Address by Kameel Premhid Legal Researcher at the Helen Suzman Foundation, Friedrich Naumann Stiftung, Brussels, Belgium, September 3 2015
‘South Africa: A Failed State?’
I would like to begin my speech by thanking the Friedrich Naumann Stiftung for this opportunity, and its ongoing support of liberal organisations such as the Helen Suzman Foundation (HSF). Without its generous support, the important work we do would be impossible.
I would also like to thank Frans Cronje. Apart from the excellent work that he and his team do at the Institute of Race Relations (IRR), Frans’ analysis makes my task today so much easier. His sharp analysis about the state of South Africa generally allows me to focus more easily on the rule of law in South Africa, which I will address in a moment.
I would like to begin by making two observations.
Firstly, South Africa is a complex place that requires nuance when it is analysed. I mention this because people, both at home and abroad, tend to get quite carried away. I wonder whether if were discussing Greece or another weak European state, in light of the financial crisis, we would apply this concept as readily and easily.
I mention this because, arguably, those states are worse off in some respects but they escape this kind of judgment. Europeans, Americans, and some white South Africans, do themselves no favours by buying into, and perpetuating, this narrative. There is, seemingly, a double standard and failing to understand what implications it has for the analysis, no matter how right, would be a mistake.
Secondly, what are the factors that constitute a failed state? A loss of territory and a monopoly of legitimate force within it; a loss of credibility in terms of collective decision making; interestingly, an inability to provide public services; and, being unable to interact with other states as a member of the international community. These are precise measures and South Africa meets all of them. It may be very bad at doing so, in fact wholly incompetent at some of them, but it is not a failed state. We should not alter rigorous standards of analysis and intellectual honesty merely because we may not like or agree with those we are critiquing.
Do not get me wrong: South Africa is going through a very difficult period and, if we do not stop the decline, we will become a failed state. But, I genuinely believe that this simmering crisis also presents several opportunities: the pain suffered by the middle class makes them realise they cannot disengage from the political process, as the ANC is being outflanked on the left and right it realises that service delivery is essential to its success and so incentives change, and so on. And, as liberals, our cause must be to guard against an abuse of power as the ANC may try to manipulate its majority to entrench its own position in an unfair way. But, we must also stand ready to support whomever supports and advance our liberal cause.
I propose to discuss the rule of law in South Africa and the HSF’s role in its development in five parts: (1) a brief history of the rule of law in South Africa pre-1994, (2) what this has meant for the rule of law since democracy; (3) what challenges are faced by our institutions; (4) what the HSF does to protect them; and (5) conclude by looking to the future.
Most people know the history of South Africa since 1948 which is when the National Party – the party of Apartheid – came to power. It created a constitutionally legitimate state where rights and democracy could be enjoyed. However, that was formally restricted to less than 15% of the population – the rest enjoyed whatever scraps that came from the white population’s table where providing such sustained its own privilege.
The system created to replace it, then, is the exact opposite. The creation of a non-racial, non-sexist society based on openness, democracy, and the rule of law is more than just creating a better system, it is about creating a system that rectified a lot of the damage its predecessor wrought on the population.
Rule of Law
On the measure, then, our new system is one of the world’s best. We have a very liberal constitution that seeks to empower individuals, through the provision and protection of rights, and constrain the state, limiting its excess but giving it enough room to address historical imbalance. We have achieved world firsts that even the first world struggles with: gay marriage, transgender identity, progressive realisation of socio-economic rights and many others. We have, on paper at least, high standards of governance: a separation of powers doctrine, checks and balances, judicial enforceability.
Even though the promise of the Constitution may remain elusive, due to government incompetence, or in some cases even be undermined by the government itself, does not detract from the rule of law. The challenge we face is giving substance to the promise of the ideals but at the same time having people and parties respect those ideals where their interests are undermined by them. That judges in South Africa can be criticised from both left and right for the same judgment says something.
Much of the work of the HSF relates to the protection of our independent institutions which are under attack. They are important because in our society where the Constitution is supreme, but also where the ANC has such a commanding majority, much of their work ensures that remains the case, even where the ruling party may try to undercut it.
