kameraad mhambi

Pot, Kettle, Black, originally uploaded by anataman.

Lately news from South Africa has been if not great, very heartening.

The country has been buffeted by tremendously explosive political and financial events. So far, so good.

I can not agree with commentators that the removal of Thabo Mbeki was an act of revenge AND unacceptable. Perhaps there was dollops of revenge that drove the process, but its beside the point. His position had become untenable. He should have been forced to resign along time ago.

A heartening development is the fact that ANC members are resigning in loyalty to Mbeki. This kind of political loyalty is at odds with much of African politics.

In the Criminalization of the State in Africa Bayart points out that sudden changes of allegiance - a following of the power - is a hallmark of dysfunctional and corrupt African states. Loyalty, even if misplaced is a sign that our politicians do have principles.

I can not therefore agree with archbishop Tutu (my ex boss at the TRC) that we should withhold our votes in an attempt to heal the rift in the ANC. Sipho Seepe today said it best:

Archbishop Emeritus Desmond Tutu’s pronouncement that he will not vote because of his unhappiness with the ANC is self-defeating. SA does not begin or end with the ANC. Tutu is in good company. The people of Khutsong also withheld their vote rather than vote for a different party. Too many people sacrificed their lives so that we exercise this right. We should not betray them.

But it has to be said, it’s ironic that Terror Lekota and others are complaining about the lack of democracy in the ANC. Terror is a pot calling the kettle black, even if he is right about certain distasteful tendencies in Zuma’s ANC (like threats of violence).

Steven Friedman once called this “the right issues being raised by the wrong people”. But that’s beside the point. His cheap political point scoring is politics as normal. This is how adversarial politics is supposed to work.

Normal politics is all about exploiting political Achilles’ heels in your opponent, even if your walking around half naked. But you need at least an opponent!

Therefore dear Archbishop:

A split - even a small one - in the ANC is good for the country.

Institutions strengthened

Much have been written about the merits of the Nicholson Judgment where Jacob Zuma’s trial was stopped on a technicality. In particular the finding that the prosecuting authority (NPA) must consult an accused before charging them has come in for much criticism.

I personally think consulting in this manner places a ridiculous burden on the prosecution. These arguments against the judgment might very well be found to be correct on appeal and be overturned.

But what many commentators have lost sight of is the wider implications. In particular the strengthening of the hands of the NPA due to the judgment.

Judge Nicholson has delivered a detailed and strong defense of the separation of the NPA and government. So strong as to make it very difficult and downright dangerous for individual members of government to interfere in the NPA in the future. He said:

There is no refutation that the Selebi warrants were cancelled by Mr Mpshe after political interference and that Pikoli was suspended because he refused to do so. There is an admission that Pikoli reviewed only Selebi’s case, at the request of the Minister of Justice. The other admission relates to the fact that the President suspended Mr Pikoli as NDPP, stating that there had been an irretrievable breakdown in the working relationship between Mr Pikoli and the Minister. . .

The NDPP states unequivocally that the NDPP Mr Pikoli was suspended by the President because of a breakdown in his relationship with the Minister of Justice. There should be no relationship with the Minister of Justice – certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commissioner of Police downwards. All that is clear from the Constitution, the NPA Act and the various prosecution policies, directives and codes of conduct. The suspension of the National Director was a most ominous move that struck at the core of a crucial State institution.

Nicolson questioned why Zuma was not charged with Shaik for corruption long ago.

If there was a prima facie case of serious corruption against the Deputy President there were, in my view, no reasons of public policy why he should not have been prosecuted simultaneously with Shaik. Its failure to do so brought justice into disrepute. The NDPP should either have charged the applicant or made no mention of a case of corruption.

Nicholson squarely put the blame on the then minister of justice for interfering, and calls it a serious criminal offense.

Put at its very lowest Mr Maduna seems to have played a not insignificant part in the planning of the strategy in question, whatever its end objective might be. Given the constitutional imperative for the NDPP to be totally independent, and decide without fear or favour it was a most regrettable occurrence, in the light of the fact that it also constituted a serious criminal offence.

I do hope that ex minister of justice Penual Meduna will be prosecuted for interfering in the courts as Judge Nicholson recommended.

In any event the South African Parliament also seems to be flexing it muscles. It has sent back the legislation that is supposed to end the elite police unit the Scorpions. Says constitutional law Professor Pierre de Vos:

This bold move by Parliament seems to suggest that there is a fluidity within the ANC in Parliament created by the divisions between Thabo Mbeki’s supporters and the incoming Jacob Zuma factions within the ANC. It is refreshing to see that Parliament is actually doing its job and subjecting draft legislation to the rigorous process of analysis and critique.

Prediction. Once parlaiment wields its constitutional muscle, it might just acquire some muscle memory. It won’t rid that easlily.

The case of the problematic judge Hlhophe
So too was the majority judgment in the case of the Constitutional Court vs Judge Hhophe, contrary to popular opinion a victory for the independence of the courts. Yes, the judges were split along racial lines, but not on the issues that mattered.

Advocate Michael Osborne puts it well:

Mojapelo DJP dismissed Hlophe’s prayer that the judges of the Constitutional Court had committed gross misconduct; dismissed the argument that the publication allegations in the media had violated Hlophe JP’s right to privacy; dismissed the contention that Hlophe JP’s right of access to court had been violated; and, most importantly, rejected the application for a declaration that the decision to lodge a complaint was unlawful and legally incompetent.

Once again as with the Nicholson judgment some parts of the judgment can be criticised and attacked in higher courts.

Had the court attempted to stop the Judicial Service Commission’s (JSCs) prosecuting of Judge Hlophe it would have been another matter altogether. Hlophe deserves to answer these allegations of gross misconduct which he should not have escaped last time round. But that is not what the court found.

Unlike the previous time he appeared before the JSC - in the time when Mbeki held a steely grip over all government functionaries including the courts - I predict that Hlophe would get his just deserves now. How ironic. Hlophe is after all a Zuma man.

If Hlophe is dismissed we would have won another important victory for the criminal justice system, unthinkable just a few months ago. The fact that a lower court found in the way they had - even if wrong on some counts - shows the country has an increasing plurality of opinion and independent thinking in positions of power.