It has been a spectacular and a tragic fall, but the arc of Carl Niehaus’s descent cannot be understood simply in terms of a single man and his flaws, however striking that story is.
What really matters about this story is the chaos within the ANC and the deep structural pathology of its political culture.
It was extraordinarily stupid of the party, in the form of secretary general Gwede Mantashe, to acquiesce in a request from the team around Jacob Zuma to hire Niehaus. No amount of benefit that might have been derived from having an Afrikaans dominee lending his support to the campaign to save Zuma could possibly have been justified by the public relations damage that revelations about his past could do and there is every indication the party knew of his travails.
Niehaus was brought on board, as we report this week, not as a general purpose spokesperson, but as part of the effort to win over public opinion at home and abroad to the view that the case against Zuma has no foundation.
Here is a man whose misdeeds — fraud, corruption, the solicitation of cash from business people — closely mirror the charges against Zuma, but who confessed and offered to resign when confronted with them. That contrast is impossible to spin, as Mantashe’s flailing attempts in the past week have shown.
The ANC has now thoroughly lost is ethical moorings.
It believes that it can brazen out just about anything. Travelgate, Tony Yengeni’s conviction and later drunk driving arrest, Oilgate, the involvement of its front company, Chancellor House, in a massive Eskom tender and, ultimately, Zuma’s mutually beneficial symbiosis with the Shaik family.
There is more to it, however, than the arrogance of incumbency.
Niehaus’s failings are intimately related to the culture of conspicuous consumption and crony capitalism that pervades the ruling party.
Niehaus is far from alone in making up the affordability gap between a very comfortable salary and a life of outrageous luxury with help from wealthy friends or a bit of corruption.
Just ask the curators of the Brett Kebble estate.
The incoherent response on Niehaus, flip-flopping from comradely support to disciplinary action, is an indication not just of acute moral confusion but of a stunning leadership vacuum. Who is running the ANC? If it is Zuma he is nowhere to be seen. We suspect that it is a question no one can truthfully answer.
Judicious intervention
If this was the Eighties, the democrats among us might be starting up “Save Vusi now” campaigns to ensure that National Director of Public Prosecutions Vusi Pikoli is not fired. Papers filed in court to stave off his axing reveal that losing his job would take a personal toll: like most employed black South Africans, Pikoli depends on his salary to survive.
We may even have started selling “Pickles for Pikoli” to help him fight a battle that marks a turning point in our constitutional democracy. But, sadly, like the investigation of the arms deal, like the firing of so many other whistleblowers, we have become a nation that sweeps our problems under the carpet.
If the Constitution is to have any real meaning as a check on executive and legislative abuse, the courts should draw a line in the sand now. Our Constitution embodies the doctrine of the separation of powers — that the legislative, executive and judicial arms of government should not encroach unduly on one another’s territory.
But the figure of the national director of public prosecutions sits at the intersection of these three arms — and it is for this reason that his independence is critical and is constitutionally protected.
The treatment of Pikoli, by former president Thabo Mbeki, by President Kgalema Motlanthe and by the ruling party in Parliament fundamentally undermines that independence by demonstrating a blunt exercise of power that has swept away rationality and legality.
In a highly dangerous precedent the legislature and the executive have made the conduct of what is one of the most powerful public service posts in the country subservient to political diktat.
As one commentator put it this week: “This battle for integrity, honesty and transparency against the machinations of a corrupt and self-serving party is pivotal for the wellbeing of South Africa.”
As Pikoli himself puts it in his application: “This application is necessary — because my removal from office violated the principle of prosecutorial independence, the rule of law and the Constitution. If I do not make a stand, these values would be severely damaged.”
Up to now the courts have been reluctant to encroach too far on the parliamentary process or executive discretion. In the Hugh Glenister case there was an attempt to stop Parliament from enacting legislation to disband the Scorpions. In that instance the Constitutional Court declined to intervene, mainly because the legislative process had not run its course.
But Chief Justice Pius Langa set out the parameters of when the courts might indeed intervene: when the harm resulting from unlawful conduct would be material and irreversible.
Allowing the dismissal of Vusi Pikoli to stand would involve precisely such harm.