The threat to South Africa's democracy runs deeper than state capture

A protest in South Africa against housing shortages.
EPA/Kim Ludbrook

A recently released report written by a group of South African social scientists, “Betrayal of the Promise”, considers the widespread capture of state institutions by a network linked to President Jacob Zuma and declares it “a silent coup.”

The reference to a “coup” might seem odd given that the democratically elected head of state is described as its patron. But South Africa’s current predicament is not primarily about the individuals in specific offices. Rather, at its root, it’s about a crisis in the country’s democracy.

The report by the academics proposes a dividing line between those committed to social transformation – as set out in the country’s constitution – and those who aren’t. The Zuma-aligned camp is alone on the latter side of this line.

But, even though they don’t have much else in common, almost all the country’s key political alignments – political parties as well as social movements – share what I call a naive view of the state. They think that state institutions must be captured by one or another sector for state action to achieve a desired goal.

This is an analytical and political cul-de-sac. South Africa’s democratic crisis is a result of the unfinished project of remaking institutions first shaped under colonial and then apartheid rule. The challenge now is how to rebuild them so that they have both popular legitimacy and the capacity to achieve the promise of the country’s constitution: to create a more equitable society.

I describe this dominant view of the state as “naive” because it treats institutions as terrain for narrow manipulation by one group or another. In fact the crisis shows that South Africa doesn’t yet have, and desperately needs, effective institutions with the capacity to respond to broader society.

Various views

Zuma’s political allies in the African National Congress (ANC) insist that to reduce the power of “white monopoly capital”, the state must empower black industrialists by transferring public assets.

They envisage this being primarily through state controlled concessions, such as mines, as well as contracts with state owned enterprises such as the power utility Eskom and transport group Transnet. This is complemented by vague pronouncements around land redistribution.

The opposition Economic Freedom Fighters (EFF) take a vanguardist position, arguing that state power can provide for the working class by nationalising private assets and redistributing land.

The Democratic Alliance, the largest opposition party in parliament, advocates the privatisation of public assets. It insists that this will subsidise public projects, although it’s not clear how.

For their part, civil society organisations seem to realise that state institutions, free from narrow private capture, are essential for a more capable state. They are beginning to focus much more attention on the integrity and independence of state institutions. Some are focusing on issues of government transparency and privacy, others on resisting attempts to compromise key ministries, especially Treasury.

But civil society has little influence or connection to formal politics. Trade unions are split. Middle class professionals in the activist sphere have lost their links with trade unions and urban social movements, which proved such a powerful alliance for democratisation in the late 1980s and early 1990s. Protests in urban townships are frequent but localised. They are rarely linked to any city wide agenda or movement.

A failing democracy

Institutional “capture” is both a symptom and a cause of the country’s broader democratic crisis.

The constitution contains some of the most extensive socio-economic rights anywhere in the world. But inequalities have been extraordinarily durable.

Now the constitution itself is increasingly under attack. This shouldn’t be surprising given that many state institutions, especially at the local level, aren’t effective and, therefore, cannot realise the rights set out in the constitution.

Democratic South Africa’s challenge remains how to find a way to remake institutions so that they’re capable of ensuring the rights guaranteed by the constitution are realised.

Comparative insights from Brazil

In this it has lessons to learn from Brazil, which has similar constitutional guarantees. Despite recent political challenges, Brazil has managed to decentralise important parts of administering redistributive programmes. This has led to more capable institutions, especially at the municipal level.

Since 1988 when a new constitution came into force, Brazilian cities have used large federal government revenue transfers for redistributive ends such as health, education and housing.

On top of this, Brazilian cities have a long history of participatory councils, from city wide budgeting to specific policy sectors such as housing and health. In large cities like Sao Paulo, many of the social movements for housing, which helped drive the campaign for democracy in the 1980s, have remained important political and social movements. They’ve helped reconstruct Brazil’s local state institutions, which were previously a global example of weak and clientelistic politics.

