By Shameela Seedat
Media coverage leading up to the 22 April elections would leave many of us convinced of a dramatic plunge over the past few years in the level of public trust in South African democratic institutions.
Several significant events have led to such dwindling enthusiasm. These events include, to mention a few, suspected political interference in the National Prosecuting Authority (NPA) and Intelligence Services, the NPA’s decision to drop charges against African National Congress (ANC) President, Jacob Zuma, the dissolution of the Scorpions despite their success in fighting crime, dubious circumstances around the dismissal of former NPA director Vusi Pikoli, unsatisfactory progress around the corruption trial of Police Commissioner, Jackie Selebi, and threats to the independence of our courts resulting from the legal charges brought against the ANC president.
The event that poses most significant challenge to institutional integrity – the NPA’s decision to withdraw charges against Zuma – has been met with considerable scepticism. The rationale presented by Acting Prosecutions Director, Advocate Mpshe is very weak since it is unclear that ex-Scorpions head Leonard McCarthy’s alleged abuse of process renders the prosecution of Jacob Zuma unfair and unjust.
Importantly, the NPA has not denied, apart from political interference, that Zuma has a case to answer. Hence, questions will continue to cloud the Presidency and the NPA.
When judging the health of South Africa’s democratic institutions, how much weight should be given to these admittedly alarming events? Pressure exerted on such institutions in the recent past can largely be understood as the result of a specific fall-out between two individuals – Zuma, and former President Thabo Mbeki. Could we therefore not simply dismiss these events as evidence of an unhealthy power struggle limited to a very particular time in our nation’s history? Will South African institutions receive a clean bill of health once the fever has abated and Zuma takes the presidential seat? Or are recent problems symptomatic of enduring institutional weaknesses?
Unfortunately, several of these institutions are likely to enter their sixteenth year carrying over symptoms of bad health. Recent infighting in the ANC exposed fundamental weaknesses in the political culture and accountability of state institutions – which will not automatically disappear with the election. We have seen the extent to which two individuals’ ambition and direction has sapped the energy of the NPA, police and intelligence services. Furthermore, the political possibilities offered by the ANC’s 2007 Polokwane Conference – genuine debate and the holding of leaders to account – appear to have taken a backseat to the party’s strategy of shielding Zuma from answering corruption charges in court.
Various issues deserve attention here. The failure to comprehensively address the 1999 Arms Deal is still a major source of current problems (and a judicial commission of enquiry into the arms deal is unlikely as only the country’s president can appoint one). Laws to regulate party donations from private sources have also been put on hold.
There are also indications that the basic principle of equality before the law is not firmly entrenched in our democracy. Apart from the question of whether it may be legal or constitutional to drop the charges against Jacob Zuma, it would be unfair if powerful individuals – whether they be Zuma or Mbeki – received more favourable attention from legal processes than ordinary citizens. Granting medical parole to Schabir Shaik, the financial advisor to Zuma who was convicted for bribery two years ago, has created the impression that compassionate treatment is more likely to be meted out to the politically connected.
In short, there is little assurance that the political culture of our institutions is steadfast enough to withstand shocks caused by powerful actors seeking to use them for their own benefit.
The change in ANC leadership after Polokwane had a marked effect on the atmosphere and operations of parliament. Almost immediately, ministers and department heads faced more rigorous questioning by MPs, and government policies were scrutinized more closely than before. Problems in the Departments of Home Affairs and Health, and at parastatals like Eskom, were, for example, subjected to more rigorous debate.
However, these may have signified short-lived political opportunism rather than a longer-term culture of effective parliamentary oversight. Towards the end of Parliament’s third term, many MPs’ attitudes were again characterized by partisanship and closed thinking, particularly when making the decisions to terminate the Scorpions and dismiss suspended NPA head Vusi Pikoli.
In the future, South Africa would be better served if Parliament was more robust, pro-active and genuinely participatory. A number of factors, including the lack of capacity (insufficient experience and resources), the dominance of the ANC, and internal party hierarchies are said to weaken the capability of parliament vis a vis the executive branch.
In particular, South Africa’s future Parliament will need to be more astute in asserting oversight over the executive. The public needs suitable closure concerning the Arms Deal and “Travelgate” sagas, and Parliament should consider instituting civil cases against MPs to recover lost public money where appropriate.
Issues around our judicial institutions are also cause for concern. Recently our courts have treaded murky waters as political disputes have entered their arena: one which is traditionally extra-political. The battle between the Constitutional Court and Cape Judge-President John Hlophe – concerning the latter’s alleged interference in a case involving Jacob Zuma – imposed further strain on judicial credibility.
Yet, at least thus far, our courts have proved resilient, and there are further positive signs. The Judicial Service Commission (JSC), which investigates judicial misconduct, is finally hearing the merits of the complaint against Judge Hlophe in a process open to the public – a result of a court ruling asserting the importance of transparency. Furthermore, a binding code of conduct for judges and a system of financial disclosure to help deter conflicts of interest will soon be introduced. Whether these foundations will in the future encourage a stronger ethical culture within the judiciary and a more pro-active JSC remain to be seen.
In the future, any potential development relating to the rationalization of the court structure will also need to be scrutinized carefully. Previously, government’s package of five bills aimed at streamlining the courts drew strong criticism for perceived interference with judicial independence. These bills were withdrawn in July 2006 at the behest of President Mbeki. Such disagreement on judicial policy show that South Africa is still grappling with fundamental questions relating to institutional design.
As the elections draw close, South Africans need think further of ways to improve and fortify our institutions, particularly those most damaged by the recent leadership struggle.
Former Justice Minister Brigitte Mabandla’s poor leadership precipitated major setbacks to the efficient functioning of this department. Vusi Pikoli’s dismissal, for example, raised serious questions about the independence and credibility of the NPA. Furthermore, tensions between various units within and outside the Justice department such as the police, prosecution and intelligence services grew under her leadership, and the director-general now faces disciplinary charges.
Our next Justice Minister will have to introduce significant improvements here. State institutions are more likely to thrive if led by accountable and responsive leaders who are skilled at managing politically fraught issues facing government. The credibility of the NPA has severely been damaged by the way it has handled the Zuma prosecution. The NPA falls within the ambit of the justice ministry, and we will now need greater assurance from the Minister that it will not be manipulated in the future.
Currently, the President alone selects the NPA Head, something which is clearly undesirable, especially if the accused and president is the same person. The new minister should seriously consider creating an appointment commission or involving Parliament in appointing a suitable candidate.
As South Africans head to the polls, we should consciously bear in mind that the shocks borne by several of our institutions – as caused by the leadership contest – have not just damaged their credibility but also exposed fundamental weaknesses. During the next cycle of government, active citizens can play a crucial role in demanding a political culture that values inclusive decision-making structures and accountable democratic institutions. Our Constitution provides guarantees relating to openness, accountability and information-sharing, and citizens need to actively ensure that such ammunition is used to correct current failings.
Shameela Seedat has an LLB from the University of Cape Town and an LLM from Columbia University in New York, where she was a Fulbright Scholar. Shameela has been with IDASA’s Political Information and Monitoring Service for the last five years and her areas of interest include the development of South Africa’s institutions of democracy, particularly parliament and the judiciary. Shameela was previously employed as a legal consultant to the United Nations (UNDP) in New York where she researched post-conflict constitutional design and electoral reform. She has also worked as a research-clerk for Judge Ackermann of the Constitutional Court of South Africa, at the Land Claims Court, and at a Cape Town law firm.