Advocates rarely make sensational statements out of court, the Bar being a profession which prides itself on discretion and aloofness.
So it was not an impulsive decision on the part of the General Council of the Bar to hit out last week at the appointment of South Africa’s first “super attorney general”, Bulelani Ngcuka.
Ngcuka’s selection, said the body’s chair, Peter Hodes, SC, “underscored the Bar’s fears about the new post”: that the incumbent might be vulnerable to political interference and might be insufficiently qualified for the job.
The advocate’s comments were the most candid in the debate about the appointment of African National Congress stalwarts to two key state posts which are supposedly independent, the other being the choice of former minister of labour Tito Mboweni as Reserve Bank governor-designate.
This degree of candour has not been matched by the government, which has made little effort to explain either appointment.
Where the central bank was concerned, there was no frank explanation about why the new governor will be a Cabinet minister whose aggressive labour-market legislation had attracted considerable hostility in financial markets.
In an apparent effort to cleanse the announcement of politics, Deputy President Thabo Mbeki skirted discussion of the background to the decision. All that was said was Mboweni would sever all ties with the ANC, and would safeguard the bank’s independence.
There are, of course, very obvious reasons for Mboweni’s appointment which most South Africans understand. The new incumbent had to be a black South African with a background in economics, a person who would provide an antidote to the bank’s white, Afrikaans legacy.
And, as is argued by political commentator Steven Friedman, the long- term independence of institutions like the Reserve Bank can be secured only if they are headed by people in tune with the majority of the population.
If Mbeki had been able to headhunt a candidate who fitted these requirements but who would have also sent impeccable signals to the world’s financial markets, perhaps he could have been criticised for selecting the former labour minister.
Financial analysts sitting in London and New York can no doubt guess at these explanations, but they are people who rely on certainty. It would have done no harm for the government to declare its motives.
As it was, what candour the government did demonstrate in the matter was misapplied: a selection of bankers and financiers were consulted ahead of the Mboweni appointment, causing hard feelings among those who were not briefed, and probably allowing the less scrupulous of the confidants to make vasts amounts of money on their valuable knowledge.
The public has been told the Mboweni appointment was a year in the making, which, if true, means the government knew for some time its much-touted jobs summit would have to take place without the labour minister. Either way, the government ignored advice – which was given to the ANC before the elections – that it and the central bank should have visibly groomed potential successors to Chris Stals to ensure a smooth transition.
Even neighboring Namibia, the previous government’s policy testing ground, employed an expatriate as an interim central bank chief, followed by a professional accountant who was never an activist.
But, as Friedman points out, Namibia is a far less complicated country. It has a tiny population, most of which is in a remote patch of desert, and none of the vociferous interest groups daily banging on the door of the ANC.
Mboweni’s appointment is an exception to the generally accepted rule about central bank governors. But the government should have explained why it did not want to follow its neighbour’s example, but instead chose to depart from the prevailing orthodoxies surrounding central banks. At least it would then have been seen to be transparent.
Ngcuka’s appointment two weeks later has fewer ramifications. The post’s independence is also not guaranteed in either the Constitution or the legislation which creates it, although the latter does say the incumbent must carry out his duties without fear, favour or prejudice.
But coming so soon after the Reserve Bank bombshell, parallels inevitably have to be drawn.
It was left to commentators and journalists to explain the importance of having a helmsman in a prosecution system which has remained largely untouched by the negotiated revolution. South Africa’s prosecutors belong to a justice system which evolved in the service of apartheid, which condoned torture and which rarely acted against the interests of the ruling party.
Instead, once again, it was simply announced that Ngcuka would down his ANC cap and become an impartial civil servant who will forge a national prosecution policy. There was no explicit mention of the need to re- educate several senior members of the prosecution service – right up to the level of attorney general – who have bucked the new government’s priorities.
Both Mboweni and Ngcuka are unquestionably political appointments. It would be unrealistic for the government to flag them thus.
But it would have been more in keeping with the transparency it purports to apply if the government had openly declared the reasons for the appointments, instead of leaving such candour for the likes of the legal profession.