Nkosana Sibuyi

Posted by Nkosana: 23 December 2011

The African National Congress (ANC) shall celebrate hundred years of its existence on 8 January 2012 at Mangaung, Free State. The current balance of political discourse points that December 2012 would be profoundly different from December 2007. Simply put, other things being equal, it makes functional sense to reflect on the strategem and tactics employed prior to the Polokwane ANC National Conference. Markedly, President Jacob Zuma was the necessary tool used to remove former President Thabo Mbeki from power. He was an effective instrument to fight and defeat what was perceived to be a common enemy. It was undoubtedly through Zuma’s exhibition of victimhood that Mbeki was forced to reach his Waterloo. Consequently, Zuma was chaperoned to the ANC presidential leadership. Expectedly, Zuma has served his purpose. Equally, Mangaung may be worse than Polokwane.

Sol Plaatjie’s celebrated tome, Native Life in South Africa, reflects on the desolation, indomitable spirit of resilience and socio-political polemic towards the de-establishment of apartheid colonialism in South Africa. Bessie Head writes in a foreword to the book that “most black South Africans suffer from a very broken sense of history. Native Life provides an essential, missing link. This book may have failed to appeal to human justice in its time, but there is in its tears, anguish and humility, an appeal to a day of retribution.”

As the country negotiates its way towards the centennial celebrations, there are sequences of underlying challenges facing the ANC in the current conjuncture. Schematically, this boils down to seven theses characterising the superstructure of contradictions inherent in societal evolution and development.

Thesis One: Lack of organisational unity remains the ANC’s nemesis. It is its Achilles heel. It is because the ANC is dead. The paucity of unity in action is palpable. The dearth of unity of purpose is real. It has degenerated. It is obliterated. It is like holding water in our hands. It would slipup.

Thesis Two: The decadence of reverence and decorum for organisational principles has of late, become the defining distinguishing feature. These are the glue that irradiates and opens vistas for an organisation formed on 08 January 1912. The African National Congress Youth League (ANCYL), has, for some time, rightly or wrongly, been perceived to be a kingmaker in national conferences. It is as if the youth (ANCYL) does not want to leave the outhouse. They have without any doubt occupied some kind of twilight world. One is reminded of the old age adage: humility costs nothing but it pays. It is a perilous cliché. If anything, plotting regicide has assumed an accepted strategy. Conceivably the uncomfortable truth and questions to be posed are: What is the South African experience since 1994? To what extent has the ANC emulated what the National Party did in 1948? Is it appropriate to blame all perceived bad things on the apartheid system? What questions did the ANC ask? What questions did they avoid? What are the contradictions and complementaries?

Thesis Three: Organisational Discipline: Owing to the lack of leadership and organisational discipline, Julius Malema moved to close the vacuum. He became an imposing voice on many issues in the national and international discourse. He sorely defined who the ANC become and perceived by the rest of the world. He was seen through the prism of ANC’s modern history. For instance, Malema’s transgressions, of which he was found guilty, are not much severer than the humiliation he exhibited against former President Thabo Mbeki. He was a useful mascot at the time. He equally served his purpose. Men and women of honour within the ANC however remained inaudible when Malema meted out his ignominious impudence against the sitting president of the country. The ANC grossly failed to deal with this. It is not unexpected. But it is unacceptable.

Thesis Four: It the Leadership Challenge. Every country gets the types of leaders it deserves. Robin Sharma, the renowned leadership expert, in his book The Leader Who Had No Title reflects on the significance of sustaining and deepening leadership transformation. Further, Sharma contends that “too many among us blame outer forces for resistance to mastery we show in our lives versus our inner fears and our weakest beliefs. And, sadly, it’s become more popular to be popular than to be ethical, brave and good. We’ve forgotten the leadership responsibility that our culture once knew. We’ve neglected what it means to stand for something bigger than our lives.” The paucity of leadership in the ANC is reflective of the moral repugnance in the national social fabric. The selection of political leadership, leadership options and possible directions must be reviewed in the face of the current geo-political realities.

