” (which can also occur democratically, by the way, as a result of elections); you can deploy thugs in Watergate-esque fashion to do your dirty work (including political killings); and you can close effective law enforcement units like the Scorpions and replace them with crime-fighters that spend most of their time fighting one another – not crime!
This is where we sit, and of course everyone is hoping for a miracle that will correct these cardinal sins. Then we find that the new Public Protector is compromised; that the Alt-Right contender could be a Blesser; and that the internal factional fighting is so bad that even the party’s Elective Conference may be in jeopardy. This could prolong the cardinal sins, instead of atoning for them in real time.
So while the internal factions slug it out, with rhetoric and demands for resignation from alliance partners that get shriller every time Solly Mapaila makes a speech, there may be time for other parties to upload some new content onto their election platforms for 2019? On that note, I suggest three remedies that would go a long way to addressing the three cardinal sins. These three are a kind of wiring diagram that derive from the three cardinal sins. Because solutions are best built from a penetrating analysis of the problems they can solve.
- Replace the PR system with constituencies
It took the EFF’s advent in Parliament to really ignite the National Assembly’s oversight role. For two decades the Legislative branch slumbered while the NEC usurped this role. But the NEC is nowhere mentioned in the Constitution, which constitutes Legislative, Judiciary and Ombudswomen-and-men to try to contain the appetite for power that is always a temptation of Executives (“power corrupts and absolute power corrupts absolutely”). But those 25 young MPs in red overalls changed all that! The term “rumble in the jungle” switched from boxing matches in Kinshasa to SONA’s in Capetown!
Then suddenly we started to see some of the Parliamentary Oversight Committees grow some adult teeth. Some parastatal boards and senior managers were even fired. There were even repeated No-confidence motions until a challenge was made to put one of these to a secret vote. This really put the cat among the pigeons!
It brought to light that parties expected MPs to vote along sectarian lines – on auto-pilot. But even some parliamentarians questioned this assumption. Voices were saying that they should vote by their conscience – or on behalf of the constituency that they represent. This brought to light that constitutionally speaking, the ruling party’s Caucus in Parliament is paramount to its own internal structures like the NEC.
The fundamental question is how to apply the brakes, when the Executive branch steps too hard on the accelerator?
A rogue president can only be controlled by a Caucus that is at arm’s length from the party. Otherwise there are two centres of power. That is how this rogue president got away on us.
One election issue in 2019 should be whether to retain this PR system, or replace it with “ridings” that elect an MP for that geographical constituency. This takes power away from the party, and to my way of thinking, gives that power to the people. At ground level.
Vanguardism is a socialist relic. It is time for voters to realize this. It gives rise to rogue presidents and run-way trains.
- Re-think whether we even need provincial governments, and if we do, how they are elected
We elect national Parliament and we have municipal elections. But our provincial governments are basically there to reinforce the Executive branch. They are not elected separately.
Provincial legislatures are semi-autonomous because they elect their own Premiers. So if a No-confidence motion does succeed one day, in the National Assembly, and the whole Cabinet is swept away, the provincial Premiers will remain. This shows the reality – that they are really there to stabilize the Executive branch’s hold on power.
We have seen provincial budgets being used to fund campaigning in the national elections.
Is South Africa big enough, in a world with airplanes and Internet, to need three levels of government? Can we afford it?
If you really want to get rid of the crony capitalism model, here is where to start.
Even the factionalism that threatens to tear apart the ruling alliance can be seen splitting provincial governments apart first. That fire could spread? Provincial governments are like the reserve fuel tank on off-road vehicles. If you get lost in the bundu, don’t worry, there is a back-up there for you.
If we do need this middle-level of government, then why should we not elect it too? This gives voters the chance to hedge their bets. They can put one party into power in national politics, and opt for another party provincially. This would go a long way to interrupting “state capture”. Not just to exposing it like the Public Protector can do, or to correcting it like a Judicial Review can do, but to preventing it or at least diminishing it. Structurally.
By the way, we also have district-level governments so there are really four levels, not just three. Some streamlining is really needed.
- Get Tribal Courts functioning in the tribal authorities
Now we come down to where the rubber meets the road. Our local municipalities have large geographical areas within them that are still administered by “tribal authorities”. Chiefs are not elected, as they come from royal lineage. This retains the treasured customs and practices of local culture.
Why is a king in jail? Because these tribal authorities were over-loaded with several layers of responsibility. They had to rule and enforce customary law at the same time. The long-awaited legislation on Tribal Courts has languishing in Parliament for years.
How could you run a town or a city without having a court or a jail? How can you expect the Mayor to also be the Magistrate? So why are Tribal Councils expected to act as interim Tribal Courts as well?
This is what creates the conditions for the rise of crime syndicates, protection rackets, gang warfare, and what the SACC has called “a mafia state”. This is different from state capture, but related. Because these syndicates spread out their tentacles into the local police precincts, the prosecutors, into Home Affairs, Social Services, etc. One hand washes another. Kick-backs fly around in all directions.
When Police Minister Fikile Mbalula laments the “rogue elements” in the police he makes it sound like they are mavericks. They are not smart enough – or brave enough – to operate on their own! They are payrolled by the crime bosses. They are “on the take”. So they themselves are running scared. They do not enforce the law, they accept bribes and they are the foot-soldiers of state bullying.
Magistrates should be in charge of their courtrooms. But all too often, the Prosecutors call the shots. They can even tell Police officers to stop investigating cases, and thus they are rewarded by the crime bosses. Mafia “dons” come to be more feared that SAPS station commanders. These are not rogue elements, they are the operational reality at ground level – because of the absence of Tribal Courts. Indunas cannot cope with a web of relationships that has one foot in the tribal authority and the other foot into captures state institutions. How could municipal courts possibly keep up with all the social, cultural and business nuances of an African community? Disputes cannot be administered; they need to be judged. Tribal authorities without tribal courts is a recipe for the emergence of a mafia state.
In summary, there are solutions to our problems. But they are not emerging because it pays those who are currently benefiting most, to stick with the status quo. It will take some imagination and innovation to get these solutions onto party platforms so that the Electorate can choose the Way Forward that it likes best. The future of South Africa is far too important to leave in the hands of politicians. The people must govern.
Desmond Tutu Centre for Leadership
writing in his own capacity