What to do About the Steady Erosion of the Rule of Law in South Africa?
When expelled ANC Youth League leader Julius Malema was criminally charged last month, he alleged political interference in the criminal justice system. This reflects a widespread belief that the rule of law is under threat in SA.
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Zuma were withdrawn.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.