THOUSANDS of words have been written and spoken about the growing crisis of the South African state. Its most high-profile events so far this year have been the influence of the Gupta family, the Constitutional Court ruling on the standing and role of the Public Protector, and the high court decision that the National Prosecuting Authority should review discarded corruption charges against Jacob Zuma. Like other events in which the ANC has been caught with its pants down, recourse has immediately been made to legalism rather than a political response. For instance, faced with Mncebisi Jonas’ claim that the Gupta family had offered him the post of Minister of Finance, he was challenged make it under oath in a court of law.
This is a common riposte to wrongdoing in public life, together with the assertion that accused are innocent until convicted. But while the nation’s highest secular authority may be the Constitution this does not mean that everything has to be reduced to legalism. As one of the few heroic characters of the current ANC meltdown, Ben Turok, put it in a radio debate recently, this is politics not a legal case. While his statement – ‘I read it in the newspapers’ – may in one sense sound trite what he meant was that there was no reason to doubt Jonas and his claim and that in Turok’s political judgement it constituted a matter to be taken extremely seriously. He is right and the operative word is judgement ‒ in the broadest, not a legal sense.
Over the reality of corruption, racketeering and patronage that underlie too much of South African public life, a thick veil of legalism has been drawn. Yet politics should be about suitability and appropriateness and, above all, civic ethics, morality and justice. In political terms Jonas was almost certainly telling the truth based on the simple premise that he gained nothing by going public. Indeed, he probably damaged his future. Those who attacked him for the delay in speaking out unwittingly endorsed him: no doubt he was carefully considering the fall out. His behaviour marked him out as cautious, but someone eventually prepared to tell the truth. His political stature should have suffered no harm. And ultimately that is all a matter of political assessment, not for a court of law; and certainly nothing to do with lawyers.
The assumption that any contentious issue in the political realm has to be subject to a forensic process as in a commission of enquiry is patently absurd. There have been bizarre cases in which public servants clearly lying about their academic qualifications (for the simple and obvious reason that a university can find no record of them) have gone through multiple court proceedings in the far-fetched hope that a judge can alter the truth. Perhaps this is not as deranged as may seem. Legal proceedings are often marred by political interference, blundering incompetence and technicalities. For instance, Jacob Zuma was found to be innocent of rape. He is definitely not a convicted rapist. But on the evidence revealed in the trial, the political question is whether he is a person suited to the highest office in the land.
While not wanting to besmirch a noble profession, it is unfortunately true that the law provides too many places of refuge for scoundrels. And they tend to pop up in numberless public places. They confuse and obscure the truth that suitability for public office is a function of ability and trust, not whether someone is ‘innocent until proved guilty’ or has never been convicted in a court case. If politics is not ultimately about basic personal qualities, then the foundations of democracy are at risk. This is why in mature democracies resignations (many of them de facto dismissals) are so common: individuals found wanting are a liability where an electorate is demanding and prepared to exercise its vote ruthlessly in order to protect its rights.
South African reality is at odds with this. Too many people are wedded to Zuma’s belief (publicly vaunted in Pietermaritzburg last year) that the ANC is more important than the nation or the State. Too many people cannot appreciate the most basic tenets of democracy and find it inconceivable that the ANC could be voted out of office. It is within this mindset that the legal system is geared up, not to serve justice or the public, but to preserve the political power of groups and individuals.
Such legalism protects the corrupt, venal and incompetent and provides the context for dirty politics, the sort in which resources of the state such as the security agencies are mobilised for political ends. This has long been the case in South Africa. But there has been a discernible heightening of a trend this year in which hostile foreign forces are blamed for the nation’s ills. It is disturbingly reminiscent of Zimbabwe.
We are hostage not just to a painful past but a contemporary paranoia derivative of vicious struggles for power and resources. There will surely come a point when legalism and manipulation of the judicial system is abandoned and violence takes over. The recently discovered plot to eliminate the Public Protector, Thuli Madonsela, is an ominous straw in the wind. At present local functionaries are being assassinated, several in the Pietermaritzburg area in the last fortnight. Sooner or later someone of national prominence is going to die. In the case of overweening political ambition unchecked by national institutions, processes and civic culture there is a dangerously fine line between abuse and exploitation of the legal system and more extreme measures.
Sharp Thoughts from the Thornveld 44, 20 June 2016