South Africa

OPINIONISTA: Cyril Ramaphosa gives us hope and despair in equal measure

Could President Cyril Ramaphosa’s letter to South Africa of 3 August be the moment that signals him turning away from the stumbling trajectory of the hopeless ‘national democratic revolution’ and into the light of constitutional democracy under the rule of law? It is so to be hoped.

President Cyril Ramaphosa’s “My fellow South Africans” letter of 3 August 2020 engenders hope and despair in equal measure. Hope that he is, at last, becoming more decisive about the curse of corruption in SA; despair that he is yet to discern that which is necessary to counter the corrupt among his fellow citizens in the manner contemplated by the law.

Pondering the contradictions in his message, it is tempting to cast the President in the role of Boris Pasternak’s Dr Zhivago in his novel set in post-revolutionary Russia a century ago. In David Lean’s remarkable screen adaptation of the story, Omar Sharif plays the part of the good doctor who is tossed about by the vicissitudes of the civil war between the Red and White forces struggling for control of Mother Russia.

The scene which comes to mind is set in the depths of the bitterly cold winter. Zhivago has been dragooned into acting as the doctor to a band of hard-pressed revolutionaries who are tasked with mopping up the last remnants of those opposing the revolution. The group is on the march, hollow-eyed frozen infantrymen forced to move on beyond the limits of their endurance. Zhivago is on horseback among them and the snow is coming down. He stops his horse, lets the last of the foot soldiers pass by and then turns away to free himself from the revolutionary discipline of the cadres. He makes his way to the village in which his gorgeous lover (who can forget him diving into the deep blue pools of light that are Julie Christie’s eyes) waits for him.

Could the letter of 3 August be the moment that signals that the President, like Zhivago before him, turns away from the stumbling trajectory of the hopeless “national democratic revolution” and into the light of constitutional democracy under the rule of law? It is so to be hoped.

The lack of the political will to make better laws is what has been holding back the war on corruption. Very few self-respecting investigators and prosecutors harbour any ambition to join the hollowed-out Hawks and NPA that limp along in the wake of State Capture, infested with “saboteurs” and unable to fulfil their functions properly.

Hope can be gleaned from his clearly expressed anger at the levels of corruption his administration has had to endure and experience in the wake of the pandemic currently reaching its height in SA. All good folk are angry at what the Daily Maverick editorial team correctly describes as a crime against humanity committed by the new crop of “covidpreneurs”. These criminals are those who see in the crisis nothing more than the opportunity to make a quick buck at the life-threatening expense of the beleaguered healthcare workers and those suffering from the virus.

This virus is a plague that has already infected over half a million in our country. Profiting illegally from disaster is indeed the action of scavengers. Profiteers belong behind bars after a swift investigation by well-trained investigators, a skilled prosecution by seasoned prosecutors and a fair trial in an impartial court of law. At present only the judges are up to the task at hand; investigators and prosecutors with the required attributes are thin on the ground in SA due to the ravages of the Zuma-era State Capture project.

One can also hope when he says, as he does, that what is required are “better laws and stronger enforcement, but also political will and social mobilisation”.

The lack of the political will to make better laws is what has been holding back the war on corruption. Very few self-respecting investigators and prosecutors harbour any ambition to join the hollowed-out Hawks and NPA that limp along in the wake of State Capture, infested with “saboteurs” and unable to fulfil their functions properly.

They are under-resourced, not sufficiently specialised and trained to attend to anti-corruption work, lacking in secure tenure of office and they are not independent of executive control, influence and interference. In short, none of the institutions of the criminal justice administration is currently up to the standards set by the Constitutional Court in binding terms in the Glenister litigation.

The failure of the President to recognise that these are the facts that need to be faced is cause for despair. He is indulging in wishful thinking when he says “we have rebuilt vital institutions like the NPA”. He ought to be aware that the new Investigative Directorate in the NPA is a temporary “work-around” attempt at a solution to the problems of lack of investigative capacity in the Hawks. His establishment of the ID, which serves at his pleasure, is of questionable constitutionality. It borders on the delusional to say, as he does, that “we have strengthened the hand of law enforcement to investigate and prosecute these crimes” when in fact the big fish of corruption still swim freely.

The fact that the President ignores the court findings is cause for despair. SA does not expect unconstitutional behaviour of any kind from its presidents; they are sworn to uphold the Constitution. President Ramaphosa, as a draftsman of the Constitution and a trained lawyer, unlike his predecessor, understands the constraints of the Constitution that bind him.

If SA is to turn away from the doomed trajectory of the national democratic revolution, espoused by some in the ANC-led alliance, and toward the more hopeful trajectory of the widely envisaged multi-party constitutional democracy under the rule of law, then the President is going to have to dismiss the members of his Cabinet who have opportunistically embraced the pandemic as their chance for making revolutionary changes. These changes include creeping authoritarianism and centralised controls that by-pass parliamentary oversight and negate all accountability mechanisms between legislature and executive. Irrational regulations abound as the National Development Plan is shredded by the cadres. Nkosazana Dlamini Zuma, the Cogta minister, even goes so far as to publicly suggest “if needs be” the revolutionary idea of class suicide as espoused by a delusional revolutionary theorist called Amilcar Cabral, who was assassinated in 1973. There has never been a class suicide and it is safe to predict that there never will be one.