Throughout its existence, the ANC was led by icons of unimpeachable integrity. As a general matter, the leadership has, ad nauseam, surprisingly deteriorated since the ANC assumed power in 1994. In a sense, the ANC has been transformed by the very same institution it sought to transform. The state is such an institution. In such cases, this could, amongst others, be attributed to what Professor Zanemvula Kizito Gatyeni Mda (better known as Zakes Mda) calls instant gratification and conspicuous consumption as intimated in his Steve Biko Memorial Lecture in 2001. Today’s leaders are not a replica of yesterday’s leaders. The ANC is failing to lead. They are leading the ANC and country like ruffians. The focus of leadership revolves around self-preservation than “to stand for something bigger than our lives.”

Professor Jeffrey Sachs, the former Special Advisor to the erstwhile United Nations Secretary-General Kofi Annan took this argument further arguing that “the world is held together, however precariously, by the vision, leadership and struggle of its leaders who are committed to a world of justice, equality and rule of law.” It is this leadership galvanising idea which would lead to the achievement of the summum bonum-the highest good. This controlling idea must take place within the realm of human consciousness. It must focus on the power of the mind. The mind must wonder in the right direction. The development of strong minds, without doubt, does immensely contribute to the building of a resilient country. It may as well be that this has to do with the identification and resolution of leadership complex phenomena.

As we gravitate towards Mangaung, a number of questions have arisen as a result of the current actualities and practical realities: In what way will Mangaung resemble Polokwane? Put differently, in what way will Mangaung be better or worse off than Polokwane? To put it mildly and consistent with the current political reality, in what way would the outcome or contradictions arising from Mangaung give birth to the emergence of a break-away political party as it equally manifested itself post-Polokwane? Would anything born from the ANC sustain itself or assume the role of a flat spare tyre in national and oppositional politics? Put in other words, the answer and truth immanent in these questions lies in between. It is about making a distinction between the general and particular, abstract and concrete, prognostics and agnostics, essence and phenomenon. Naturally, these questions, the current dimensional circumstances and confluence of major possibilities will therefore assist in responding to the old age question posed by Vladimir Ilyich Lenin: What is to be done?

Thesis Five: The ANC’s exercise of power is clearly daffy. Cadre deployment policy is a warped logic going against the modicums of meritocracy in both public service and private sector . It goes against the basic canons of insulation, obligation and connection of the public servants to close the yawning chasm between policy development and implementation. Senior appointments have tended to be political at the expense of competence and merit. It is a particle of reality that could degrade the essence of ideational dominant worldview owing to the lack of system in the chaos.

Thesis Six: The ANC is no longer led by ideas and sophisticated understanding of complex issues. It lacks the individual and collective imagination to respond to the rapidly changing global polity for a better South Africa, Africa and the world.

Thesis Seven: The ANC will never be same again. What would happen to the ANC when it loses the national democratic elections? A candid response to this question is that it will afford the ANC a possibility to cleanse itself. Like an ocean, the ANC would have a self-cleansing capacity. It will recognise the centrality of unity of purpose, unity in action for change and refine its tactless strategic political approach.

The theses characterising the superstructure of contradictions outlined herein bespeaks practical confirmation of the correctness both of decorum and integrity in public life. The dialectical connection between the antagonistic and non-antagonistic contradictions societal development provides a possibility to achieve sommum bonum-the highest good, public good. The achievement of this unique need provides an inestimable advantage and therefore constitutes an ineluctable part of the solution to the paradoxes characterising society. Simply put, the highest good must not be allowed to happen independent of human consciousness, bubbles and busts. The essential argument in all this is that building the social cohesion, regeneration and redefinition must be driven by the public good. This will consolidate the connection with the universe.

The questions remain: What is to be done? But do these prestidigitators exist? We need to test our resilience. It behoves on humankind to replace of a system driven by instant gratification and conspicuous consumption. As human beings who can think, we have the possibility and obligation to build a new consensus on human development and civilisation. Practically, this affirms human capabilities to resolve the superstructure of complexities and ambiguities inherent in human evolution. Consequently, the deconstruction of the contradictions and challenges, must, of necessity, be in the interest of constructing a society premised on insightful social mechanism consistent with the perspective presented by Sol Plaatjie on Native Life in South Africa. Nuanced challenges and issues cannot be simplified through anecdotes and tyranny of the sound bites. This would help construct a South Africans devoid from a very broken sense of history.

