2012 the year for making accountability matter
Looking back at the year as it draws to a close is a tried and tested means of reflecting on progress made, set backs suffered and the things left over for the "to do" list of the year ahead. Overall, 2011 has been a good year for the rule of law in South Africa, notwithstanding the continued adherence to the values of the national democratic revolution by many who are in positions of authority in politics and the public administration. While the notion of hegemonic control of all the levers of power in society is fundamentally inconsistent with the multi-party democracy under the rule of law that was agreed upon during Codesa and adopted as the constitutional framework of the nation, there are still enough constitutionally oriented hands on the levers of power, especially those in the judiciary, to enable any objective observer to cogently contend for a positive year for the rule of law.It is not only in the courts that there have been successes in the upholding of the values foundational to the new order in South Africa. Jacob Zuma himself must be congratulated for dismissing two of his cabinet Ministers in the wake of adverse reports on their conduct by the Public Protector. He has also placed the National Commissioner of Police, Bheki Cele, on suspension following the inability of the latter to furnish any reasonable explanation for initiating the process of entering into new leases for SAPS headquarters in Pretoria and Durban at more than three times the going rate of rentals. It is difficult to imagine that any such explanation is possible: recklessness, incompetence or worse are the only explanations that seem feasible. The role of Nedbank as financier of the whole fiasco needs to be looked at more closely.
The decision to ask a real police officer to act in place of Cele while he is facing a board of inquiry into his misconduct is also a new departure. Cele was a politician before being parachuted in to replace outgoing former school teacher, Jackie Selebi, as chief of police. The need to have a public service with a high standard of professionalism and ethics is a principle in our Constitution that is all too often honoured in the breach in the appointment processes in SA, clouded as they are by the noxious (and illegal) practice of cadre deployment in the public administration.
The Public Protector deserves an accolade, not only for the tireless work on the high profile cases but also for doggedly dealing with irregularities in the public administration at the everyday level. The actions of the President in dealing appropriately with the misconduct of ministers and the chief of police can be traced back to the painstaking work of the Office of the Public Protector. The SA Human Rights Commission has also done good work on the evils of blue light convoys, even if it is generally perceived to be a little too politically correct in what it does. Adding its voice to the multitude opposed to the Protection of State Information Bill, or secrecy law, was a step in the right direction for a body that needs to satisfy the public that it is not itself overpopulated with deployed cadres.
It is of course in the courts that the rule of law has had the most success. The Glenister judgement, in which the laws that brought the Hawks into existence were struck down as unconstitutional to the extent that they did not ensure the independence necessary to successfully fight corruption, is a major step in the direction of properly tackling the scourge of corruption.
The majority judgement in the defamation case brought by Robert McBride against the Citizen newspaper is a resounding endorsement of freedom of speech, and several judgements on eviction matters have retained the balance between property rights and the right to access to housing.
Without it even having to make a decision, the authority of the Constitutional Court so weighed on the Presidency that an about turn was made to appoint a commission of inquiry into the arms deals and the off-set deals that accompanied them without resort to arguments, when the President chose to keep his powder dry rather than engage with the mountain of evidence presented by veteran campaigner, Terry Crawford-Browne.
Other courts have also done their bit. In the Cape High Court the JSC received a roasting for having no proper and legal process for recommending judges for appointment, and in particular for refusing to appoint available and appropriate candidates in circumstances in which it preferred to keep vacancies rather than do so. The breathalyser case in the same court has had the effect of enhancing access to justice for all who are accused of driving while under the influence of alcohol.
The Supreme Court of Appeal has also not been idle. It rejected the appeal by Jackie Selebi in resounding terms and also delivered a timely and comprehensive lesson in constitutionalism in the case concerning Menzi Simelane's fitness for office as National Director of Public Prosecutions. Hopefully merit instead of party loyalty will feature in future appointments of this level of importance to the peaceful and secure future of the country.
The latter decision needs to be confirmed by the Constitutional Court in the new year, while the Glenister matter is scheduled to be finally put to bed next September when a constitutionally compliant anti-corruption agency sees the light of day and helps the country to turn away from the abyss of becoming a failed state due to corruption's corroding effects. How this is to be done is still a matter for debate, and for the "eternal vigilance" of civil society. The best suggestion for a way forward is the creation of an Anti Corruption Commission as a new Chapter Nine Institution, able to take up a specialised niche between the Public Protector and the Human Rights Commission. There are indications that the powers that be have something less in mind, they should be dissuaded from short changing the public by attempting to do the bare minimum in the all important fight against endemic corruption.
There are indications that the year ahead will be a good one for accountability. The run-up to and contestation around the December conference of the ANC and its centenary celebrations are a suitable context for reflecting on foundational values and getting back to the basics of transparency, accountability and responsiveness – the elements of the rule of law that have been expressly singled out as of special significance in the implementation of the values of our new constitutional order. Seeing off the less palatable features of the secrecy bill, resisting the notion of a media appeals tribunal and fiercely guarding the independence of the judiciary and Chapter Nine Institutions are all on the agenda. Labour law reform and the perennial problems with the delivery of the right to basic education could also feature in the year ahead. Making accountability matter in all of the deliberations and decisions on these issues will surely lead to better outcomes than if we are allowed to become distracted from the principles and values encapsulated in the Constitution.
Paul Hoffman SC
5th December, 2011
