Meaning of the f-word to be a battle zone over the next year

IN A recent interview, Co-operative Governance Minister Sicelo Shiceka raised the question: “Do we need provinces?” and suggested that a definitive answer would be given by the government next March. I thought it significant that his ministry had once enjoyed the title of “constitutional and provincial affairs”. Perhaps its renaming is a harbinger of things to come.
The minister’s speculation, coupled with his demand that “nobody is expected to be out of tune” with the country and its president, brought to mind how central the provinces were to the Kempton Park negotiations, which led to the inauguration of democracy in SA, and how comprehensively the African National Congress (ANC) out-negotiated its opponents on this issue. This was due to both the balance of forces and the burden of our history.
The f-word during the negotiations was not a vulgar expletive, but the politically loaded idea of federalism. Democratic Party (DP) negotiator Colin Eglin — whose party’s central plank was the promotion of a federal dispersal of authority as an alternative to untrammelled majoritarianism — recalled how the Bantustan policy of the National Party (NP) “had given federalism a bad name”. He therefore, during negotiations, tiptoed around the topic by using code: “I tried to avoid using the word federalism in advancing my arguments, preferring to use the cumbersome but less repellent phrase, ‘constitutional decentralisation’” to advance the case for provincial powers in the new constitutional set-up .
Inkatha’s position at the negotiations was the opposite of the prevailing political wind: it wanted a federal SA to give it more power, given its lock on support in Natal. The ANC wanted a unitary state precisely to prevent that eventuality. The case, however, was never properly prosecuted since Inkatha was boycotting the negotiations in pursuance of an issue — the role and place of the k ing — which today, seems remote and obscure.
The NP, which during the negotiations still held the formal reins of power, made a confused and enfeebled fight for federalism. It understood it was likely to be knocked off its national perch of power in the elections, and reduced to a regional redoubt in the Western Cape. But its strategy was far more focused on dividing the spoils of office at a national level through power-sharing than in according the provinces significant, and original, powers. As the most reliable chronicler of the negotiations’ process, Patti Waldmeir described it: “After 45 years of ruling a highly centralised old South African state, the NP seemed to have little idea of what federalism meant, and only a weak inclination to fight for it.”
With the NP confused, Inkatha absent and the DP speaking in code, it was little wonder that the ANC prevailed. Indeed Waldmeir obtained an accurate assessment of the location of power in the new SA from a key negotiator: “Joe Slovo, speaking freely out of exhaustion and drink on the eve of the deal, insisted that the new state would be ‘not remotely a federation ... we’ve managed to give them devolution, without losing control’, he told me with considerable satisfaction.”
Slovo was to die within a year of the establishment of the new order; the NP received in Hermann Giliomee’s apt phrase a “prostitute’s funeral” after the 2004 elections; the Inkatha Freedom Party has been ousted from power in KwaZulu-Natal and the DP has morphed into the Democratic Alliance, but won control of the Western Cape .
But just how accurate and prescient Slovo’s boast has proven to be was on display in Cape Town this week. Provincial Premier Helen Zille — political boss of the only province in the hands of the opposition — was reduced to taking legal advice and writing a letter to the newspaper to explain that the Provincial Commissioner of the SAPS, Mzwandile Petros, refuses to meet with her and the provincial MEC for policing, Lennit Max. Given the agenda Zille had in mind for the meeting, including the allegation that the police had sexed-up the crime statistics in this crime-ravaged province, the commissioner’s coyness was understandable. But, of course, he is answerable and accountable to Pretoria, not Cape Town.
A glance at the exclusive powers which the constitution grants to the provinces yields a decidedly threadbare list. Schedule 5 grants it sole jurisdiction over such matters as abattoirs, ambulances, and culture and veterinary services. But in the areas of delivery, the provinces currently are the public’s interface with both hospitals and schools. Little wonder, then, that when he was minister of national education, Kader Asmal once remarked to me that, in comparison with his provincial counterparts, he felt “like a eunuch in a harem. I have the desire to act, but not the power.”
Interestingly, as the ANC moves to further centralise power, the DA is moving in the opposite direction. Its key parliamentary staff, including national strategist and MP Ryan Coetzee have taken leave of Parliament and relocated to the provincial government and the Office of the Premier.
The battle of the provinces — and the meaning and extent of the “f” word in our constitutional arrangements — is likely to be a key battleground arena over the next year. It remains to be seen whether the federalists are more successful in the next, perhaps final, round than they were at Kempton Park.

