/ 12 November 2010

Jobs for pals are sometimes okay

University of Cape Town law Professor Anton Fagan has said Helen Zille is right to denounce Janet Love’s appointment to the Human Rights Commission (HRC).

But, as Fagan has noted, conclusions must be drawn from valid premises and his premise — “cadre deployment is bad” — is an abstraction, which he doesn’t define or justify.

There is a form of cadre deployment — evident in Menzi Simelane, the director of the National Prosecuting Authority (NPA), and Lawrence Mushwana, the chairperson of the Human Rights Commission (HRC) — that is very bad and threatens to destroy development and governance in South Africa.

To hide and defend the arms deal and Aids denialism, the ANC government undermined Parliament, the HRC, the public protector, the standing committee on public accounts (Scopa), the auditor general and the NPA.

Deployees such as Thami Mseleku in the department of health cost lives. But to say anything sensible about cadre deployment we have to separate the packing of state bodies with lackeys from the legitimate appointment of skilled and thoughtful people, including members of the ruling party.

A few examples from long-established democracies will illustrate my point. The United Kingdom’s Equality and Human Rights Commission (EHRC) is chaired by Trevor Phillips.

He is a friend of former prime minister Tony Blair and was the Labour candidate for deputy mayor of London in 1999, after which he became chairperson of the London Assembly — the city council — until 2003.

His deputy at the commission is Margaret Prosser, who was the treasurer of the Labour Party from 1996 until 2001.

Judicial independence
Fagan says he wouldn’t have Billy Downer as a judge, presumably because senior prosecutors are naturally biased in favour of the state’s case at trial. But courts require stricter independence than bodies like the HRC that report to Parliament.

In any case Elizabeth Baartman, who spent her time as a lawyer in the service of the state, was recently appointed as a judge in the Western Cape High Court without complaint.

And many lawyers would celebrate Downer’s appointment as a judge. The non-appointment of prosecutors is more a fading tradition than a high principle. Following the British, we’ve chosen judges from among the advocates.

In the United States it is quite different. Take, for example, the newest associate justice of the US Supreme Court, Elena Kagan. She served as associate White House counsel, and later as policy adviser, under then-president Bill Clinton.

President Barack Obama appointed her solicitor general — the person who represents the government before the Supreme Court — before nominating her to the Supreme Court in May.

This case of “cadre deployment” is superseded by a more famous one. Arguably the greatest US chief justice, Earl Warren, was, before his nomination, the only person elected three times as governor of California. He was appointed chief justice by then-president Dwight Eisenhower, who pipped him to the Republican nomination for the presidency.

The fact that this happens elsewhere doesn’t automatically make it right, but it should give us pause. In identifying those instances of cadre deployment that are unacceptable, we may ask the question: is the appointment of anyone with links to the ANC unacceptable?

The transition
In the famous South African Rugby Federation Union case, involving then-president Nelson Mandela, Louis Luyt accused some judges of the Constitutional Court of bias and asked them to recuse themselves owing to their “extremely close ties with the ANC”. “The position is further complicated,” wrote Luyt’s counsel, because the judges had “all been appointed by President Mandela himself”.

The court answered: “That a judge may have engaged in political activity prior to appointment to the Bench is not uncommon in most if not all democracies including our own. Nor should it surprise anyone in this country. All judges are expected to put any party political loyalties behind them on their appointment and it is generally accepted that they do so.

“In South Africa, so soon after our transition to democracy, it would be surprising if many candidates for appointment to the Bench had not been active in or publicly ­sympathetic towards the liberation struggle.” But where is the line? The Democratic Alliance endorsed Love’s candidacy.

Zille, the DA leader, now says that, because she was one of the 100 members of the ANC national executive council (NEC), she is an untenable choice. Maybe only opposition politicians like former commissioners Helen Suzman and Leon Wessels are acceptable? But that seems lopsided.

Is someone linked to the ANC all right as long as she’s never merited a leadership position in the party? And what about independence from other sources of power such as major corporations?

Fagan might see the words of Gwede Mantashe, the ANC secretary general, as drawing the right line. Because he said that Love was deployed, she was. But that is absurd. Does Mantashe just have to be a bit more discreet for it to be okay?

In fact, Love decided to step off the NEC to join the HRC. As an ex-post facto rationalisation of her departure, Mantashe announced redeployment, thereby undermining her and the HRC, but not rendering her appointment illegitimate.

Helen Zille’s comments
Zille should be supported when criticising incompetent, slavish cadres. But her comments in this case were shocking.

She went beyond criticising the politics of cadre deployment. Five lines after protesting Love’s appointment, she wrote that the HRC “should be staffed by people of the highest integrity”, not used as a “dumping ground for discarded cadres”.

Ultimately, there is no hard-and-fast line dividing cadre deployment from a sensible choice.

Therefore personal characteristics such as integrity, independence and competence cannot be ignored. Also worth remembering is the security of tenure Love has.

Section 194 of the Constitution says that a commissioner may be removed only after a parliamentary committee has found misconduct, incapacity or incompetence, and a majority has voted for removal in the National Assembly. Section 3(1)(b) of the Human Rights Commission Act says this must be a 75% majority.

There is little the ANC could do to prevent her from acting with the same independence she’s shown at the Legal Resources Centre (LRC).

Fagan’s arguments are faulty because they depend upon an undifferentiated premise that can’t withstand scrutiny. They are ill-judged because they mystify and reify “cadre deployment”, thus preventing clarity in an area of national concern.

Last, they don’t exonerate Zille from impugning and undermining both the HRC and the LRC because, as the court suggested in the Sarfu case, questioning the impartiality of the judges amounted to “impugning the integrity of the — institution”.

Doron Isaacs is the co-ordinator of Equal Education. Next week, DA leader Helen Zille replies.