South Africa: Democracy, Rule of Law, and the Future

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written by
Karl Beck
Southern Africa Projects Director

After a smooth start in the early post-apartheid period, South Africa’s ruling party, the African National Congress (ANC), is increasingly afflicted by contradictions between its idealistic principles and the baser behaviors of many of its officeholders. These behaviors currently include threats to institute tighter controls over the judiciary and the ANC’s civil society critics, especially the independent media. A discernable trend toward intolerance of judicial brakes on executive power, and also toward a general aversion to any criticism of executive policies and actions, raises troubling questions about the future of democratic governance in South Africa.

The South Africa chapter of Human Rights Watch’s 2012 World Report states that the country “continues to grapple with corruption, growing social and economic inequalities, and the weakening of state institutions by partisan appointments and one-party dominance.” The 2011 Mo Ibrahim Index of African Governance shows that although South Africa ranks fifth overall among African governments, its scores have consistently declined over the past five years, with a significant reduction in scores for rule of law, accountability, and participation. Freedom House’s Freedom of the Press report downgraded South Africa from Free to Partly Free status in 2010. With the recent passage in the National Assembly of a bill aimed at prohibiting public access to information about many decisions and acts of government officials, the downward trajectory appears set to continue. In South Africa and elsewhere, many people who were inspired by the liberation of the country from apartheid are asking with concern, “What’s happening?”

Unfortunately, nearly two decades after the end of apartheid, South Africans’ racial differences continue to define their politics. In terms of high political philosophy and statements directed to foreign audiences, the ANC represents itself as multiracial and committed to the “Rainbow Nation.” However, party leaders demand unwavering support from black South Africans, routinely reminding such voters who liberated them from white domination. Indeed, the sufferings of the liberators in apartheid-era jails and foreign refugee camps have been likened to the Crucifixion, and President Jacob Zuma is fond of saying that the ANC will govern “until Jesus comes.” The ANC’s sense of historical entitlement to perpetual rule, and acquiescence to this conceit by a majority of the 80 percent of South Africans who are black, keep the ANC in power and constitute major obstacles to the development of a mature South African democracy. With no real chance of losing power, elected and appointed officeholders too often ignore the obligations of public service and accountability. Regrettably, many ANC leaders seem to view the operation of get-rich-quick schemes for themselves and their allies as the key role of successful politicians.

The Democratic Alliance (DA), the official opposition in the National Assembly and the only opposition party that can effectively challenge the ANC in at least a few provincial and local elections, enjoys majority support among South Africa’s nonblack minorities—the mixed-race “coloureds,” whites, and Indians. The DA serves an important purpose in exposing the ANC’s mistakes and crimes, but, absent the advent of genuine nonracialism in South African society, the DA’s 20 percent racial base of support offers scant promise that it might someday rule South Africa.

During the lengthy struggle for South Africa’s liberation, the ANC was supported by the Soviet Union, and many ANC leaders were educated in Soviet universities. The central position of the Communist Party in Soviet governance became a model for the ANC’s consolidation of power in South Africa. The supreme body in South African politics is the ANC’s National Executive Committee (NEC), which when fully constituted has 88 members, elected every five years by local ANC chapters. Starting with the first universal suffrage elections in 1994, direct election of local and provincial government officeholders and National Assembly members was replaced with a proportional rolls or party-list system that gives party leaders strong powers of promotion and control over elected officials. The rolls system has effectively made the members of the ANC NEC the real rulers of South Africa. As the ANC Youth League president told an audience of South African business leaders, “The South African government is only a subcommittee of the ANC.”

Entitlement has spawned arrogance among some ANC leaders who were once fighters for justice and human rights. When 79 members of the National Assembly were exposed in the media for cashing in airline tickets that had been purchased for official travel and pocketing the reimbursements from a travel agency, the ANC’s majority in the assembly allocated public funds to purchase the travel agency’s account ledgers and sequestered the evidence. This action blocked further public scrutiny and any chance that the culprits could be held accountable in a court of law. It is unfortunately only one example of the ANC’s accustomed practice of giving its wrongdoers official protection as long as they remain in good standing with the party leadership. A number of ANC leaders have been implicated in the misappropriation of government funds, and some have reportedly been involved in crimes including influence peddling, drug smuggling, human trafficking, and murder. Yet prosecutions are rare. When asked to estimate the number of corrupt officials now serving jail sentences, prominent attorney George Bizos replied, “Fewer than the number of my fingers.”

Meanwhile, national development and the delivery of services to citizens have lagged despite ANC leaders’ earnest campaign promises. Health and education systems have especially suffered from government neglect, and widespread dysfunction in local governments has prompted public demonstrations, which in some places have been countered with police violence. These problems have been compounded by the ANC’s policy of “deployment,” whereby the selection of candidates for government jobs at all levels is inordinately influenced by the candidates’ perceived loyalty to the ANC rather than by the possession of requisite professional qualifications.

