Legitimacy in a time of political perversion
Taking regular gulps of water from a glass positioned under the podium from which he spoke, a jittery advocate Mokotedi Mpshe, then the acting national director of public prosecutions, announced a halt to all prosecution of Jacob Zuma, who had been facing more than 700 counts of corruption.
Mpshe reasoned that the manipulation of the timing of the charges meant justice had been subverted. This had allegedly been shown by conversations between two pro-secuting officials that had been intercepted by state intelligence. Zuma's legal team used these intercepts in its secret representations to Mpshe. It is a crime to possess classified intercepts, but an alleged investigation by the inspector general of intelligence yielded naught.
It was galling to realise that an arms deal apparently corrupt to the core could produce only two high-profile cases involving relatively small amounts of money. The inability or unwillingness of the criminal justice system to investigate others, in cases involving much larger sums of money, left a bitter taste.
Mpshe's 2009 decision was taken in the absence of advocate Vusi Pikoli, the prosecutions head who had been suspended by former president Thabo Mbeki in a battle over the corruption case against Jackie Selebi, the national police commissioner at the time. Pikoli was later cleared by the Ginwala inquiry; Selebi was subsequently jailed for corruption.
In this period it became clear that institutions of state given extensive powers in the service of law and order by the Constitution were being compromised by politicians for their own ends. Perfectly legal instruments and decisions were delegitimised, which perverted the processes of justice, the institutions meant to implement them and public opinion. Their standing has not been repaired since then.
Selebi's successor, Bheki Cele, was fired after an inquiry found him unfit for his post. Zuma's appointment of Pikoli's replacement, advocate Menzi Simelane, was found by the Supreme Court of Appeal to have been "irrational". Simelane, who is now appealing to the Constitutional Court, got the job despite the Ginwala inquiry finding his integrity questionable. The same inquiry found Pikoli to be a man of integrity and fit for the role, but he was fired anyway.
These stories tell of state institutions captured by party-political interests. Their core functions have become a mere by-product. Many citizens continue to believe these institutions are functioning optimally, but they are not. They have an enormous credibility deficit that widens with each questionable decision.
As Julius Malema and others face criminal charges, the whiff of political interference is in the air again. As before, the charges may be valid, but the decision to pursue them is suspicious because of the lack of other prosecutions for practices many know to be commonplace. Even when charges have been submitted, they have later been withdrawn after "confidential representations" to the prosecutors.
The criminal justice component of our constitutional state should be a sacred fortification against those who seek to destroy the fabric of South African society. But this can no longer be guaranteed as its weakness increases and its legitimacy is eroded.
It is perhaps naive to expect our politicians suddenly to do the right thing. That would mean acting against their narrow interests and even, in some cases, raising the prospect of jail. A comprehensive review of this broken system is now overdue. But South Africa's law enforcement machinery cannot be rescued from implosion if left to those now overseeing its destruction. The system puts too much faith in the integrity and capacity of the men and women in state organs.
Changing the electoral system to facilitate direct elections would help to force restraint on politicians who abuse the system. That is the obvious foundational step, but more would need to be done.
Law enforcement decisions
First, parliamentary oversight of law enforcement must be non-partisan to prevent party-political filibustering. Too often party interests trump reason in portfolio committees, which leads to faulty legislation such as the General Laws Amendment Act that destroyed the Scorpions and set up the Hawks. The Constitutional Court ruled aspects of the Act unconstitutional, something that had long before been pointed out to the ANC but was ignored.
Second, the executive's discretionary powers to appoint officials do not make sense when the appointee must operate without fear or favour. There should be clear, objective criteria to guide the executive in its appointments, which would forestall farces such as the Simelane case.
Third, these appointments should involve a parliamentary committee process that is open to the public to establish confidence and allow citizens to seek a review of such decisions if they seem wrong.
Last, the crime of interfering with prosecutorial or other law enforcement decisions needs to be prosecuted more thoroughly. This cannot occur if those who are in charge of these institutions are there to shield some people from prosecution while pursuing those who oppose their political godfathers.
The task of redefining this framework falls to those currently outside politics – those whose collective future is threatened by this destruction of legal legitimacy.
It is time for a new citizens' consciousness of state governance, one that can go beyond reports by the auditor general or the public protector.
South Africa's state machinery should reflect citizen vigilance – and citizens' impatience with political and economic greed.
Songezo Zibi is a member of the Midrand Group, an informal association of intellectuals