/ 19 August 2008

Sotyu’s foolish comments won’t do her career much good

I am not sure what is the opposite of ”don’t give up the day job” — ”don’t give up the night job?” — but whatever it is, Maggie Sotyu should take it to heart. Sotyu is an ANC MP and the chairperson of the parliamentary portfolio committee on safety and security.

She has now had her Andy Warhol-like 15 minutes of fame: three weeks ago she was foolish enough to allow her frustration and anger with the Democratic Alliance to unravel her sense of judgement.

In a press conference, she proclaimed that the Directorate of Special Operations (DSO — aka the Scorpions) would be dissolved because the ANC had taken a decision to do so, irrespective of the public hearings that commenced last week. Yunus Carrim, a veteran committee chairperson, who now chairs the justice committee that is jointly conducting the hearings, tried hard to cover his colleague’s clumsy tracks and has been back-pedalling since.

Carrim is a decent man, with a very good record as an independent-minded parliamentarian who has shown admirable respect for meaningful public participation in the deliberations of the various committees that he has chaired since 1994. He has every right to think that he might be rewarded with a place in the new cabinet next year. And so one hopes that he will not be collateral damage to Sotyu’s injudicious comments — because the fact is that her precise words may well not only trigger a constitutional challenge to the new legislation, but in due course themselves be the centrepiece of Constitutional Court scrutiny.

The likely challenge will cause a substantial delay to the passage of any legislation and to the dissolution of the Scorpions. Given that the new ANC leadership has prioritised the issue, and it remains an important — though receding — part of the campaign to deny Jacob Zuma the day in court that he once said he was eager to have, this is unlikely to do Sotyu’s career prospects very much good.

Aside from this, important issues are raised about the meaning and scope of any ”right” to public participation. In a number of cases, the Constitutional Court has made it clear that it takes seriously the constitutional enjoinder to Parliament to facilitate ”public involvement” in the legislative process. In the leading Doctors for Life case two years ago, the court was willing to declare as unconstitutional legislation that had been passed through Parliament without a reasonable opportunity for the public to have its say in the draft law.

More recently, in the Olivia Road judgement, the court earlier this year emphasised the importance of what it called ”meaningful engagement” between government and those people affected by a particular policy on its detail and implementation. One of the major complaints of the new leadership of the ANC about Thabo Mbeki is that his attitude to public participation is formalistic — all imbizo and no substance — belying an inherently non-listening technocratic, and therefore cosmetic, approach to decision-making.

It is ironic, therefore, that the new national executive committee should be so determined to push through a Bill with roots – despite Deputy Justice Minister Johnny de Lange’s attempt to spin it as part of a wider, more strategic overhaul of the criminal justice system — in the politics of revenge and in the legal exigencies of the ANC’s new president.

As an institution, Parliament itself fell into the trap, running radio adverts the week before the hearings that advocated the advantages of the new, post-Scorpions institutional arrangements — somewhat presumptuous given that the Bill had not even, at that point, begun its journey through the joint committee.

Does this mean there are no occasions when a ruling party can ignore public opinion — and any responsibility to listen to viewpoints beyond the inevitably limited range of its own membership — and simply do what it thinks is best? This is where the inherent tension between representative and participatory democracy kicks in. In the Doctors for Life case, the dissenting judgement from Justice Johann van der Westhuizen alerts one to the dangers of a cosmetic approach to public participation in Parliament.

Though the majority judgement of Justice Sandile Ngcobo is preferable for the richness of the analysis of the origins and transformative potential of a right to public participation, Van der Westhuizen’s concerns should not be idly discounted either. Thus, with the Scorpions’ Bill, the disingenuous approach would have been to pretend that the ruling party was listening carefully to the arguments against dissolution when, in fact, it had no intention of doing anything other than passing the legislation. Sotyu’s candour should probably have extended to its logical conclusion: cancel the public hearings and remind everyone that if it is really so objectionable and foolish a decision, within a year there will be ample opportunity to remove the ANC from office.

On the other hand, as Patricia de Lille has correctly observed, the ANC has no mandate for a shift in policy as potentially significant as this; rightly or wrongly, not least, the move will be interpreted internationally as a weakening of South Africa’s stance on both organised crime and corruption in government.

So, the ”correct” course would be to ignore the Polokwane resolution and adjourn the discussion until after an election is won on the basis of an ANC manifesto that includes explicitly a policy to dissolve the DSO.

That, of course, is politically inconceivable, though thanks to Sotyu, this may well be the final outcome of the matter. I have an entirely open mind on the question of whether the DSO model is the best model for criminal justice in South Africa. So far, all I have really got to go on is the Khampepe report, which encourages the view that they should be retained in their current form.

Thus, either through the parliamentary debate or through an election campaign, the ANC needs to persuade us all that the new model that is being proposed is being brought in for legitimate as well as expeditious reasons.

What the whole furore reveals is the absence of a consensus on how to practise the principle of participation. If the new leadership is remotely serious about increasing the way in which dissenting voices, especially from politically charged social movements such as Abahlali in Durban and the anti-privatisation forum in Johannesburg, are listened to, then it should elevate the issue to the point where a national protocol on public participation is created (on the basis, naturally, of a comprehensive public participation process).

Since you can’t legislate good faith when it comes to participation, the best one can expect is some rules of the game that are as clear and inclusive as possible.

Total onslaught
It seems as if the campaign of ”total onslaught” being fought by ”Team Zuma” is beginning to reap its rewards. Chief Justice Pius Langa may be up for the fight, but members of what the wannabe new establishment are with faux workerist rhetoric now repeatedly calling the ”chattering classes” are beginning to crack under the pressure. Veteran Max du Preez is among those commentators who is apparently prepared to consider a wide-ranging amnesty, whose scope will encompass not only Zuma, but the whole of the arms deal.

Inane comparisons are being made with the Truth and Reconciliation Commission process. As with it, so it is argued, the collective needs of a precarious society must eclipse the normal rule of law. Yet these are often the same people who so earnestly articulate a grave concern for the future of the rule of law. To compare the grubby avarice of the arms deal bribe-takers with the monumental compromise that was secured in the early Nineties is an insult to the victims of apartheid’s crime against humanity.

On the arms deal, nothing less then a full judicial inquiry is ever going to stem the destabilising flow of pus that continues to seep from the deal’s festering sore.