The professor and the police minister

Paul Trewhela writes on the clash between Kader Asmal and Fikile Mbalula

When the tensions and conflicts within civil society grow too great, and law and parliament and other agencies of civil society are not able to find a resolution for them, then the state grows into a bludgeon, or club, with which to batter down civil society.

It is as if all the energies within the society, which can no longer find a means of co-existence, become concentrated instead into a fist, which tries to force some kind of unity or coherence upon the whole ungovernable mass of warring interests.

This appears to be taking place in South Africa today.

A state of force was the traditional means by which South Africa was governed until the end of the apartheid period. In this sense, it is by far the most deeply grounded, historical and "native" form of government of the society: in a sense, its true face, or most profound reality. Parliament was confined to a small minority of the society, and this determined the nature of the legal system. Over this long and formative period of South Africa's history, the state was quite explicitly the instrument of a minority interest, acting as the controller of the whole. This is what South Africa was used to, irrespective of the manner in which this state power was used, or the resistance which it summoned up, and which eventually overwhelmed it and brought about its end.

In that sense, as in Russia, or China, despotism has a long historic logic in South Africa, and the constitutional form - attempting to represent the interests of a much wider remit of society, reflected in agreement upon a Constitution - is historically much less securely grounded: even, perhaps, an aberration. Despotism is the dominant historical practice in South Africa, while constitutional government remains a recent and still relatively untested experiment, no more than 15 years old. There is a utopian side to the Constitution of 1994 and its institutions: an element of wishful thinking, or prayer, or belief. On the one side, the historic brutal reality. On the other side, hope - but hope with no ancient groundwork in the historic practice of the society.

This hope was embodied between 1990 and 1994, and for some years afterwards, in the promise of the African National Congress, with its call to "we, the people of South Africa, black and white together equals, countrymen and brothers."

That promise, which suggests the promise of constitutional government, now appears to be in question, and from within the ANC itself. It is given sharp reflection in the altercation - one cannot call it a debate - between two important representatives of that promise, which came into government (and authority in the state) in 1994, a promise that is now falling apart.

Appropriately, this falling apart of the ANC as it represented itself in 1994 is now personified, at one end, by a draughtsman and founding father of the Constitution, a man of law, and at the other end: by a minister of police.

South Africa has a long history of falling apart between the men of law  - the Chaskalsons, the Ismail Mohammeds, the Dumisa Ntsebezas - and the police power, so to some extent this falling apart feels like...old times.

Professor Kader Asmal is 75, while Fikile Mbalula (the deputy minister of police) is 38, so it is appropriate to acknowledge that Professor Asmal has been a member of the Congress Movement of the ANC for longer than Mr Mbalula has been alive.

It was an extraordinary and telling moment for the ANC when Asmal - a former professor of law, and drafter of the Constitution - told the Cape Town Press Club on 19 October: "The new administration [of President Jacob Zuma] is referring to the militarisation of the police." Referring to the Deputy Minister of Police and former ANC Youth League leader, Professor Asmal noted that Mbalula had "said we must militarise the police. We spent days and days in 1991 to get away from the idea of a militarised police force. Extraordinary."

Mbalula's project would mean, Asmal continued, that the national commissioner of police is "going to be 'Generalissimo' or 'Il Duce' or Field Marshal", should the ranking system of the police become re-militarised, as it was in the apartheid period.

"Il Duce" was, of course, the founder and leader of the first fascist state, Benito Mussolini. "Generalissimo" was an accolade of the not significantly less fascist Francisco Franco, who ruled Spain as a one-party state for 35 years after his victory in the civil war, which had culminated in mass executions.

Asmal's concern here is clearly that he believes that government in South Africa is drifting towards a more despotic form of rule. He could not have been more plain. According to The Star, he said it was "remarkable how the administration's 'political memory' had failed, hinting it was showing signs of re-establishing apartheid-era security organisations.

"'We have a minister of intelligence now called the minister of state security. Sjoe! Bureau of State Security. BOSS it was known as,' said Asmal. 'It is remarkable how political memory totally recedes into the background.'"

In a subsequent interview with Sello M Alcock of the Mail & Guardian Asmal acknowledged that the government's proposed militarisation of the police, as articulated by Mbalula, was because of the government's "inability to answer this legitimate public demand to deal with robbery and acts of violence", but that its response was "very dangerous". The ANC had "spent hours, and days and days, in 1991 and 1992 on this issue and in the Constitution we tried to make a disjuncture from the past. Names and titles and appearance must come into that because the police were an army of occupation."

Mbalula's response to this critique coming from a fellow party member and former minister in ANC government was no less extraordinary, and no less telling (see here).

Asmal's comments, he retorted, were the "rumblings of a raving lunatic" coming from the "rubbish-bin of history": the "doomsday theory" of a "disgruntled individual", a "messiah", a "latter-day Don Quixote whose ravings do nothing for our movement and our country, but rather make us wonder if he is really not doing others' bidding."

There, in that last phrase, were the undertones of what in the ANC camps in exile used to be known as the "internal-enemy-danger-psychosis", with its menacing assaults on the bearers of a different opinion as if they were "enemy agents". Doing others' bidding? Which others? Who, in this extravagant language, is the deputy minister - a minister of government, a minister of police, no less - actually talking about? Does it not suggest that the professor's concern about a climate in government, in which Il Duce might have felt a little home.., might have perhaps some justification?

In this context, one must disagree with Setumo Stone (see here), for whom "this particular squabble...only represents the tendencies of a generational clash...."

That is too bland. It is worth mentioning here that while Professor Asmal earned his own living over decades in the real world of work as a teacher of law, Mr Mbalula is a professional rhetorician, with minimal life experience of independent employment. Almost his whole adult formation has been that of a member of a political elite, which generally earns its living in a manner similar to that of the beneficiaries of Black Economic Empowerment, as described by Moeletsi Mbeki in his book Architects of Poverty (Pan Macmillan, 2009) - that is, at a remove from the creation of real wealth for the society.

For this elite, an ever-enlarged state, with its scope for the feeding of political clients and dependents (as in the former Soviet Union), is its dream. Political cronyism is its lifeblood.

One recalls it was the government in which Professor Asmal was a minister which appointed its own political crony to the post of national commissioner of police, and shielded him for years, only for the commissioner eventually to be charged with corruption. Evidence revealed he had shown a subsequently convicted drugs baron a confidential file on the said drugs baron from the Metropolitan Police in London. There is no surety that public appointees of the Mbalula administration are any less likely to be its political cronies. There is something systemic in operation.

Neither member of the ANC - whether the former Minister of Education and drafter of the Constitution (Asmal) or the serving Deputy Minister of Police (Mbalula) - made reference in this fracas to a recent little fact, reported at some length on Politicsweb: that the leaders of the major Christian churches in South Africa have expressed their horror at an attack on a peaceful settlement of the poorest of the poor which left four people dead and numerous homes wrecked, carried out by local political authorities of the ANC in KwaZulu-Natal, while the police (for whom Mbalula is responsible) not only stood idly by, but arrested, charged and detained the victims while they let the murderers go hide.

Here, in the assault on the shackdwellers' movement, Abahlali baseMjondolo, was a political action worthy of Il Duce. And not a word from the politicians of the governing party, whether from the worthy professor or from his wordy antagonist, the deputy minister of police.

Another step in the historical metamorphosis of the state, as it issues from the constitutional dreams of 1994....

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