Cities like Sao Paulo now have institutions that are able to make big gains for poor people in sectors such as transport, housing and sanitation.

This suggests important lessons for how to address South Africa’s democratic crisis.

Recapturing institutional legitimacy

A positive sum, redistributive agenda is the central promise of the South Africa’s Constitution. This is also a requirement for the success of any dialogue between all sectors of South African society as proposed by the authors of Betrayal of the Promise.

A debate over policy is going to be extraordinarily difficult while the country’s institutions continue to lose legitimacy. This means that a focus on the capture of state institutions will need to go hand-in-hand with a focus on how they can be refashioned to be more responsive to society.

South Africa awaits the movements and parties with the ideas and organisational strategies to take such a vision forward. Until then, the country will struggle to move beyond today’s anti-democratic precipice.

Benjamin H. Bradlow, PhD candidate, Department of Sociology, Brown University

This article was originally published on The Conversation.

How we can rid ourselves of State Capture and put Zuma in Jail

he Public Protector’s (PP) office should be abolished. Under Thuli Madonsela, the office did brilliant work, even under difficult circumstances and with a lot of obstruction from the ZANC side and the office deliberately being kept underfunded by the ZANC.

That is the reason that Thuli’s State Capture investigation started late, she did not have money to start it. Eventually Pravin Gordhan, as Finance Minister, made money available and she could start. She did not have sufficient time before her term ran out and therefore she made a brilliant move.  

She recommended a full judicial commission of inquiry, chaired by a judge appointed by Judge Mogoeng, not by the main suspect in the investigation, the President of the country.

But as long as Thuli Madonsela was in her office, I don’t think a single significant recommendation was ever implemented and accepted without a fightback and delaying tactics by ZANC. So she investigated, made the correct findings and recommendations, just for that be ignored and not implemented.

People approached the PP, as she was the only trustworthy person in government.

The PP’s office is not actually supposed to do criminal investigations, that is the responsibility of the Police and NPA, but again, those institutions are captured by the very same people responsible for the state capture of SOE’s, which is nothing else than state criminality.

Busisiwe Mkhwebane has now turned the PP’s office into an extension of the Saxonwold Shebeen. Yes, she will tell you that she is not a Zupta puppet, but she is. She is a former spy, and spies act with a sleight of hand, undercover and trying to deceive you all the time. But a puppet she is.

Take Mkhwebane’s finding on the Absa lifeboat.

Mkhwebane is actually recommending state control of banks. She is proving that she is a Zupta puppet on a string because what she is actually trying to do is giving the Zupta cabal access to a State bank, because the commercial banks cut off banking facilities to the Guptas, due to massive criminal activity by them.

So what to do? Get disheartened and accept that things will inevitably go the way ZimBOBwe went?
Not by a long shot. Obstacles like these can be overcome. We privatize the PP’s, Police’s and NPA’s job out to those who have the ability and the willingness to do the job.

OUTA and Afriforum have stepped up. OUTA has begun hiring forensic accountants and lawyers, and Afriforum is supporting Gerrie Nel’s private prosecutions team, which will be strengthened by another two senior prosecutors from the NPA soon. An ex-commander of the SAPS Serious and Violent Crimes unit, Genl Sharon Schutte, is heading up investigations for the team. Paul O’Sullivan and his assistant, lawyer Sarah Jane Trent, are assisting as well.

It can be done, on one condition, that they can be crowdfunded. So join me in these efforts. I have joined both Afriforum and OUTA as a contributing member. You only contribute what you can afford, and at the same time, you become and active citizen. Remember, it is also important that these organizations have a lot of members, to show they have broad support.

You can become part of the crowdfunding and stop the looting of the State, or you can do nothing and get a continuation of the looting and as a result, pay higher taxes and get diminished retirement funds when you retire one day.

Don’t think you can escape the effects of the wholesale looting of the State. We have already hit junk status, with the highest unemployment ever. More unemployment leads to more crime and murders.
So let’s unite and do this. Let us do what has to be done.

