The rule of law is being subverted by party high command
Imagine this for the plot of a political thriller set in an obscure country. The former head of police is on trial for corruption. One of the witnesses for the prosecution is implicated in the killing of a businessman who had given financial favours to the ruling party. A new head of national intelligence has just been appointed; he had previously plotted against the head of national prosecutions, and his brother had been convicted of fraud and sentenced to 15 years in jail. The fraudster brother had had dealings with a leading politician, who was then charged with corruption.
After a dramatic factional fight within the ruling party, this politician became its leader. The fraudster was released from jail on the grounds of ill-health, but there were soon reports of his gallivanting about town in fine fettle. The corruption charges were dropped against the politician and he went on to become president of the country. Under his government, the selection of judges fell under the control of the ruling party, and during the interviews prospective judges were subjected to bizarre questioning and racial slurs. During the trial of the ex-head of police, the witness suspected of killing the businessman burst into tears.
The problem with this murky, complicated and unlikely plot is that it is real and set in South Africa right now. South Africans have become so inured to the baleful events unfolding month after month that they might not see the danger mounting before them.
This week, President Zuma appointed Mo Shaik as head of the South African Secret Service. Mo is the brother of Schabir Shaik, who was Zuma's financial advisor before he was convicted of fraud and corruption associated with the arms deal and sentenced to 15 years imprisonment. Mo, himself, was posted as a diplomat to Hamburg at the time when the Mbeki administration re-opened the corvette contract in the arms deal which was subsequently awarded to a German company which awarded a subcontract to a firm in which Schabir Shaik was a partner, and Chippy Shaik reportedly received a 3-million dollar bribe from a German company. Furthermore, Mo, in trying to defend Zuma against possible prosecution by the then National Director of Public Prosecutions, Bulelani Ngcuka, had attempted to falsely malign Ngcuka as having been an apartheid spy.
In this week, too, the trial began of the former National Police Commissioner, Jackie Selebi, charged with corruption and defeating the ends of justice. Glenn Agliotti, accused of plotting the "assisted suicide" of businessman Brett Kebble, is a state witness.
Jacob Zuma faced charges of corruption when Ngcuka, under President Mbeki, was head of Public Prosecutions. However, after Zuma displaced Mbeki as ANC leader, the new acting head of Public Prosecutions, Mokotedi Mpshe, dropped the charges. Schabir Shaik was released from prison because of his poor health - but there were soon reports that he was seen around Durban as fit as a fiddle.
There is a sinister pattern in all of these events: the rule of law is being subverted by the rule of party command. Under President Mbeki, Schabir Shaik was convicted, Jacob Zuma faced corruption charges, and the Hefer Commission defeated Mo Shaik's attempt to smear Ngcuka. When Zuma supplanted Mbeki, Schabir was released, charges against Zuma were dropped and Selebi had to stand trial. It seems probable that if Mbeki were still ANC leader, Schabir would have remained in jail, Mo and Zuma would be charged, and Selebi would be free. Whether you are charged and convicted now depends not on your innocence or guilt but on whether you are in favour or out of favour with the ruling clique in the ANC. That is why the ANC's battle of Polokwane was so vicious. It was not about policy or principle. It was about which faction of the ANC would be in a position to abuse its power, protect its cronies and enrich them -- while abusing state institutions to persecute their opponents. This is the kind of organisation the ANC has become.
Appointments to the judiciary, too, are made at the whim of the ruling party. The Judicial Services Commission (JSC) nominates and recommends candidates for judicial appointments. It has 23 members and is meant to represent legal interests in the country at large: advocates, attorneys, judges, teachers of law and politicians. Using the usual racial rhetoric and abusing the concept of "transformation", the ANC has packed the JSC with party loyalists. For example, four members of the JSC must come from the National Council of Provinces (NCOP). Previously Darryl Worth of the DA had been such a member; but the ANC drove him out and now has all four members.
The JSC's interviewing for judicial positions has become a travesty, without any clear criteria, where racial abuse supplants analysis, and which sometimes degenerating into grim farce. Justice Minister Jeff Radebe seemed to return to the 16th Century when he hectored a prospective judge, Torquil Paterson, on the fact that he was an atheist. Dumisa Ntsebeza, a Zuma appointee to the JSC, attacked Paterson because of his race. The result is that many fine judges will not submit themselves to this travesty, and have withdrawn their applications.
Despite this flawed process, the DA, looked at the list of President Zuma's four new appointees to the Constitutional Court, and approved three. We accept Sisi Khampepe, Johan Froneman and Chris Jafta but we should like the President to reconsider Judge President Mogoeng. This man, in the case of "State vs Dube", failed to recuse himself even though his wife was the prosecutor. In his interview for the Constitutional Court, he came across as unable to explain his judicial competence and admitting his lack of constitutional law experience. The conclusion is inescapable that the ANC must owe him some favour.
For this reason, the DA is also concerned about the reason that Mr Justice Dikgang Moseneke, Deputy Chief Justice, was passed over for the position as Chief Justice of the Constitutional Court.
At his 60th birthday celebrations in 2007, Moseneke is reported to have said, "I chose this job very carefully. I have another 10 to 12 years on this bench and I want to use my energy to help create an equal society. .... It's not what the ANC wants or what the delegates want; it is about what is good for our people." The ANC was affronted by his suggestion that the people were more important than the party, and said his comment "shows disdain for the delegates and highlights the difficulty that many in the judiciary appear to have in shedding their historical leanings and political orientations."
In short, the ANC believes the judiciary is there to serve the interests of the ruling party elite and, if any judges think it is there to serve justice and the people, their career paths are likely to be curtailed.
The contrast between the DA and the ANC was brought in sharp focus this week. The DA believes in the rule of law, equality before the law, and appointment of judges on their ability to represent and serve the people justly, impartially and competently. The ANC believes in the rule of the party, deference to the party elite and appointment of judges to serve their political masters.
In the trial this week, Glenn Agliotti, witness for the prosecution, suspected of being part of the killing of Brett Kebble, began crying in court because he had to testify against his old friend, Selebi. It would be better if all South Africans paused to shed a tear over the threat to our judicial system.
It would be even better if they joined the DA in fighting to establish its independence and integrity.
This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance, October 9 2009
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