We need Big Institutions, not Big Men

zilleBack in 2005, a man walked into a Home Affairs office in Johannesburg, brandished a toy gun and held the branch supervisor hostage for six hours. The man had been waiting for his ID document for two years, and he was making the point that he was not prepared to wait another minute.

He received an enormous outpouring of sympathy from fellow South Africans who shared his frustration with Home Affairs.

But, despite cheering him on, most South Africans instinctively knew that if everyone who gets frustrated with poor service brandished a weapon (real or not) and seized hostages, South Africa would disintegrate into anarchy. Which would mean no service delivery at all.

Our real challenge is to improve the institutions of governance, entrench their independence and improve their accountability. Achieving this is much more difficult than periodic outpourings of impotent rage.

Disruptive actions will get you into the news, but they seldom get you the outcome you want, unless you are the type of politician who believes that building a support base is an end in itself, rather than a means to the important end of better governance.

These thoughts crossed my mind as I watched the EFF disrupt Parliament with their chants of #PayBackTheMoney to demonstrate that they were not prepared to tolerate Jacob Zuma’s obfuscation on Nkandla for another minute.

Sharing their frustration, the response was a chorus of cheers from across the political spectrum, including the 62% of voters who had sidestepped their own responsibility for holding the President accountable through the ballot box on 7 May.

But the risk to the future of South Africa was also crystal clear in that moment.

Showing contempt for Parliament in different ways, both Jacob Zuma and Julius Malema demonstrated their disdain for the institutions of our democracy.

There is a critical lesson in this. The undermining of effective, independent institutions (like Parliament, the Judiciary, the Police, the Public Prosecutor and the Press) is the real reason why transitions from authoritarian rule to democracy on our continent rarely succeed at the first attempt.

“Big men” emerge (ironically often through democratic elections) who then consider themselves above the institutions that exist to hold them accountable. Indeed, the typical “big man” politician quickly moves to “capture” both public and private institutions, using them as instruments of power abuse to persecute his opponents and protect himself.

If we want democracy to work in South Africa at our first attempt, we need to build and protect “big independent institutions” before they are destroyed by “big men” like Jacob Zuma and Julius Malema. These one-time bosom buddies may now be mortal enemies, but they are still two sides of the same coin.

The only way we can prevent the fight between these two political bull-elephants from trampling the new grass-shoots of our democracy, is by using our democratic institutions effectively, to hold them accountable.

While the drama in Parliament dominated the media, most observers missed that it was, in fact, a great week for democracy in South Africa, as key institutions flexed their independent muscle like never before.

And while short-sighted pundits proclaimed the EFF the new “official opposition”, the Democratic Alliance notched up one victory after another, not by destroying our institutions but by using them effectively to enforce accountability.

Even the EFF’s faux-show of holding Jacob Zuma accountable in Parliament would not have been possible if the DA had not taken the Nkandla complaint to the Public Protector (one of our strongest independent institutions) in the first place.

The DA has such a long history of achieving results through using the power of independent institutions in the way the constitution intended, that it does not make news anymore.

But it is extremely newsworthy to note that the battle to entrench democracy has never enjoyed so many victories in quick succession as we saw last week — a development that political commentators mostly missed amidst the sound and fury of the EFF’s failed attempt to get answers from the President in Parliament.

Each one of the DA’s victories was a long time in the making, but that is another hard lesson about building a democracy. It happens through slow pain-staking steps that often take many years, not guerrilla theatre.

We saw the success of a constitutional instrument that has never been used effectively before: a commission of enquiry set up to probe the reasons for the breakdown of trust between the community and the Police. Clause 127 of the constitution gives the Premier of a Province the power to establish such a commission, and I did so in 2012 when I appointed two eminent, independent jurists to investigate the reasons behind a spate of vengeance “necklace” killings in Khayelitsha.

Instead of accepting the use of this constitutional mechanism, the then National Police Minister Nathi Mthethwa was determined to prevent police accountability and fought the Commission all the way to the Constitutional Court. Fortunately the courts at every level remained independent enough to beat back the Minister, and clear the way for the commission to hold the police accountable.