Opinion by Daniel Sutherland
Published on South Africa Today – South Africa News

Why is the KZN healthcare system collapsing

When public health institutions cannot assist cancer patients due to lack of essential equipment and lack of doctors, it means we are in trouble. The Kwazulu-Natal Healthcare system is collapsing from the ground up.

Two Oncology specialists were left in KZN, and as of last night, one resigned. It means cancer patients will die or they will have to find another hospital in another province. There is no money, no doctors no equipment and people who need to take regular cancer tests, are at risk. It means people will not be diagnosed early enough to receive treatment.

There are reports that only one doctor is on duty for up to 26 hours on weekends, without a break, and with up to 30 patients waiting at any one time. These patients often have to be left waiting for excessively for long periods of time (many hours), as the same doctor gets called to emergency admissions that take higher priority.

The doctors cannot work under the challenging conditions in public health services and will probably move into the private sector. There is at present, likely to be about 90 percent of physicians working in the private sector, and for many South Africans, access to these doctors is impossible. If one does not have a medical aid, which is expensive, there is no access to specialist treatment. Thus the majority are at the mercy of government hospitals which cannot assist the needy.

Huge sums of money are wasted on futile attempts at repairs that only last two weeks, instead of just replacing this vital equipment. In the outpatient’s departments most life-saving equipment does not exist, the little doctors have to work with is old and broken and practitioners are facing an impossible situation trying to save lives.

During May, staff protested over the collapse of health services in KZN – “A memo, addressed to MEC for Health Sibongiseni Dhlomo, titled “Collapse of Health Services in KZN.” lists 16 problems, such as a shortage of staff, caused by “unfunded, frozen and abolished posts”, a lack of jobs for medical school graduates doing their community service, an overtime policy that SAMA and unions have not agreed to, failures with equipment procurement, shortages of supplies, problems with medical records, and poor management.” Read the story – Medics protest as KZN health care system collapses

And in June reports surfaced of more oncologists leaving the public health care system – Read No oncologist in Durban

Published on South Africa Today – South Africa News

There are dangers behind giving South African MPs the right to a secret ballot

South Africa’s Chief Justice Mogoeng Mogoeng making a ruling on secret ballots in Parliament at the Constitutional Court in Johannesburg.
Siphiwe Sibeko/Reuters

Marius Pieterse, University of the Witwatersrand

It happened as many suspected it would. South Africa’s Constitutional Court ordered that, despite the Constitution’s silence on the matter, the speaker of parliament has the constitutional power to prescribe that a vote on a motion of no confidence in the country’s president may take place by way of a secret ballot.

It also found that Baleka Mbete, the speaker of South Africa’s parliament, was mistaken when she decided earlier this year that she did not have this power. The court set aside her decision.

But the court didn’t go as far as the United Democratic Movement, and other opposition parties that had challenged Mbete’s decision, had hoped. It would not force Mbete to order a secret ballot in the upcoming motion of no confidence in President Jacob Zuma. It felt that this would go against the separation of powers, by unduly prescribing to parliament how it should carry out its functions.

Accordingly, the court ordered Mbete to retake the decision on whether to allow the secret ballot. It emphasised that in doing so, she must act rationally. It ordered that she has to take account of all surrounding circumstances, including the possibility that MPs may feel intimidated by their political parties to vote in a particular way.

The court emphasised that parliament has a constitutional obligation to hold the executive to account. Members must therefore act in accordance with their constitutional obligations, their consciences and their oaths of office.

From a constitutional law perspective, the court’s stance is undoubtedly correct. As always, it has shown great respect for parliament’s power to guide its own processes. At the same time, the court has clarified the extent of the speaker’s discretion in a way that aims to ensure that she, and parliament as a whole, exercise their powers in a way that is consistent with their constitutional obligations.

What the opposition asked for was always going to be a long shot. Wanting a court to order the speaker to exercise a discretion that is legitimately hers alone, before she has even applied her mind to the question, would involve a real stretch of the separation of powers.

