The debate sparked by Helen Zille’s comments on cadre deployment to the Human Rights Commission (HRC) is a positive development.
It means that more people are talking about a grave threat to our constitutional democracy: the subverting of supposedly independent Chapter 9 institutions through “strategic” deployment.
Many people involved in the debate are constitutional experts or, at least, hold the belief that the Constitution must be defended.
As one would expect, they recognise the inherent danger of deploying party loyalists to positions where they have a duty in law to remain impartial.
At the same time, they like to think of themselves as “progressive”, which they incongruously continue to believe means alignment with the ANC. This puts them in a bind.
As constitutionalists, they cannot very well say they are in favour of cadre deployment. But they cannot bring themselves to agree publicly with the Democratic Alliance either.
The result is the kind of awkward, self-contradictory argument proffered by Doron Isaacs last week (“Jobs for pals are sometimes okay“, November 12).
He begins by citing examples of political appointments to independent bodies in the United Kingdom and the United States.
He then concedes that, just because such appointments happen overseas, it doesn’t mean they should be acceptable here. But he still thinks they should “give us pause” to consider in what circumstances such appointments are justified in South Africa.
According to Isaacs, such appointments are unacceptable when they involve slavish ANC cadres (such as Lawrence Mushwana and Menzi Simelane). When the deployee is believed to be a competent person of integrity (like Janet Love), there is no problem. For him, what counts is the character of the deployee, not the act of deployment itself.
This argument cleverly sidesteps the “progressive’s dilemma”. It does so by allowing its proponents to criticise certain ANC deployments (and defend others), while criticising the DA leader at the same time. Neat.
What is not so clever is the demonstrably poor understanding of what cadre deployment actually means in South Africa and how it differs from political appointments in the countries Isaacs mentions.
Acting outside of the law
Cadre deployment is unique to political parties (like the ANC) steeped in the Leninist tradition of democratic centralism. This principle commits every cadre to defending and implementing the will of the party leadership, wherever he or she is deployed, and even if it means acting outside the Constitution and the law.
The individual cadre’s own thoughts, opinions and conscience are irrelevant. They are just loyal cadres.
The main parties in Britain and the US are not founded on the principle of democratic centralism. Cadre deployment as we know it is a foreign concept to them.
It is therefore quite conceivable (although not guaranteed) that an affiliate of one of those parties could act impartially when the law requires. In those contexts, the character of the appointee may very well count for something.
To understand fully how cadre deployment works in the ANC, one must revisit the ANC’s national conference in 1997, where it was resolved that cadres would be deployed to all “centres of power”.
This gave effect to Joel Netshitenzhe’s formulation that “transformation” meant “extending the power of the national liberation movement over all levers of power: the army, the police, the bureaucracy, intelligence structures, the judiciary, parastatals and agencies such as regulatory bodies, the public broadcaster, the central bank and so on”.
A year later the ANC adopted a “cadre policy and deployment strategy” and established national, provincial and local deployment committees to ensure that all cadres remained “informed by and accountable to” the party leadership. Under these circumstances, the notion of an independent cadre is a contradiction in terms.
This is the framework within which we must analyse the appointment of Love, particularly because, as Gwede Mantashe has confirmed, her appointment to the HRC was a “deployment” to a “strategic” institution. Whether Love likes it or not, she is a deployed cadre and she is expected to act like one.
Of course, this does not rule out the possibility of Love breaking the terms of her deployment. Andrew Feinstein, Barbara Hogan and Vusi Pikoli are all examples of cadres who refused to toe the line.
What is instructive is that they and every other cadre who has dared challenge the ANC leadership were sooner or later “redeployed” — voluntarily or otherwise. The same fate awaits Love if she chooses to do the same.
Isaacs must be alive to this possibility because he argues that the security of tenure enjoyed by a human rights commissioner will insulate Love from redeployment. In doing so, he underestimates the lengths the ANC will go to redeploy an uncooperative cadre.
To remove Pikoli as National Director of Public Prosecutions, the ANC set up the Ginwala Commission to investigate Pikoli’s fitness to hold office. When the Ginwala Commission report concluded that Pikoli was, in fact, fit to hold office, the ANC manipulated the findings and fired him anyway.
How Love will conduct herself at the HRC remains an open question. Her supporters have certainly been vocal about her track record in defending human rights at the Legal Resources Centre. They are at pains to point out that she has acted against the state in the past. But this in itself holds no guarantee that Love will be unimpeachable at the HRC.
Reasons for Love’s appointment
As professor Anton Fagan has pointed out, it is plausible that Love may be called upon to decide between two investigations, one that alleges human rights abuses by the ANC and another that questions the DA’s record.
Which investigation will she choose in these circumstances? Both involve allegations of human rights abuses, but one will have an adverse impact on the ANC and the other on the DA.
If Love chooses to investigate the ANC, she risks redeployment; if she chooses to investigate the DA, she does not. There is no telling what Love would do if faced with such a choice, but as Fagan points out, there is, at the very least, a reasonable doubt about her impartiality in such a situation.
That is the problem with cadre deployment — no matter who or how many people vouch for the deployed cadre, there will always be a question mark over his or her conduct precisely because he or she has been deployed as a “cadre”.
This alone is enough to undermine public confidence in our Chapter 9 institutions and, indeed, the Constitution itself. The only answer is the abolition of cadre deployment altogether.
Gavin Davis is an adviser in the office of the premier of the Western Cape