A clique too many for constitutional democracy

PW Botha.

PW Botha.

During the 1980s PW Botha and his securocrats ran the national show. Botha had been minister of defence before he became leader of the National Party, prime minister and then president.

His primary interest was security and so he employed trusted men from his defence portfolio, particularly general Magnus Malan, who was aided by Niel Barnard to develop a “total strategy” in response to the idea of a “total onslaught” against white minority rule.


Rule by presidential diktat in the form of states of emergency, press censorship and the unfettered power of the police and military characterised the final decade of apartheid. There was also a judiciary that, with a few glorious exceptions, ensured that this form of government obtained the sanction of the courts.

The post-apartheid constitutional scheme developed in the early 1990s, for which the ANC was mainly responsible, represented the national desire never to replicate the Botha form of government. Then-president Nelson Mandela said so expressly in that majestic moment of his inauguration in 1994.

A government run under constitutional values of openness and transparency would ensure dignity, equality and freedom for all. It would be accountable to the people through a clear commitment to govern within the strictures of the Constitution.

Unreasonable criticism
A constitutional enterprise does not simply announce itself into practice. Its progress from drafting to approval and then to the attainment of the kind of national legitimacy that protects it from assault by disgruntled politicians is a slow and fragile business.

For more than a decade South Africa did the process proud. To be sure, the government did not always live up to the demands imposed by the Constitution, as shown by failures of accountability in the arms deal, Thabo Mbeki’s dreadful responses to HIV/Aids and our approach to foreign affairs, as exemplified in our responses to Zimbabwe.

But, in general, the courts did their work without unreasonable criticism and rafts of legislation were passed to create a democracy that could fulfil our constitutional ambitions.

Over the past few years there has been a steady stream of events that began to indicate increasing threats to the enterprise. Growing in significance, there were allegations about the manipulation of the National Prosecuting Authority for the purpose of prosecuting Jacob Zuma, then the deputy president.

This was a clear indication of the use of state organs to deal with political opponents. Then came the suspension and subsequent sacking of Vusi Pikoli as head of the NPA. The pace picked up. Within a short period the Scorpions unit was disbanded and Menzi Simelane appointed head of the NPA after a lacklustre record at the Competition Commission and a messy stay as director general of justice.

Openness and transparency
The secrecy Bill was placed on the legislative menu; its contents were clearly at war with a society based on principles of openness and transparency. Attacks on the judiciary, from the president down, became far more frequent – and then another controversial appointment was made: Mogoeng Mogoeng became chief justice.

All these steps prompted public comment, criticism and concern. But the discourse appeared to conclude that, these setbacks notwithstanding, our constitutional journey  could still continue, bumpy as it now would be. It is surely no longer the case. Lieutenant General Richard Mdluli has seen to that – or, to be more accurate, his continued accession to power, seemingly with the support of the presidency, either by commission or omission, has totally altered the landscape in which the journey must proceed.

In an apparent resonance with other key appointments, Mdluli was part of the apartheid state, becoming a policeman a mere three years after the Soweto uprisings. This background has caused him no problems in rising to great power. Similarly, the fact that there are serious allegations concerning murder and fraud on his part have similarly had no adverse effect on his career prospects.

Mdluli saga
A senior prosecutor is suspended then shot at in truly suspicious circumstances, given her connections to the Mdluli cases. There is no sign of any move to hold a full and transparent inquiry into any of these allegations and events, all of which go to the very heart of a country run by laws and independent institutions.

The saga surrounding Mdluli should focus our attention on the threats to our constitutional democracy. The latter model is completely incompatible with rule by securocrats, let alone securocrats who, if but a few of the allegations in the public domain are true, are aligned with criminal elements.
 
Simply put, South Africa cannot have a continuing viable constitutional democracy with courts that hold power to legal account. To his credit, Minister of Police Nathi Mthethwa announced this week that Mduli would be moved from crime intelligence. It illustrates a welcome government response to widespread public concern. But Mduli  will doubtless remain in a powerful position in the police. As our history under Botha showed, something must give. If the present course is pursued, it will be our constitutional ambitions that will suffer. That is why what now happens to Mdluli can be likened to a canary in our constitutional mineshaft.

Serjeant at the Bar

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