Saturday, October 06, 2012

South Africa: What to do About the Steady Erosion of the Rule of Law in South Africa?

Source: ISS

What to do About the Steady Erosion of the Rule of Law in South Africa?

Hamadziripi Tamukamoyo and Gareth Newham, Researcher and Programme Head, Crime and Justice Programme, ISS Pretoria

Following an eight-year legal battle, in April 2009 the National Prosecuting Authority (NPA) announced that it was ‘neither possible nor desirable for the NPA to continue with the prosecution of Mr Zuma’. Then acting National Director of Public Prosecutions (NDPP) Advocate Mokotedi Mpshe explained that although there was no problem with the evidence in the case against President Jacob Zuma, ‘the legal process … is tainted’. So despite the existence of considerable prima facie evidence supporting 783 charges of corruption, money laundering, racketeering and bribery, the charges against Zuma were withdrawn.

What made this decision so controversial was that it had been made on the basis of illegally obtained ‘intelligence’ tapes with questionable veracity. The fact that Mpshe plagiarised a failed Hong Kong judgement to explain his decision raised further questions about its legality. When Zuma’s Minister of Justice later shopped around for a judicial appointment for Mpshe, it lent considerable weight to speculation that Mpshe was being rewarded for making a political rather than a legal decision, as required by the Constitution.

Fast-forward to 21 September 2012, when a warrant of arrest was issued for expelled former African National Congress Youth League (ANCYL) president Julius Malema. A few days later Malema and his associates appeared before the Polokwane regional court on various charges of fraud, corruption and money laundering. Malema himself faces a single charge of money laundering. Like Zuma, Malema decried the charges, arguing that they were politically motivated and the criminal justice system was being misused. This was vehemently denied by the Hawks investigating Malema.

Of course, Malema is entitled to his opinion, but unfortunately it is supported by a growing body of evidence that state security agencies are being misused for political ends and that politically connected individuals are protected from prosecution in South Africa. This is a fundamental threat to the rule of law that South Africa has increasingly faced since then President Thabo Mbeki and Zuma went to war over control of the ANC.

At the time Malema was allegedly receiving kickbacks from dodgy tenders, Zuma stated that ‘Julius has illustrated that he is indeed a good leader and that he understands the people’. It appears that the fraudulent activities were allowed to go on because Malema, who played a pivotal role in propelling Zuma to power, was still a favourite of the ruling ANC elite. Indeed, the ANC does not expel people for stealing money that is meant to improve the lives of the poor. Malema was expelled primarily because he started questioning Zuma’s leadership.

After the Marikana tragedy Malema heightened his frontal attack on Zuma as he shuttled back and forth in the platinum belt making speeches to miners. This was something that most ANC leaders and National Union of Mineworkers (NUM) representatives could not do as the miners have long felt that they had been forgotten. By exposing the leadership crisis in the ANC, Malema most likely hastened any decision to prosecute him. This is reminiscent of the vicious battle between Mbeki and Zuma in the run-up to the Polokwane elective conference, which eventually led to Mbeki’s losing his position as the ANC president.

On 28 September the Mail and Guardian online edition reported that Sports Minister Fikile Mbalula ‘was concerned about the alleged leaking of confidential information by state law enforcement agencies in order to subject Malema to an apparent trial by the media and cast aspersions on him in the court of public opinion’. Lending credence to accusations of political interference in the Malema matter is the statement by the Hawks investigating officer that investigations have not yet been completed. Why would the Hawks rush to court if their investigations were not complete?

If there is hard evidence of money laundering or corruption, this evidence should be tested before a court of law. However, this rule is clearly being applied selectively. A number of high-profile cases involving fraud and corruption against politically connected officials have disappeared or have been withdrawn by the NPA.

Recent examples include:

· The absence of criminal action against politically connected individuals involved in corruption at the highest levels of the Department of Correctional Services. This despite the previous head of the Special Investigation Unit (SIU) stating three years ago before parliament that investigations had been completed.

· The withdrawal of the various criminal charges against former crime intelligence boss Richard Mdluli.

· The absence of a criminal investigation against former police boss Bheki Cele and former Minister of Public Works Gwen Nkabinda-Mahlangu for the illegal multi-million rand police headquarters lease deal.

· The NPA withdrawing charges of fraud and corruption against KwaZulu-Natal Economic Development MEC Mike Mabuyakhulu and the province’s legislature speaker Peggy Nkonyeni.

The common thread joining the above cases is that all these individuals have been vocal supporters of Zuma and the ruling ANC elite. The recent KwaZulu-Natal case is instructive of where the problem lies: before the charges were withdrawn, it was reported in various newspapers that the acting provincial head of the NPA in KwaZulu-Natal, Simphiwe Mlotshwa, was experiencing interference in the case from Deputy Director of Public Prosecutions (DPP) Advocate Lawrence Mrwebi.

Serious questions were raised about Mrwebi’s integrity after he withdrew criminal charges against Mdluli despite various independent legal opinions arguing that the charges should be pursued. It has been claimed that Advocate Moipone Noko replaced Mlotshwa because he had resisted interference from Mrwebi to withdraw the charges. Noko promptly dropped the case. If the charges against these individuals had not been sustainable, surely there would have been no need to interfere in the due process of the law?

A critical issue in the organisational renewal of the ANC is its ability to demonstrate that it is indeed committed to the principle of the rule of law. This is a vital foundation for a prosperous future for South Africa. A first step is to ensure that allegations of corruption against high-ranking officials are investigated by the agencies that are capable of uncovering evidence, such as the Hawks. The growing trend of politicians referring their cases to the Public Protector is of deep concern. This agency is not part of the criminal justice system and does not have the capacity to undertake the type of investigations necessary to uncover sophisticated forms of corruption.

Secondly, the NPA should cease withdrawing charges against powerful individuals but allow the courts to decide on the merits of the case. In its recently released National Development Plan, the National Planning Commission indicates that the fight against corruption cannot succeed unless:
  • Agencies that are tasked with investigating and prosecuting corruption are protected from political interference
  • Whistle-blower protection is strengthened
  • The awarding of large tenders is centralised in a single agency
  • Corrupt officials are held personally accountable for their actions
Under the current administration, the rule of law has eroded steadily as too many appointments to the senior echelons of the criminal justice system tend to lack the necessary integrity, experience or skill. Until this situation is reversed it is unlikely that the ANC will be able to fulfil its promise of a ‘better life for all’. Until those that head our criminal justice agencies have reputations for being beyond reproach, the prevailing situation of ‘an excellent life for a few at the cost of the many’ will continue unabated.