*Published Business Day 4 July 2009

Case for serious reflection in a dangerous season for justice

AFTER last Saturday’s M-Net-Via Africa literary prize I found myself in the unexpected position of participating in a post-award interview.
Trying to match the occasion with some book knowledge, I did no better than invoke the character of Robert Jordan in Ernest Hemingway’s A Farewell to Arms. He spoke of things “which are worth the fighting for”.

In the dying hours of the constitutional negotiations, back in November 1993 at Kempton Park, I led the fight-back against a National Party-African National Congress deal that would have empowered the president and his cabinet to have effectively hand-picked their own Constitutional Court. The minuscule Democratic Party, sidelined on many other key issues, managed to win this battle.
My efforts to provide a Judicial Service Commission to act as a filter between the executive and appointments to the highest court in the land drew both cynicism and praise.

Both the cynicism and excessive praise were overblown. I just reckoned then, as now, that without an independent constitutional court which owed fealty to the constitution, not to the government, SA’s brave new democratic world would be stillborn.

Reading the criticism and concern which greeted the unprecedented adjournment of the first meeting of the Judicial Service Commission (JSC) since the election, I thought perhaps another of Hemingway’s aphorisms applied to the body on whose establishment I had expended so much energy all those years ago. He used the phrase “beautiful fatalism” to describe people “who stay loyal to a doomed cause”. Are the causes of judicial independence, and the JSC as a vehicle to ensure it, doomed?
Certainly the JSC has been knocked all over the legal ballpark recently. It has made a meal and, the South Gauteng High Court suggests, a hash of investigating complaints of misconduct against Cape Judge President John Hlophe.
On the appointments front, new Justice Minister Jeff Radebe prevailed, on a majority vote, to postpone proceedings, in part, he said, to allow him meaningful input on the question of the transformation of the judiciary, “with regard to race and gender representivity”.

Actually, inside one of the documents that members, including Radebe, received for the meeting, was an appendix baldly entitled “Demographics”. Here, in detailed racial arithmetic, was the result of the JSC’s handiwork on the transformation front over the past 15 years. At the commencement of the new constitutional order, 97% of all judges were white men. According to the JSC document, today 54% of the country’s judiciary are black, and 27,2% are female. To widen the pool of women appointees, the JSC has inaugurated a special training programme targeting women practitioners. In terms of race, the JSC has ensured that 87% of the nominees it proposed for high court positions in the past year were black.

But such progress, impelled in part by the constitutional requirement that the judiciary “reflect broadly the racial and gender composition of SA”, is quite insufficient for the taste of the Black Lawyers Association. According to their document, which was attached in support of one of the candidates up for consideration, nothing short of full-scale proportional representation will suffice: “The judiciary, and therefore the JSC, cannot pretend that it is proper that justice should be meted out to the majority black population by a majority white judiciary, or a marginally black majority bench.”

Strangely , there was no document before the JSC that dealt with any of the violations we have witnessed over the past few months of section 165(3) of the constitution, which provides that “no person or organ of state may interfere with the functioning of the courts”. No doubt a vast file could be filled with threats made against the judiciary in recent times .

Last weekend, Democratic Alliance leader Helen Zille warned against reducing the judiciary to puppets of the ruling party. Doubtless, Radebe will have regard for this concern. He should also use the period of reflection he has arranged to consider how best to balance the sometimes competing claims of diversity and competence. Supreme Court of Appeal Judge Carole Lewis last year drew attention to inexperienced high court judges meting out “horrifying convictions and acquittals where judges had simply not understood the fundamental rules of evidence or criminal law”.
I suspect most South Africans, of all stripes, would rather appear before a judge, of any colour, who could competently apply the rule of law, without prejudice, and hold the ring for them against the mightiest forces in the land.
That is, indeed, “worth the fighting for”.