REFERENCES

1. Jeffrey D. Sachs. 2005. The End of Poverty. How we can make it happen in our
lifetime. London: Penguin Books
2. Professor Zakes Mda. Biko’s Children. Steve Biko Memorial Lecture. 2001
3. Robin Sharma. 2010. The Leader who had no Title. New York: Smon and Schuster
4. Sol Plaatjie. 1982. Native Life in South Africa

Posted by Nkosana Sibuyi: 13 December 2011

South Africa recently celebrated the fifteen years anniversary of the Constitution. When former president Nelson Mandela signed the constitution on 10 December 1996, he bequeathed to us a constitutional democracy to be proud of. Married to this, Deputy President Kgalema Motlanthe’s recent lighting of ‘the Eternal Flame of Democracy’ represents the cenotaph and a site that radiates the latent potential reflective for the common weal for constitutional democracy. It can be inspiring that the document is a personification of excellence. It is an icon of purity. It played a role in the epitaph of constitutional democracy and governance. Doubtlessly, the constitution is a touchstone of uprightness, sincerity and sedateness. It represents an epic moment and timeless phenomenon of change as a permanent process. It continues to exercise the minds of the ordinary and thus invoke memories of law, constitutional dispensation and politics.

Conversely, the Cabinet decision on 23 November 2011 to do an assessment on the transformation of the judicial system and the role of the judiciary in a developmental state to be carried out with a reputable research institution is noteworthy and ambivalent. At the centre of this assessment is to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic. To an ill-trained mind, these proposals sound cunning and long overdue. It could be argued that this decision seeks to affirm the separation of powers enshrined in the constitution. That argument is as desirable as it is fallacious. It may conflate policy development and implementation. Significantly, it must be noted that judges are accountable to the constitution as opposed to the executive or the ruling party in a given moment. Not handled with maturity, this assessment may compromise the bellwether and DNA of South Africa’s constitutional democracy. In this context, the corollary of the constitutional text and practice at the backdrop of the cabinet decision warrants considered analysis and robust reflection.

Two respected legal minds have added their voice in providing clarity to the cacophony of people’s power, role of the courts and role of separation of powers doctrine.

Justice Kate O’Regan, on the occasion of the Helen Suzman Memorial Lecture said that the power of the Executive and the Legislature is being curtailed by courts in policy formulation. President Zuma recently said that those who do not agree with the ruling party are using the courts “to co-govern” the country. Judge O’Regan, in her analysis of the conduct of presidents, contends that the power of the executive, legislature and judiciary is checked or restrained by the other. The silhouettes of the separation of powers do change the grain, landscape and orientation of the supremacy of the Constitution. This objective reality does not in any way arrogate the responsibility of one at the expense of the other in the stewardship of the ideals and founding values of the Constitution.

Notably, Adv Geoff Budlender, when delivering the Bram Fischer Memorial Lecture said “If we were simply to be governed by virtue of the "mandate given by the people in a popular vote" on a five-yearly basis, we would not need a Bill of Rights. We would not need our elaborate Constitution”.

Clearly, the Cabinet assessment ought not to be captured by circumstantial temptations and testimonial betrayal of the imprimatur of the constitution. Further, it must not be misguidedly perceived to be a stratagem for the executive to annex powers whose jurisdiction lie in both the judiciary and the legislature. That would be demonstrably false. It will falsify the content and substance of South Africa’s constitutional democracy. From this standpoint, the nation cannot afford to derive succour from silence and inaction. The nation must take on the holy cows. As Adv Geoff Budlender cautions, members of cabinet are not elected by popular vote but are appointed and serve at the pleasure of the President.