The result, which has been welcomed by Mthethwa’s successor, Minister Nathi Nhleko, is a comprehensive and measured analysis of policing in Khayelitsha, with 16 practical recommendations, replicable countrywide, that could transform policing.

Another big victory for democratic accountability was last week’s dismissal, by the Western Cape High Court, of SANRAL’s “secrecy application” to prevent details about its plans to toll the N1 and N2 becoming public, including information on tarriffs and revenue.

The DA-run City of Cape Town challenged this decision and won — which was a far more effective strategy than all the protests that followed SANRAL’s imposition of e-Tolls in Gauteng, including Premier David Makhura’s “toy gun” task team.

And then there’s Nkandla, put squarely on the agenda by the DA, through the institutions of our democracy. New milestones in this saga this week included the reconstitution of the Parliamentary ad-hoc committee that met for the first time and the declassifying of the Public Works Task Team’s Nkandla Report through the Western Cape High Court.

But the week’s most significant development — the Appeal Court’s “Spy Tape” judgement handed down in Bloemfontein — will also go down as one of the most important moments in South Africa’s progress towards entrenching democratic accountability.

In a unanimous judgement, the Appeal Court flayed the National Prosecuting Authority for assisting President Zuma’s Stalingrad defence, and ruled that within five working days the Spy Tapes would be handed to the DA. In addition the full “record of decision” must be handed to retired Judge Noel Hurt to filter “privileged material” from the rest of the record, to which the DA is also entitled.

Once we get these records, we will be able to determine whether, back in 2009, the NPA withdrew charges against Jacob Zuma (on 700 counts of corruption, fraud, money laundering and racketeering) for valid legal reasons, or whether the reasons were essentially political, in order to pave the way for Zuma to become President.

Trying to predict what will happen, come D-day on Thursday, takes us into speculative territory, but these are the possibilities:

1. The deadline comes and goes without the NPA handing over the tapes.

Given the history of the case over the past five years, another round of stalling is not beyond the realm of possibility.

The cost of further delays is unlikely to deter the President whose costs in this matter already amount to almost R10-million of taxpayers’ money. His last legal move would be an application to the Constitutional Court to forestall the day of reckoning.

But given that his own lawyer, Kemp J Kemp, conceded in the Appeal Court that Zuma had no case, it is hard to see what argument they could make to the Constitutional Court.

Failure to give us the tapes, in the absence of a further appeal, will also place the National Director of Public Prosecutions in contempt of court. In these circumstances we would not hesitate to call for a warrant for his arrest.

2. The tapes suddenly go missing.

That will not be fatal to our case. In fact it will help us demonstrate what is going on here. If the tapes were missing, why would President Zuma’s legal team have fought so hard to prevent them from being made public? And if there is no clear legal reason in the rest of the “record of decision” for withdrawing the charges, we can make a strong case to re-institute the corruption charges.

3. The tapes are handed over, but there are question marks over their authenticity.

Alarm bells sounded earlier this month when former crime intelligence head, Mulangi Mphego, questioned the content of the tapes that supposedly convinced former NPA head Mokotedi Mpshe to drop all charges. Mphego claims to have listened to the recordings and says that they bear no resemblance to what Mpshe was describing. Naturally, we will ensure that we verify the tapes’ authenticity through forensic experts.

4. We receive the tapes and are satisfied that they are indeed authentic.

If they turn out to be the “damp squib” that so many have predicted, they will have an explosive impact. Because this will prove that the charges against Jacob Zuma were not the result of a “trumped up” political conspiracy. And the reasons for withdrawing them will be exposed for what they are.

This will be a far greater crisis for Zuma even than the money that he has to repay for the Nkandla upgrades.

Despite his protestations to the contrary, he will not be keen to get his “day in court” and nor will the ANC be keen to see him there.

But when the biggest man in South African politics faces our biggest institutions, our independent Judiciary, there will be no place left to hide.

It will have taken many years, and cost millions of Rands, but it will be a bargain if South Africans learn, at this early stage in our democracy, that strong, independent institutions are priceless.

Helen Zille

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