*Published 19 June in Business Day

Judge Hlophe seeks to destroy from within

During the Spanish Civil War, General Emilio Mola was asked which of his four army columns would capture Madrid. He replied: “The Fifth Column.” This was a reference to citizens inside the capital loyal to Franco. Thus the term “fifth columnist” entered the political lexicon — a reference to members of the community with a loyalty to the state, or a constitutional body, but determined to strike a blow, perhaps a crippling one, against it.
I’m beginning to get the feeling that Western Cape Judge President John Hlophe and his outriders have become home-grown vandalisers of our constitution. If I’m wrong, then the imputation is even more serious. Because according to Judge Hlophe, the entire Constitutional Court, the president of the Supreme Court of Appeal (SCA) and the leadership of the Judicial Service Commission (JSC) are, variously, “liars”, “biased” and serial violators of the fundamental rights they have sworn to uphold.
Since May 2008, Judge Hlophe and his supporters have used whatever weaponry available — from legal bazookas to rhetorical flame-throwers — to avoid or delay facing charges of gross misconduct levelled by 13 permanent and acting Constitutional Court judges. The court said he had approached two of them in an attempt to influence a pending judgment relating to the Jacob Zuma search-and-seizure warrants case.
They referred the complaint to the JSC — the constitutional body that deals with judicial misconduct. Judge Hlophe’s lawyer claimed the Constitutional Court, by issuing a media release about its planned action without advising him first, had “acted with unseemly haste ... to crucify him in public”. Ironically, in a recent interview, Judge Hlophe indicated a wish to serve on the same court.
And that was just the start — the latest round was a split-court decision on Monday in South Gauteng which found that by starting proceedings while Judge Hlophe was ill in April, the JSC had violated his rights. While Judge Hlophe and the JSC search for a date on which the proceedings can recommence, perhaps we should pause to consider the damage.
According to Anthea Jeffery of the Institute of Race Relations, at various stages over the past year Judge Hlophe has accused Chief Justice Pius Langa and his deputy, Dikgang Moseneke, of lying and urged the JSC to investigate them for gross misconduct, since both might have been politically motivated to back “a trumped-up complaint”.
In a recent attack, two members of the JSC — its acting chairman and president of the SCA, Judge Lex Mpati, and veteran human rights lawyer George Bizos — were accused by the “Justice for Hlophe Alliance” of “the most nefarious and despicable acts their minds could conjure up”.
And if that was not serious enough, Judge Hlophe complained in a case he ultimately lost before the SCA in March that basically every one of his constitutional rights — from dignity to equality, right down to the presumption of innocence — had been violated by the Constitutional Court. The ordinary citizen must wonder: if Judge Hlophe is correct, and if this is how the highest court of the land treats a member of the judiciary, what hope do I have of a fair trial?
Alongside all the other taxpayer-funded trials and applications Judge Hlophe has embarked upon, his attempt to appeal this judgment to the Constitutional Court, the very body that launched the complaint against him in the first place, is bizarre.
Since the bulk of the court would have to recuse itself, Judge Hlophe simply suggests that its members be replaced by a sort of tribunal constituted by the minister of justice. This has been dismissed by constitutional law expert, Professor Pierre de Vos, as “daft and dangerous” in terms of the separation of powers doctrine and the principle of judicial independence.
Judge Hlophe has his rights and they are obviously entitled to protection. But Justice Louis Brandeis once observed that the “lawyer has a duty to the case as well as to the client”. When you take a wrecking ball to every carefully constructed constitutional edifice, with the scorched earth tactics employed by the Judge Hlophe camp, compromise becomes much harder. If the courts and their disciplinary body climb down now, then the stain of Judge Hlophe’s charges against them and the administration of justice will remain.
Last July, the ANC warned judges not to “undermine the integrity of the courts”. The new government needs to remember that warning when, later this year, it considers replacements for the Constitutional Court. It would do well to remove from consideration one of the chief underminers.

*published in the Sunday Times 7 June 2009

Best Wishes, and a Warning, to COPE

Last week, en route to a speech at New York University, I chanced upon a mural in Greenwich Village. It depicted Barack Obama as a white man and John McCain as a black. Underneath this arresting transposition was the legend:”Let the issues be the issue”.

The artist got his wish in the United States on November 4 when the Tsunami of economic woes and popular discontent with the presidency of George W Bush swept Barack Obama to power, and drowned any lingering attachments in the United States to racial politics.
South Africa’s sclerotic race-based politics, where every election since democracy could in various ways be predetermined on the basis of an ethnic census, is set for a shake-up with the formalisation of the Congress of the People (COPE) next Tuesday in Bloemfontein. Might South Africans hope that this most significant breakaway from the ruling ANC since the formation of the PAC nearly 50 years ago, leads to a localised version of “letting the issues be the issue”?
Having enjoyed (the verb endured might be more apt) the title of longest-serving leader of the official opposition in Parliament since 1994, perhaps I can offer some (unsolicited) advice to the late-joiners to the opposition patch.

First, in a mechanical sense at least, any worthwhile democrat in South Africa will welcome an addition to the scattered ranks of the country’s opposition forces. One of the reasons why our democracy has not fulfilled its early promise and the high expectations so many of us had for it ,is reflected in the last general election results. More than 50-points separated the ANC and the principal opposition that I then led. This allowed the governing party to ignore dissenting voices, sideline alternative views, however meritorious, and suck most of the oxygen out of the democratic space which the constitution, in theory, created for a multiplicity of players. Any reduction in that gap must be welcomed.