Those with a “cup half full” mind-set will see in the President’s letter the hope that he is turning his back on revolutionary thought and re-dedicating his administration to the rule of law and to the supremacy of the Constitution. This step will involve a Cabinet reshuffle to discard the revolutionaries, the crooks, the authoritarians and those who do not take seriously their duty to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights.

The President is going to have to come to terms with the notion that he is not entitled to do as he pleases because his presidential decision-making is constrained by the rule of law and the supremacy of the Constitution. In practical terms, this means that, unlike the Zuma administration, his administration recognises it is legally obliged to give effect to the decisions of the highest court in the land in the Glenister litigation. The rulings in those cases are binding on his administration and will remain so until they are changed by the court, not by executive fiat and not by legislation, regulations or proclamations that are inconsistent with the Constitution.

In effect, as regards the war on the corrupt, this means the creation of a single specialised unit that does anti-corruption work and nothing else. The staff will be appropriately trained, independent of the executive, resourced in a guaranteed manner and will enjoy security of tenure of office.

All of these requirements have been laid down by the Constitutional Court in the Glenister litigation. They cannot be wished away and they cannot be contradicted by those who are bound by them. This is what section 165(5) of the Constitution says:

“An order or decision issued by a court binds all persons to whom and all organs of state to which it applies.”

Notions such as “task teams”, “hubs” and now “fusion centres” are contrary to the dictum of the majority of the Constitutional Court in the last Glenister case. The Chief Justice could not have made it clearer:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The “we” to whom the learned Chief Justice refers in the second paragraph quoted above is the majority of the justices of the highest court in the land. What they lay down as the law is binding on those who litigate in our courts. This finding has clearly been overlooked by our exhausted President and his hard-pressed advisers.

This important court finding was drawn to the attention of the President and the public last month in an article published by Daily Maverick. It is high time that the President and his advisers take cognisance of the fact that in SA the multi-agency approach to countering corruption is not on the table; it is not an option open to him and it is unconstitutional behaviour of the kind rife in the Zuma years to espouse the multi-agency approach.

The fact that the President ignores the court findings is cause for despair. SA does not expect unconstitutional behaviour of any kind from its presidents; they are sworn to uphold the Constitution. President Ramaphosa, as a draftsman of the Constitution and a trained lawyer, unlike his predecessor, understands the constraints of the Constitution that bind him. He also knows that his government is bound to implement the decisions on the topic of countering corruption that were made in the Glenister litigation. These decisions were reached after a long, hard fight on each of the three occasions that the matters reached our highest court.

The President, as recently as June 2020, has not closed the door on establishing a new Chapter 9 Institution to investigate and prosecute grand corruption in South Africa. When the idea was first put to him last year he found it “refreshing” and in June he said, “not at this stage”. That was before the extent of Covid-19 related corruption had become apparent.

The hard truth is that the multi-agency approach has not worked in SA, either in the Zuma years or before them. Our best efforts were made by the Scorpions, an NPA unit that had all the attributes now required by the Constitutional Court rulings except the important one of security of tenure of office.

As the NPA has been broken and hollowed out by State Capture, it is a fool’s errand to seek to locate the anti-corruption entity there. The track record of the ID is proof of this assertion: zero prosecutions. The SAPS is not an independent body and the experience with the Hawks indicates that they are not cut out to do anything more than facilitate the Zuma State Capture project. This was done with gusto by turning a blind eye to the corrupt or by persecuting the likes of Pravin Gordhan, Robert McBride, Johann Booysen and Glynnis Breytenbach, all of whom are true patriots.

What is needed is a new body, one that has no baggage and one that is free to develop the esprit de corps that is necessary to counter the corrupt effectively and efficiently. Ex-Scorpions and other patriotic individuals would be attracted to the new body in a way that is simply not possible with the broken NPA or Hawks due to the Zuma-era baggage and “saboteurs” they carry.

The President, as recently as June 2020, has not closed the door on establishing a new Chapter 9 Institution to investigate and prosecute grand corruption in South Africa. When the idea was first put to him last year he found it “refreshing” and in June he said, “not at this stage”. That was before the extent of Covid-19 related corruption had become apparent.

The hope of the new dawn heralded by the electoral success of the President now lies in the prospect of his being able to change his “not at this stage” to “now at this stage” in his response to the proposed establishment of the new anti-corruption body housed in Chapter 9. This location is in order to insulate it from the fate that befell the Scorpions. They were a mere creature of statute; a simple Zuma-led majority ended their tenure of office. Special majorities are required to do the same to Chapter 9 Institutions.

An early announcement that the multi-entity approach is recognised by the President as unconstitutional and the embrace of the establishment of the new Chapter 9 entity will go a long way toward dispelling the despair that the letter of 3 August creates and replacing despair with universal hope for a better life for all, one that is better because it is free of corruption, State Capture, covidpreneurship, kleptocracy and looting. DM

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