This brings one to William Butler Yeats’ magisterial poem, Second Coming in which he pronounces that the “ things fall part, the centre cannot hold, mere anarchy is loosed upon the world, ceremony of innocence is drowned, surely some revelation is at hand”.

Out of Butler’s poetic observation in a South African context, raises four fundamental interrelated challenges.

Firstly, immanent in this is recognition of the paralysis in the justice, crime prevention, safety and security landscape. This is concretely reflected in the suspension of the national police commissioner, General Bheki Cele, the Supreme Court of Appeal (SCA) declaring Advocate Menzi Simelane’s appointment as the National Director of Public Prosecution (NDPP) “inconsistent with the constitution and invalid.” In the same vein, the appointments of the Chief Justice, Justice Mogoeng Mogoeng, Advocate Michael Hulley and Advocate Willem Heath as the Head of the Special Investigating Unit (SIU) constitute the tomatoes, olives and feta cheese of the justice, crime prevention, safety and security salad seventeen years into South Africa’s constitutional democracy.

There are a number of conventions that could be drawn from the current wretched state of this landscape. Put simply, section 9 (1) of the National Prosecuting Authority Act 32 of 1998 provides that any person to be appointed as national director, deputy national director or director must-

(a) posses legal qualifications that would entitle him or her to practice in all courts of the Republic, and
(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned

The Supreme Court of Appeal (SCA) judgment on the inaptness of Advocate Menzi Simelane’s appointment as the National Director of Public Prosecution (NDPP) raises a variety of questions. Do his malfeasance and malleable approach arrogate to him the possibility of being appointed to so crucial a position as the NDPP? Does Advocate Simelane meet the basic requirements for an appointment as the NDPP? When he was appointed into this position on 25 November 2009, what was the content of the legal advice Minister Jeff Radebe proffered to President Jacob Zuma?

Without any compunction, it is patently clear that the president did not receive quality, apposite and sound legal advice at the time. It could be rightly argued that Adv Simelane’s lack of integrity was exposed at the Competition Commission, Ginwala Commission of Enquiry on the NDPP and the report of the Public Service Commission (PSC). The PSC, in a report submitted to former Minister of Justice, Mr Enver Surty on 6 April 2009 recommended a disciplinary enquiry into Advocate Simelane’s conduct. Nonetheless, Minister Radebe disregarded the PSC recommendations on 23 November 2009 by refusing to institute a disciplinary action against Mr Simelane.

Without taking an adversarial complexion and dim view about Mr Simelane, Ginwala Commission of Enquiry Report in to NDPP expressed “displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which was found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.” In essence, the advice offered to the President about Mr Simelane’s fitness and propriety for office did not go “through the eye of a needle” and thus compromises the integrity and decorum of the office of the NDPP. The SCA judgment is both a representative of the cri de coeur of a victory of constitutional democracy, respect, integrity and confidence of the NDPP in the context of the justice, crime prevention, safety and security landscape.

The other critical matter that has not escaped the public mind and discourse is Advocate Willem Heath’s recent interview with the press. In the interview, he made harsh allegations against former President Thabo Mbeki, Bulelani Ngcuka, former national director of public prosecutions and his wife, former deputy President Phumzile Mlambo-Ngcuka. He alleged that “Mbeki initiated Zuma’s prosecution and he dictated to the NPA what decisions they had to take–not only as far as the corruption charges were concerned, but also on the rape case.” The gravity of his allegation, their flippant malleability and wrongness, like Simelane, raises ethical and legal questions about his suitability to hold the office of the Special Investigating Unit. One of the assumptions that could not be ruled out is that, perhaps, this is part of his 100 days plan for his office.

The second possibility is that Adv Heath may be a mere pawn in the Zuma political survival chessboard. Unknowingly, as a disciple of the Zuma Presidency, he may as well be a pawn in the bigger scheme of things. Interestingly, the Presidency has distanced itself from Heath’s statements and postulated that they were “made in his personal capacity”. What does this suggest? It suggests that Heath’s triumphalism on his re-appointment created an excitement that was too complex for him to manage. His conduct is devoid of any respect for his position and the office he leads. Adv Heath’s overzealousness brings into question his fitness, integrity and propriety to hold such a monumental office.

