/ 25 July 2017

ANC is blind to the real threat to governance

National Assembly Speaker Baleka Mbete has accused opposition parties of turning too quickly to the courts to resolve parliamentary issues.
National Assembly Speaker Baleka Mbete has accused opposition parties of turning too quickly to the courts to resolve parliamentary issues.

We are living in two increasingly parallel legal universes in South Africa. In the first, the courts have resolutely decided cases without fear or favour. That is never easy when the government, often as a result of dreadful legal advice, regularly loses cases. In turn these outcomes provoke a hostile reaction, most recently exhibited by the speaker in the National Assembly, Baleka Mbete.

She was reported as saying that Parliament is concerned about the large number of cases brought against it by opposition parties, which she accused of being too quick to run to the courts to resolve political disputes. She claimed: “This business of taking parliamentary issues, including details of internal arrangements, to court is not good for us.”

She further said the opposition parties were able to run to the courts because they had the money to do so.

She claimed this had not happened in the four previous Parliaments, despite the fact that the ANC always had the majority. She said a mechanism would have to be found to resolve the issue.

On its own, there might be no reason to object to this criticism, unlike what followed, when, warming to her subject, Mbete said: “When there is a case that affects someone from the ANC, those cases would find their way [into the courts] and, if they end up in the hands of certain specific judges, forget it, you are going to lose that case. It has nothing to do with merit, correctness or wrongness. Some names pop up in the head already.”

Similar comments have been made by other ANC leaders before. They invariably exhibit a thundering ignorance of the weakness of the state or Parliament’s case and/or of the poverty of the legal arguments presented, but their design is clearly to place the judiciary under increasing pressure.

To date, to the credit of the judiciary, from the clear leadership of the chief justice downwards, these attempts at intimidation have failed.

The second, parallel legal universe is one in which extracurial forces are shaping the governance of our country. For example, there are the unsolved political killings, reports of significant intimidation of the former chief executive of the South African Social Security Agency, Thokozani Magwaza, threats made to MP Makhosi Khoza, and the still-unresolved break-in at the offices of the chief justice (and the theft of computers containing personal details of members of the judiciary when other more valuable equipment was not taken). These are all clear indications of a very different form of governance operating.

Every week (if not day), the nation reads of emails and attachments to emails that form part of the so-called #GuptaLeaks, the provenance of which has not been plausibly denied. Almost any of these leaked mails would justify a criminal investigation, of at least a comprehensive audit by the South African Revenue Service (Sars), and in some cases prosecution by the relevant authorities. But nothing appears to move these authorities to action.

In fairness, it is possible that Sars, which investigates below the radar, has been auditing a wide range of individuals and companies implicated in these emails. But, if that had occurred, some litigation would probably have made its way into the public domain by now.

The Hawks and the national director of public prosecutions, Shaun Abrahams, who were so hasty to prosecute then finance minister Pravin Gordhan on less than a legal fig leaf, are nowhere to be seen or heard even as allegations of corruption, money-laundering, breaches of exchange control, bribery and tax evasion (in addition to tax avoidance) appear almost daily in the media.

So, it appears that an increasing range of activity is being conducted outside of the established legal system. One would have thought that the custodian of parliamentary democracy, namely the speaker, would be more concerned with the erosion of the scope of the established legal system than with judges doing their jobs with admirable independence. No such luck!

Across the Atlantic, in another country where a ruling party and its leader show a similar contempt for the judicial process (save when it is useful to their political project), a stark difference is evident. Notwithstanding United States President Donald Trump’s evasions and counterattacks, the law enforcement agencies, particularly the FBI and more recently special counsel Robert Mueller, continue to investigate alleged abuses by the Trump campaign leading up to the 2016 election.

Thus, though Trump may fulminate about legal process in a manner that makes Mbete sound extremely mild, the investigations continue. So it is possible to uphold the principle of accountability in a country with a president determined to protect his own interests when the relevant institutions are functional.

The contrast with the conduct of the relevant South African authorities is truly remarkable. Instead of investigation, we have obsequious prevarication.

Arguably, when this difficult period in our history passes, the first major challenge will be to recreate viably independent investigative and prosecution institutions that, at present, are failing our democracy.