The cadres and the constitution

Paul Hoffman responds to Koos Malan's bleak assessment of the current situation

The analysis by Professor Koos Malan, a constitutionalist to his fingertips, on the current political trajectory of the country requires some explanation and interpretation in the form of a gloss on his views published on Politicsweb on 13 March 2018.

As SA emerges from the darkness and drought of the Zuma years, hopes of rainfall and sunlight (without which no rainbow is possible) during the Ramaphosa led administration would seem remote on any analysis of the views expressed by the learned professor.

The declaration of the drought as a natural national disaster is mirrored in Malan’s gloomy prognostications prompted by the debate over amending the Constitution to accommodate what is called “expropriation without compensation”.

Many voters who supported the ANC of 1994, then a “broad church”, regarded the Constitution as the culmination of the struggle of the people for their freedom and dignity. This support may have been symptomatic of their naïve liberalism. Many, also within that broad church, those at or closer to its centre of power, regarded the terms of the Constitution as no more than a temporary compromise with the Afrikaner nationalists or the “white minority”, one which should be regarded as what they termed a “beachhead” on the road to the realisation of the aims of the National Democratic Revolution with its notions of hegemonic control of all the levers of power in society.

The ANC of 2018 is not the same body it was in 1994. Many of the stalwarts of the struggle, notably Kadar Asmal, who in October 2010 publicly called for the “scrapping” of the NDR he had supported earlier, have passed away. The ANC of 1994 was able to accommodate both Julius Malema (later its youth league leader) and Mosiuoa Lekota (later its chairman); today they both occupy very different positions on the opposition benches. Malema was expelled by the ANC in the Zuma years and, since July 2013, he leads the radical EFF.

Lekota resigned after the 2007 Polokwane conference of the ANC at which he was booed, to form the more moderate COPE – a party opposed to the confiscation of some land under the guise of expropriation without compensation (the ANC position) or the nationalisation of all land (apparently the EFF position). Malema has the effrontery to label Lekota “a historical mistake” using the privileges of parliament to do so. Their current differences demonstrate the breadth of the “church” from which they come.

Neither the National Party nor the ANC had any pre-1994 liberal track record. Yet the Constitution they crafted is, at least prima facie, a liberal document with no particular political ideology other than some vague social democratic leanings.

The National Democratic Revolution, to which the ANC, SACP, Cosatu and the EFF subscribe, has a value system which is bent on securing hegemonic control of all the levers of power in society. The deployment of loyal cadres of the revolution in the public administration (which is both unconstitutional for its violation of Section 195(1) of the Constitution and illegal), in the business sector via BEE schemes, at universities and in the professions is the means to the ends of the revolution. In this deployment process, diversity is eschewed; loyalty to party, not country, is promoted; non-racialism is debased with notions of “representivity” laced with naked African nationalism. The requirement of the Constitution that the judiciary and public administration be broadly representative of the population has morphed into demographic bean counting for the entire working population.

The rights of individuals are not respected, protected, promoted and fulfilled, as is required in the Bill of Rights, instead the capture of the state, the looting of its coffers and the undermining of its economy proceeds apace toward wall-to-wall junk status or worse. The appalling poor levels of service delivery to the poor indicate the true priorities of the revolutionaries.

Fealty to the revolutionary cause is used to justify a multitude of sins against the state, the minority groups, the Afrikaans language speakers and the liberals. The rule of law is regarded as an unnecessary foreign idea and the separation of powers sinks without a ripple below the tide of hegemonic striving by the apostles of the revolution. The beachhead has been well established and what is called “the balance of forces” in NDR-speak has shifted considerably since 1994.

Professor Malan, who teaches constitutional law at the University of Pretoria, has exposed the agenda of the revolutionaries in an essay that oozes his disenchantment but does require a gloss.

He is quite right to argue that it is up to civil society to recognise the revolutionary double-speak for what it is and to work to persuade those, perhaps unwittingly, sucked into revolutionary activities of the many advantages of constitutionalism over the revolution.

One of the major lessons of the post 1994 era has to be the demonstration of the unsustainability of the revolution that is pursued by the cadres in place, from the president down to the lowliest branch level volunteer. Both the proposer and the seconder of the motion which led to the presidency of the current incumbent called him a revolutionary leader.

As recently as 2014 he stoutly defended the constitutionality of revolutionary values when he criticised former President FW de Klerk for complaining that he “did not sign on for the National Democratic Revolution”. Now he supports the EFF motion regarding the amendment of the self-same Constitution to accommodate confiscation of land under the guise of expropriation without compensation.