Institutions have been under attack since 1997 where the ANC adopted its now infamous policy of cadre deployment. Cadre deployment refers to the appointment of loyal members – cadres – of the ruling political party to all institutions of state so as to concentrate power within itself. It is a mechanism of state capture. And it is the natural tendency of the ANC which has a Marxist-Leninist history: a belief in socialism and an authoritarian means through which to achieve it. These cadres are crucial because they are expect to put the party first with little or no consideration for what the law or their job requires. All their activity should be geared towards the party’s goals.
Cadre deployment is also used to appoint people into well paying positions. Financial enrichment means your deployees not only have an interest in protecting the party, they protect you. As ANC factional fights get more intense, as various people jockey for position, cadre deployment becomes even more crucial. State money, through salaries or corruption, is used to keep the political wheels turning. The more power you have means more money is needed, and the more money you have the more power it gives you the opportunity to accumulate.
Independence is a foreign concept; and institutions have thus been hollowed out. And, worryingly for liberals, the ANC seeks to achieve this by using the noble and necessary goal racial or representative transformation of key sectors of society as a fig leaf for its more dubious aims. This is worrying for two reasons: on the one hand, it obfuscates and cloaks itself in moral authority it does not deserve; on the other, it denies the mostly black people it deploys to institutions their individual agency, reducing them to their race. And although there have been some good examples where this strategy has backfired but, on the whole, it has proven successful with devastating effect.
Our courts, as the entity which underpins the rule of law thus serving as an important site of potential opposition to the ANC, have not escaped this. In fact, the courts were a deliberate target because of their power to bring the ruling party to heel. The appointment process of judges, though increasingly open and democratic, has also become politicised: candidates are appointed on the false belief that black candidates will automatically be more deferential to the ANC and the executive, whereas white ones will not.
Thus, black candidates are pushed into office and white ones are kept from it; little consideration is given to merit. Note, this is not to say that all black candidates appointed are of lower quality, or that whites ones are necessarily better: in many cases excellent judges from all races and backgrounds are appointed. But, the ANC strategically blocks some of our best legal minds (even black ones) for fear of their politics.
Our crime fighting apparatus has also been subjected to this stranglehold, especially during the Zuma presidency. Zuma’s acolytes who now control the police, the prosecutions service, and the independent authorities who are supposed to monitor them, are all firmly under Zuma’s control. Personnel are appointed for political purposes, incumbents are forced out, golden handshakes are given, and sometimes even controversies are manufactured. The effect is that they are being used to protect the President and those who support him. The 783 charges of fraud and corruption that Mr Zuma faces still have to be addressed in open court.
What is the HSF doing?
On the judicial front, we have live litigation against our country’s judicial selection body. After rejecting the candidacy of one of our country’s foremost legal practitioners on the grounds that to appoint him (a white man) would ‘‘do violence to the Constitution’’ the HSF took it to court for, what we believe, to be a soft quota of the Constitution. This is important: even though we do not seek to overturn anyone who was appointed or get the rejected candidate into judicial office, disciplining the selection body’s thinking about race (which it unlawfully views as a soft quota) will have huge impact in the future.
On the criminal justice front, we have several matters running. After our initial success in protecting our country’s premier crime fighting agency’s independence, we have repeated that same success with dramatic effect. Not only is the HSF’s work able to protect institutions and their credibility but we are increasingly developing the jurisprudence around their office bearers who are being pushed from office.
This work is made possible through increasing funding. Although the HSF’s policy and advocacy work may not attract as much funding – because it is not sexy or politically risky – litigation does so easily because the Constitution is at play. That reflects how important protecting our Constitution is to South Africans, but it may also identify a courage gap. However, that’s for another time.
Even though this may make for bleak listening, there still is hope. Even though the judiciary is under attack it is being even more robust in its response. Even though judges who were considered pliant have proven wholly unmalleable.
The security of judicial office and the goodwill of a few people like the think-tanks represented here has created a critical space where all is not lost and much is being regained. South Africa is not a failed state and if the liberals have anything to say about it, this topic will remain as academic as many of those who tell you that it is. I look forward to your questions.