Second, it is commendable that COPE has clothed its somewhat threadbare policies in a robust defence of the constitution – our founding democratic settlement. Recent polls suggest that South Africans, retain an overwhelming faith in it, despite their misgivings about current politics and failing institutions. At this time of deep political uncertainty in South Africa and huge economic upheaval around the world, it is worth recalling the words of America’s investor sage, and its wealthiest man, Warren Buffett. He is fond of remarking in business, “it’s only when the tide goes out that you discover who’s swimming naked.” The same yardstick should measure political leaders.

It is therefore perfectly fair, to ask whether the leadership of COPE are the best guardians of our constitution and worthy stewards for its future protection. This inquiry yields a far from reassuring answer, despite the excitement at the prospect of a new challenger to ANC hegemony.

Brian Pottinger, in his excellent new work “The Mbeki Legacy” got it exactly right. He described the difference between the ascendant forces aligned to Jacob Zuma and the vanquished acolytes of Thabo Mbeki as being the difference between “ANC Classic” and “ANC Lite”. One should never underestimate the potency of the politics of resentment: that heady cocktail of hurt egos, withering resentments and loss of power. Indeed, it is difficult to discern any gulf of principle which separates the ANC from COPE. They both claim to be fighting for the real core, and the lost soul, of the governing party.

Ostensibly, the formation of COPE is not about getting even or bringing back the spirit of Thabo Mbeki through the back door. It is about the creation of an alternative based on principle. When I delivered my lecture at New York University, Breyten Breytenbach was in the audience. He gave me a copy of his recently published excoriation of the current South Africa in the latest edition of Harper’s magazine. It is subtitled “Notes of South Africa’s Failed Revolution”. As exhibit A of his deconstruction he presents the Marie Antoinette quote of Smuts Ngonyama “I didn’t struggle to be poor”. The words are entirely accurate, being the risible defence which Mr. Ngonyama [provided when asked to justify the R50 million he pocketed for his membership of a consortium that received a huge payola from the Telkom listing – in his case a result of “know-who” rather than “know how”. Breytenbach, however, inaccurately cites Ngonyama as “spokesman for the African National C0ongress”. Today, of course, he is Head of Policy for COPE. It is not his undeserved millions which concerns me. But in his new incarnation, is he still the staunch defender that he once was of the cadre policy and deployment strategy of the ANC? In 1999 when I revealed this document which stated that the accountability of all ANC cadres lay to the Party high command and not to the institutions in which they were serving, Ngonyama described me as “a childish but confused individual”. In fact, as events over the past decade have made manifest, the ANC’s decision to place its officials in every key post in every institution, especially those requiring robust independence, has led to the corrosion of the constitution which COPE has now vowed to protect.

Last week ,the New York Times highlighted on its front page a recent Harvard University study which pinned the needless death of more than 300000 South Africans on then President Mbeki’s refusal to accept the scientific consensus on AIDS and his promotion of crank remedies drawn from AIDS dissidents. When in 2000, the Democratic Alliance rolled out the provision of antiretrovirals in the Western Cape, and offered to extend the treatment in its municipalities, Ngonyama accused us of peddling “apartheid-era biological warfare”. His other colleague in COPE, Mbhazima Shilowa was at the time Premier of Gauteng. But that province resisted and fought the constitutional court case in July 2002 which the TAC launched to force birthing facilities to provide antiretrovirals to HIV-positive mothers and babies.

Thirdly, nothing has divided South Africa’s opposition forces more than questions of unity. It is therefore reassuring to note that COPE leader Mosiuoa Lekota has pledged to work with other opposition parties, including my own, on the question of creating provincial governments where the opposition commands a majority. I have warm regard for Lekota, not least because of the very kind remarks he made when I stood down as leader of the opposition. But I also remember the entirely destructive role he played in 2001, in decimating opposition forces by luring Marthinus van Skalkvyk into the ANC in an attempt to monopolise all power in the hands of the ruling party. At one level, that’s politics. At another, it brings to mind the rueful remark of a famous British politician who said, “When you want to protect a principle, don’t look for protection from among the tramplers.”

My enduring hope for the new opposition party is that it will be staunch and resolute in its attachment to constitutional principles and practice: the very ideals its key leaders undermined when they occupied the seats of power.

* Written for Independent Newspapers in South Africa- publishing date: Sunday, 14 December 2008.