The third interrelated contradiction is the challenge to strike a balance between meritocracy and brinkmanship. Meritocracy as a philosophy proceeds from the premise that appointments into positions must be based on skills, professionalism, competence, merit, aptitude, impeccable credentials and firm understanding of the dynamics of the responsibilities. In time, these are the material conditions that fertilises passion and performance, thus embedding them into our constitutional democracy. This matter has also arisen in the National Development Plan Vision for 2030 in which it is outlined that South Africa needs to gravitate towards building a professional public service and a capable state. It is this kind of approach that Professor Linda Weiss intimated on professional insulation against corruption, political favours, and special interests. All of these are an antidote for more effective decision making and confluence of major possibilities in governance. Insulation, to a remarkable degree, is an anti-thesis of recruitment and promotion on the basis of their political or personal connections.

The third interrelated challenge, relates to the complexity of state and governance. Mesmerised by the frolics of the moment, the inherent paralysis in the justice, crime prevention, safety and security landscape will remain bereft of any dynamic social compact. This calls for change of attitude, latitude and strategic approach. Constructive contestation of ideas on the society we seek to create and become requires scrupulousness and honour. Playing to the gallery and adopting an ostrich approach will not embed values in the affirmation of a constitutional democracy and developmental state.

The last interrelated challenge is linked to the first one. It has to do with power and how it is exercised. Thus, like appointees in the justice, crime prevention, safety and security, the nation’s impulse to embrace meritocracy remains remote. Handled in this way, the public good as the defining benefit of society becomes a cardinal pillar of power in its usefulness. Perhaps Lord Acton was aptly correct when he eminently said: “All power tends to corrupt, and absolute power tends to corrupt absolutely.” The nation must learn the art and skills to confront this paradox in the context of the current socio-political and geo-economic trajectory.

To paraphrase from William Butler Yeats’, surely some revelation is at hand. At the core of state and governance, the inexactness of these complex challenges has reached the end of their tether. It is imperative to learn that the ideal of a free and open society has not yet developed. There is no doubt hitherto that one could hear the knives being sharpened for utilisation during the centenary celebration of the establishment of the ANC. Equally, this will also play itself out at the ANC national conference where the movement would be standing at the edge of precipice. The apocalypse that WB Yeats wrote about in 1919 may come to determine whether or not the ANC will witness another centenary thus depositing to or denying the country a sumptuous scrap.

Following the template provided by the paralysis in the justice, crime prevention, safety and security landscape, the question that arises is whether the constitutional watchwords guide the doctrine of legality and rule of law. The question is whether they remain the orchestra for constitutional ordering, openness, transparency and responsiveness to unashamedly enhance constitutional democracy, civic dignity and administrative justice. Perhaps, Professor Eskia Mphahlele was correct to posit that the odyssey of the imagination and alienation are a concrete allegory of innocence lost and never to be regained.

REFERENCES:

(1) Cabinet Statement. 23 November 2011
(2) Dr Frene Ginwala: Report of the Enquiry into the fitness of Adv VP Pikoli to hold
office of the National Director of Public Prosecutions. 4 November 2008
(3) Prof Eskia Mphahlele. 2002. Eskia. Stainbank and Associates: Johannesburg
(4) Geoff Budlender. People’s Power and the Courts. Bram Fischer Memorial Lecture, 2011
(5) Justice Kate O’Regan, A Forum for reason: Reflections on the role and work of the
Constitutional Court. Helen Suzman Memorial Lecture. 22 November 2011. Johannesburg
(6) Linda Weiss: Transformative Capacity and Developmental States: Lessons for South
Africa. Public Lecture prepared for Policy Analysis Unit/Centre for Africa's
Social Progress, Human Sciences Research Council, Pretoria, 18 February 2010
(7) National Planning Commission. National Development Plan Vision for 2030. 11
November 2011
(8) William Butler Yeats. Second Coming. 1919
(9) The Supreme Court of Appeal (SCA) Judgment: 1 December 2011