The revolution is not sustainable because there is a finite limit to the resources of the state, as currently configured, whether in government departments or in the state owned corporations, available for looting. The arms deals, according to former ANC MP Andrew Feinstein, who should know and has no reason to lie, paid for the 1999 election campaign of the ANC; the Hitachi Power Africa deal was a fat cash cow but saw Hitachi fined in the USA and the kickbacks from the Zupta era have long been spent or squirreled away.

The capacity of the state to accommodate the revolutionary agenda is rapidly waning and the spectre of failed statehood haunts responsible and engaged citizens. Any proper analysis of the income of the ANC would reveal a multitude of sins and political indebtedness.

The gloss on the Malan essay relates to the manner in which the three branches of the state have gone about dealing with corruption, the lifeblood of the revolutionaries. The executive received an instruction from the Polokwane conference of the ANC in 2007: “Urgently disband the Scorpions and transfer the investigative personnel to the police”, the cadres cried. The Scorpions were an effective and efficient unit in the prosecution service. They were hot on the heels of too many ANC big-wigs including Jackie Selebi and Jacob Zuma.

Detailed and persuasive argument on behalf of Bob Glenister, who in 2008 stood up against the dissolution of the Scorpions, to the effect that it would be irrational to disband because no legitimate purpose of government could or would be served by so doing, fell on deaf ears in the unanimous Constitutional Court, which dismissed his effort to impugn the scheme before it was started.

In 2011, by a majority of only 5 to 4, the narrowest possible majority in the Court, Glenister was able to persuade the Court to impugn to constitutionality of the legislation creating the Hawks, a powderpuff police outfit that was supposed to succeed the Scorpions. The legislature was ordered to make the decision “of a reasonable decision-maker in the circumstances” in amending the structure and operations of the Hawks to make them constitutionally compliant.

The amending legislation, passed at the last possible moment in September 2012, was assailed again by Glenister and by the Helen Suzman Foundation. Glenister argued that “the circumstances” of the dysfunctional Hawks, the mismanaged police and the corrupt executive branch of Jacob Zuma’s government were such that no reasonable decision-maker would, in the circumstances, locate the premier anti-corruption entity within the police and under the control of the executive and therefor Zuma himself.

The Chief Justice described this line of argument as “odious political posturing” and declined to engage with the detailed expert reports filed, instead striking them out as irrelevant and vexatious material. Some tinkering with the deck chairs on the Titanic was engaged in, but the Hawks remained in the police and under the control of the executive, where they have languished to this day, ever less productive. Lamentably the Hawks were even pressed into service to persecute a sitting cabinet member, Pravin Gordhan, whose attitude to financial management of the state was getting in the way of those with greater attachment to the revolution.

How different SA would be today if the Scorpions had received the protection they deserved from the courts. Zuma would have gone to jail after a fair trial in which his former financial advisor, Schabir Shaik, who was sentenced to 15 years imprisonment for corrupting Zuma, would have given evidence. The Zuma two term presidency would not have happened, the Guptas would not be on the run, the cupboard at the fiscus would not be as bare and the delivery of services to the poor in accordance with the promises of the Bill of Rights would be much further advanced than it is now.

Had the legislature made a conscientious effort to implement the judgment of 2011, Glenister would not have had to return to the Court to be accused so unjustifiably of “odious political posturing”. His evidence turned out to be no more than mild advance publicity for the #Guptaleaks and the capture of the state, made possible by the weaknesses and partial capture of the Hawks. Their weak structures and compromised operational capacity stand in mute testimony to the destructiveness of the revolutionary agenda of the ANC.

It is a pity that Malan does not make reference to this saga in his otherwise comprehensive analysis of the sorry state of affairs on Constitution Hill. [He also has it wrong in relation to the Abrahams affair: the Constitutional Court has not yet ruled on his fate save for allowing the urgent hearing of an appeal in which judgment has been reserved.]

Malan furthermore misses an obvious point in the Nkandla case. Over R246 million was spent by the state on the Zuma homestead. The Public Protector ordered, in binding fashion, that all non-security expenditure should be refunded by Zuma. When the Chief Justice had finished his pontifications in the matter, Zuma was required to pay back less than R8 million; surely a massive miscarriage of justice which none of the parties involved in the case has had the courage to address.

It is true, as Malan argues, that the leaders of civil society, the faith based organisations and the business sector have a duty vigilantly to guard their freedom. As more and more ordinary folk come to the realisation that they are voting against their own best interests at election time, the chances of a resurgence of the tenets of constitutionalism and the rule of law will improve.

The country may yet emerge, older, wiser and poorer from the dark night of the pursuit of the national democratic revolution. Better still, those driving the revolution should seriously consider abandoning it now. It’s time is done. Those who doubt that this is so should study a “google by night” photo from space of North and South Korea.

Paul Hoffman SC is a director of Accountability Now.