So, what will Mbete decide? And will her decision, if it was to go against a secret ballot, be challenged? More pertinently, ought it?

Competing notions of accountability

Many believe that a decision not to hold the vote secretly would simply be a thinly veiled attempt to shield Zuma from accountability. Such a decision would therefore, if not irrational and unconstitutional, at least be unconscionable. But, as the Constitutional Court acknowledged, there are different, and perhaps competing, notions of accountability at stake here.

On the one hand, the dominance of the African National Congress (ANC) in parliament and its own internal structures of political accountability have seemingly compromised the constitutionally designed accountability of the executive to parliament. An open ballot could only exacerbate this.

On the other hand, a secret ballot would sacrifice MPs’ accountability not only to their party peers, but also to the country’s citizens.

How can we be assured that an ANC politician who votes differently under a secret ballot than she would under an open one is doing so based on her conscience rather than on some other, less honourable whim? What is to stop a cynical group of Democratic Alliance (DA) opposition politicians from voting in favour of retaining Zuma because they believe that his continued scandal-prone presidency would better serve the their chances in the 2019 election? Would it not make it more difficult for such politicians to subvert the public interest in these ways if the citizenry, and their fellow MPs, could see them?

Perhaps South Africa’s current political crisis is so dire that these seemingly far-fetched hypotheticals don’t matter. Perhaps they represent bridges the country should cross sometime in the future.

But making rules (and rulings), especially for the naughty kid in class, is seldom wise.

South Africa is moving into an era in national politics where the ANC is not nearly as dominant. This means that coalitions will be the order of the day. In this new era, one or two votes in a parliamentary motion may make all the difference. Will the country still think secret ballots were such a good idea?

Danger of destabilisation

Early in June DA mayor Michael Holenstein was removed by a motion of no confidence through a secret ballot in Mogale City, west of Johannesburg. Both the motion and the secret ballot were called for by ANC councillors. The ballot was granted by the ANC-affiliated speaker.

The DA and their coalition partners unsuccessfully opposed the secret ballot. As it happened, the secret ballot provided the opportunity for one of their own to betray the coalition and led to the motion being carried with 39 votes to 38.

Near-comical irony and intrigue aside, this saga illustrates all too vividly how the diminished accountability (to both electorate and party-political peers) afforded by a secret ballot opens motions of no confidence not only to a politics of conscience, but also potentially to one of backstabbing and pettiness.

On top of this, governance in Mogale City is said to be suffering as a result of the successful motion. There are fears that service delivery is being paralysed and that the destabilised, hung council may be put under administration.

The consequences of a motion of no confidence in the president will, of course, be far more destabilising. For one thing, Section 102 of the constitution requires the entire cabinet to resign alongside the president, should the motion pass. A member of parliament deciding how to vote on a motion of no confidence in Zuma is therefore also deciding whether to throw the entire national government into disarray, however temporarily.

This might well be preferable over another day of a patently compromised, Zuma-led government. But there is value in ensuring that such a hefty decision is made only after due deliberation, and is made openly and with courage of conviction. If such courage should prove to be lacking in the members of the majority party, should South Africans not be allowed to see this and to think, in turn, about the vote that in a constitutional democracy can and should matter far more: their own?

Marius Pieterse, Professor of Law, University of the Witwatersrand

This article was originally published on The Conversation.

A public protector's job is to make sure people stick to the law - not to change it

Busisiwe Mkhwebane, the public protector of South Africa.
EPA/Nic Bothma

Cathleen Powell, University of Cape Town

South Africa’s Public Protector Busisiwe Mkhwebane has directed a parliamentary portfolio committee to initiate proceedings to amend a clause in the country’s Constitution that sets out the primary aim of the country’s Reserve Bank.

As many commentators have pointed out, the Public Protector cannot order that the Constitution be amended. It is not part of her job and it’s outside her powers.

The Constitution gives the Public Protector the task of investigating

any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice.

