The State of SA’s Democratic Institutions

– By Shameela Seedat –

Media coverage leading up to next month’s national elections would leave many of us convinced of a dramatic plunge over the past few years in the level of public trust in South African democratic institutions.

Several significant events have led to such dwindling enthusiasm. These events include, to mention a few, suspected political interference in the National Prosecuting Authority (NPA) and Intelligence Services, the NPA’s decision to drop charges against ANC President, Jacob Zuma, the dissolution of the Scorpions despite their success in fighting crime, dubious circumstances around the dismissal of former NPA director Vusi Pikoli, unsatisfactory progress around the corruption trial of Police Commissioner, Jackie Selebi, and threats to the independence of our courts resulting from the legal charges brought against the ANC president.

The event that poses the most significant challenge to institutional integrity – the NPA’s decision to withdraw charges against Zuma – has been met with considerable scepticism. The rationale presented by Acting Prosecutions Director, Advocate Mpshe is not immediately persuasive since it is unclear that ex-Scorpions head Leonard McCarthy’s alleged abuse of process renders the prosecution of Jacob Zuma unfair and unjust. Furthermore, the NPA has not denied that, apart from political interference, Zuma has a case to answer. Hence, questions will continue to cloud the Presidency and the NPA.

When judging the health of South Africa’s democratic institutions, how much weight should be given to these admittedly alarming events? Pressure exerted on such institutions in the recent past can largely be understood as the result of a specific fall-out between two individuals – Zuma, and ex-President Thabo Mbeki. Could we therefore not simply dismiss these events as evidence of an unhealthy power struggle limited to a very particular time in our nation’s history? Will South African institutions receive a clean bill of health once the fever has abated and Zuma takes the presidential seat? Or are recent problems symptomatic of enduring institutional weaknesses?

Unfortunately, several of these institutions are likely to enter their sixteenth year carrying over symptoms of bad health. Recent infighting in the ANC exposed fundamental weaknesses in the political culture and accountability of state institutions – which will not automatically disappear with the election. We have seen the extent to which two individuals’ ambition and direction has sapped the energy of the NPA, police and intelligence services. Furthermore, political possibilities offered by the ANC’s 2007 Polokwane Conference of genuine debate and holding leaders to account, appear to have taken a backseat to the party’s strategy to deal with charges against Zuma without going to court.

Various issues deserve attention here. The failure to comprehensively address the 1999 Arms Deal is still a major source of current problems (and a judicial commission of enquiry into the arms deal is unlikely as only the country’s president can appoint one). Laws to regulate party donations from private sources have also been put on hold.

There are also indications that the basic principle of equality before the law is not firmly entrenched in our democracy. Apart from the question of whether it may be legal or constitutional to drop the charges against Jacob Zuma, it would be unfair if powerful individuals – whether they be Zuma or Mbeki – should receive more favourable attention from legal processes when compared to ordinary citizens. Granting medical parole to Zuma’s ally, Schabir Shaik, has created the impression that compassionate treatment is more likely to be meted out to the politically connected.

In short, there is little assurance that the political culture of our institutions is steadfast enough to withstand shocks caused by powerful actors seeking to use them for their own benefit.

The change in ANC leadership after Polokwane had a marked effect on the atmosphere and operations of parliament. Almost immediately, ministers and department heads faced more rigorous questioning by MPs, and government policies were scrutinized more closely than before. Problems in the Departments of Home Affairs and Health, and at parastatals like Eskom, were, for example, subjected to more rigorous debate.

However, these may have signified short-lived political opportunism rather than a longer-term culture of effective parliamentary oversight. Towards the end of Parliament’s third term, many MPs’ attitudes were again characterized by partisanship and closed thinking, particularly towards decisions to terminate the Scorpions and Pikoli’s dismissal.

Our future Parliament will need to be more astute in asserting oversight over the executive. The public needs suitable closure concerning the Arms Deal and “Travelgate” sagas, and Parliament should consider instituting civil cases against MPs to recover lost public money where appropriate.

Issues around our judicial institutions are also cause for concern. Recently our courts have treaded murky waters as political disputes have entered their arena: one which is traditionally extra-political. The battle between the Constitutional Court and Cape Judge-President John Hlophe – concerning the latter’s alleged interference in a case involving Jacob Zuma – imposed further strain on judicial credibility.

Yet our courts have at least proved resilient thus far, and there are further positive signs. The Judicial Service Commission (JSC), which investigates judicial misconduct, is finally hearing the merits of the complaint against Judge Hlophe in a process open to the public – as a result of a court ruling. Furthermore, a binding code of conduct for judges and a system of financial disclosure to help deter conflicts of interest will soon be introduced. Whether these foundations will in the future encourage a stronger ethical culture within the judiciary and a more pro-active JSC remain to be seen.

As we prepare to cast our vote, we need think further of ways to improve and fortify our institutions, particularly those most damaged by the recent leadership struggle.

E x-Justice Minister Brigitte Mabandla’s poor leadership precipitated major setbacks to the efficient functioning of this department. Vusi Pikoli’s dismissal, for example, raised serious questions about the independence and credibility of the NPA. Furthermore, tensions between various units within and outside the Justice department such as the police, prosecution and intelligence services grew under her leadership, and the director-general now faces disciplinary charges.

As the NPA’s credibility has been damaged by the way it has handled the Zuma prosecution, we will now need greater assurance that it will not be manipulated in the future. Currently, the President alone selects the NPA Head, something which is clearly undesirable, especially if the accused and president are the same person. The new minister should seriously consider creating an appointment commission or involving Parliament in appointing a suitable candidate.

As we head to the polls, we should consciously bear in mind that the shocks borne by several of our institutions – as caused by the leadership contest – have not just damaged their credibility but also exposed fundamental weaknesses. During the next cycle of government, active citizens can play a crucial role in demanding a political culture that values inclusive decision-making structures and accountable democratic institutions. Our Constitution provides guarantees relating to openness, accountability and information-sharing, and citizens need to actively ensure that such ammunition is used to correct current failings.

Shameela Seedat is based at the Political Information and Monitoring Service at IDASA

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