With the National Assembly and most national, provincial, and local government bodies largely under ANC control, the Zuma government is presently targeting private media and the independent judiciary as elements that allegedly  require increased executive supervision. It is worth noting that not long after the wife of the minister of state security (intelligence) was convicted, amid extensive media coverage, of drug smuggling, the same minister was leading the ANC’s effort in the National Assembly to muzzle the media through passage of secrecy legislation. Many South Africans are asking whether the secrecy bill is primarily intended to shield government leaders and their families from public scrutiny and prevent detection of their wrongdoing. Separately, President Zuma and other ANC leaders are promoting the initiation of an as-yet-undefined mechanism to officially “review” Constitutional Court judgments. Zuma has complained publicly that Constitutional Court judges place themselves above the National Assembly, whose members, according to his logic, must be supreme because they have been “freely elected by the people.” Both initiatives are assaults on South Africa’s status as a constitutional democracy.

A further cause for concern is the effort by “traditionalists” within the ANC to vest judicial powers in hereditary chiefs and transform assemblies of chiefs, together with tribal elders, into courts of first instance for 14 million rural South Africans. Such traditional courts would operate under procedures and customs that in most tribal groups preclude authority roles for women and would involve practices that conflict with South Africa’s liberal constitution. One glaring example is the precept in tribal domestic law that a woman is a minor in the custody of her husband and his family. In some tribal groups, women are even prohibited from entering the place in a village where the chief sits with elders. If a woman seeks to address the chief, she must shout her statement from a distance or send a man to make the statement on her behalf. Another concern relating to the allocation of judicial powers to chiefs is the influence they would have over the legal status of persons residing in their areas of jurisdiction. Those out of favor with a chief could be denied identity documentation, and their rights as citizens, even the right to vote, could be abridged. A similar system has been used in Zimbabwe by the ZANU-PF party of President Robert Mugabe to limit the number of registered voters.

In the ANC, closing ranks against outsiders is considered an imperative, but in fact there is declining comity among members. Prominent ANC provincial leaders and extraordinarily rich party power brokers jockey for advantage, and some of their methods are quite brutal, with incidents of physical assault on the increase. In December 2012, the ANC will hold a conference to elect the party president and ultimately the next South African president. Zuma, still in his first terms as party and state president, is facing a revolt by powerful factions that want to displace him and his allies so as to gain greater access to positions and resources for themselves.



Photo Credit: World Economic Forum

Zuma’s future could also hinge on a March 20 ruling of the Supreme Court of Appeal, which ordered the national prosecutor to show the DA documents related to the prosecutor’s 2009 decision not to pursue 783 corruption charges against Zuma. The Supreme Court found that the DA has standing to demand the documents in the public interest. The charges involved an arms deal during the presidency of Thabo Mbeki, when Zuma was vice president, in which foreign suppliers of weapons, ships, and airplanes had bribed senior South African officials. The man who served as Zuma’s go-between with the arms dealers has already been convicted for facilitating the bribery of Zuma. However, shortly before he became president, Zuma succeeded in having the legal proceedings stopped, citing evidence that the prosecutor had manipulated the timing of his case to improve the political prospects of Mbeki, then Zuma’s principal rival. But the charges against Zuma have not been judged on their merits, and if the Supreme Court decision eventually opens the door for a trial, Zuma’s position as president might become untenable. Within days of the March 20 judgment, the justice minister, an ardent Zuma ally, moved to add the Supreme Court to the executive branch’s review of judicial decisions, which had initially targeted only the Constitutional Court. This response  has been viewed by most commentators as a raw expression of pique.

At present, South Africa risks entering an antidemocratic spiral from which it would be difficult to escape. The Southern Africa region, of which South Africa is the wealthiest and most powerful country, includes seven states whose ruling parties have been in power without interruption since independence. During 2012, these parties’ cumulative years of incumbency will reach 237. The South African contribution is the smallest at 18 years. Although the region includes regimes ranging from dictatorships to democracies, there is a perceptible drift in even the more liberal states toward authoritarianism and impatience with the messy inconveniences of political pluralism and a free society.

South Africa is widely viewed as the flagship of both Southern Africa and sub-Saharan Africa as a whole. The present incremental weakening of representative and accountable government in the country therefore has both national and continental implications for human rights, the rule of law, and the quality of governance. Corruption, which is both an agent and a beneficiary of the erosion of democracy, is a potent threat to economic development and the alleviation of poverty. A South African government that continues to accommodate corruption while hacking away at independent institutions will serve neither the legitimate interests of South Africans nor the hopes of millions of others that South Africa might lead the continent toward a better future.

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