The focus of her investigation is thus conduct. This is underscored and fleshed out by the Public Protector Act. The Act empowers her to investigate, among other things: maladministration, abuse of power, dishonest acts or omissions, improper enrichment, and acts or admissions which result in unlawful or improper prejudice to any other person.

In this case, the Public Protector claimed to approach her investigation by asking two questions: what happened? And, what should have happened?

The first is a question of fact. But to answer the second question she notes that the focus moves to

the law or rules that regulate the standard that should have been met by the government or organ of state to prevent maladministration and prejudice.

In other words, it is the law that provides the points of reference which tell her whether the banks and government’s acts or omissions constitute misconduct.

But what the Public Protector wants to do is to change the law itself. She is not satisfied with determining whether the Reserve Bank and government obeyed the relevant, current rules: she wants to write new ones.

Indeed, her recommendation goes well beyond changing individual rules to overturning their very foundation, anchored in the Constitution. She has ordered that a major decision of the Constitutional Assembly, which drew up the Constitution following the first democratic elections in 1994, on a complex matter of economic policy, be thrown out.

This can’t be right.

No precedent

We must not be persuaded that there is any precedent for this. In her “State of Capture” report, the previous Public Protector, Thuli Madonsela, found that members of Cabinet had violated their obligations under the Constitution and the Executive Members Ethics Act by failing to prevent the misuse of state funds to upgrade the president’s private residence.

Part of her remedial action was to recommend that the secretary of Cabinet update the policy to provide ministers with more detailed guidance, and to recommend that the minister of police review the Apartheid-era National Key Points Act. This review was required to clarify the Act’s application and to bring it in line with the Constitution.

There are two major differences between these recommendations and an instruction that a constitutional provision be reworded in a specific manner.

Mkhwebane prescribed the exact wording of the new provision. She said that the clause which currently reads:

The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balance and sustainable economic growth in the Republic.

Should instead read:

The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic, whilst ensuring that the socio-economic well-being of the citizens is protected.

This is quite a different matter. Neither of Madonsela’s recommendation sets out the wording of the new provisions, merely the goal they should achieve. And each is aimed at bringing the relevant provisions into compliance with higher laws to which they are subject – either the Executive Ethics Act or the Constitution itself. And this is because it is the job of the Public Protector to remedy specific misconduct, and the job of Parliament to make laws.

In its judgment on the Nkandla case, the Constitutional Court held that the Public Protector is subject “only to the Constitution and the law”. But she is subject to them. And the Constitution sets out a specific, thorough process for the passing of any law, and particularly a constitutional amendment.

The elected representatives of the people are meant to debate all laws and fashion them into the form they believe is best for the country. If the wording of any law is determined in advance of this process, then the process itself is rendered meaningless. The Constitution’s law-making requirements are discarded.

The Public Protector cannot throw out the Constitution. Her remedial action is therefore invalid.

Effects of the recommendation

If taken seriously, her recommendation has the potential to influence current political debates on economic development in South Africa, supporting the line advanced by groups such as Black First Land First, and reducing the independence of one of the few public bodies which has not yet been tainted by evidence of state capture.

But if this was the intention, it could backfire, because the Public Protector can bring this influence only if she enjoys legitimacy in her own right. She does not, in part due to her hostile treatment of her predecessor and a perceived unwillingness to take steps against President Zuma and his allies.

She laid a criminal charge against her predecessor on receiving a complaint from the president, and then attempted to deny the legal import of her action. Staff closely associated with the former Public Protector or the State Capture report appear to have been forced out of their jobs.

Mkhwebane could have found better ways of proving that she does not have a hidden political agenda than by producing a report which throws her legal acumen into serious doubt.

Her foray into economics is also deeply embarrassing, as she justifies a drastic change in economic policy with eight lines of text, citing no authorities in economics and no evidence that her preferred approach does in fact, uplift the poor.

Her report is likely only to reduce the standing of her own office.

Cathleen Powell, Senior Lecturer in Public Law, University of Cape Town

This article was originally published on The Conversation.