Bokamoso | To fortify our Democracy we must fortify our Institutions

It is quite telling that the biggest threat to the survival of our democracy does not come from an outside force or some insidious and secretive insider plot, but from an official, well-documented and proud ANC policy.

Formalised at the ANC’s 50th Annual Policy Conference in 1997, the party’s official strategy of Cadre Deployment has seen a pushing of party-loyal appointees into positions of power and influence for almost two decades now. Over this period, nothing has played a bigger role in the erosion of South Africa’s public service.

Cadre Deployment cuts across all three branches of government (Legislative, Executive and Judicial), all three spheres of government (National, Provincial and Local), and extends beyond government into state-owned enterprises.

The goal is unambiguous and transparent: to expand the reach and influence of the ruling party so that the affected institutions effectively become extensions of the party. In addition, it also offers the president an endless source of “rewards” for loyalists who are prepared to forego independence and critical thought in exchange for good positions.

The result has been a catastrophic breakdown of administrative capabilities in government, and particularly at local and provincial level. The toxic combination of maladministration, waste, nepotism and corruption that inevitably follows cadre deployment at these spheres of government has led to a near-collapse of basic service delivery across most provinces and hundreds of municipalities.

However, at national level, this cadre deployment policy has an even more sinister intention: the capture of critical institutions in order for the ruling party to gain complete centralised control of the state. This not only extends their reach and influence, it also safeguards the president and his powerful clique from prosecution, effectively offering them a license to loot.

Cadre deployment is a direct threat to the principle of separation of powers, it’s a threat to our Constitution and it’s a threat to the normal functioning of our democracy. It is of utmost importance that we safeguard our institutions if we hope to prevent our country’s slide towards dangerous majoritarianism and, ultimately, a failed state.

The DA’s detractors will say that we’re just trying to shift the goalposts mid-match, but only the most naïve (or the most blindly loyal to the president) will deny that recent actions and utterances by several senior government figures should serve as a massive wake-up call to each and every South African.

These actions include helping Sudanese president and wanted war criminal, Omar Al-Bashir to escape the country in contravention of two High Court orders (followed by worrying remarks by ANC General-Secretary, Gwede Mantashe, that court orders such as these will be disregarded from time to time).

These actions include the open disdain and contempt that the ruling party displays towards the office of the Public Protector when findings go against the party or the president.

These actions include a long line of questionable appointments, such as that of Nomgcobo Jiba as Head of National Prosecution Services at the NPA, despite a mountain of evidence pointing to her unsuitability for the position (including findings by both the Supreme Court of Appeal and the KwaZulu-Natal High Court, as well as a bid to see her disbarred).

It can be argued that more had to be done to firewall our institutions from the abuse of power back when our Constitution was being drafted, as many of these appointments are in line with the document. But remember for a moment where our country was twenty years ago, and what the mood was. Nelson Mandela was our president, liberation movements were unbanned, sanctions were lifted and former enemies were sitting down together to pen the world’s most progressive constitution.

No newlywed enjoys discussing a prenuptial agreement because “it will never happen to us”. In a way, we were that starry-eyed newlywed. And now that we find ourselves in an abusive relationship with our president, we must urgently look for ways to protect our interests. This means putting steps in place that will keep our democratic institutions robust, independent and beyond the reach of any individual or faction.

On Thursday, we tabled a plan to do just this. In a document titled Defending our Democracy: The DA’s Plan to Firewall Key Institutions, we outlined steps to prevent the further erosion of our democratic order. This document covers seven critical institutions or positions, including the National Prosecuting Authority (NPA), the Judiciary and Judicial Services Commission (JSC), the Office of the Public Protector, the Independent Electoral Commission (IEC), the South African Revenue Service (SARS), the National Police Commissioner and the Inspector-General of Intelligence.

It’s a twenty page document, and I highly recommend you read it in full. But I will share with you here a summary of our recommendations for each of these presidential appointments.

National Prosecuting Authority (NPA)

Over the past decade, no institution has seen more political meddling than the NPA, with the appointment of a string of compromised Zuma loyalists as National Director of Public Prosecutions (NDPP). These have included Mokotedi Mpshe, Menzi Simelane, Nomgcobo Jiba and, recently, Shaun Abrahams. We have also seen the president use the same powers to remove the independent-minded Vusi Pikoli and Mxolisi Nxasana.

To ensure the independence of the NPA, it is crucial to ensure that its head, the NDPP, has security of tenure. And the only way to achieve this is by having him or her appointed (or removed) by the National Assembly, and not by the president alone.

The DA will introduce a Private Member’s Bill which will seek to amend the Constitution to allow for the appointment of the NDPP on recommendation of the National Assembly, with a vote requiring support of at least 60%. The Bill will also propose amendments that ensure that the NDPP can only be dismissed by the National Assembly following a finding of misconduct, incapacity or incompetence by a parliamentary committee.

We will also seek to secure the NPA’s institutional independence by removing it from the authority of the Minister (although still providing for ministerial oversight) to prevent inappropriate interference.

The Judiciary and Judicial Services Commission (JSC)

The ability of a state to deliver justice to all its people, without fear or favour, rests squarely on the independence of its judiciary, and this requires the appointment of the right people to the bench.

Our Judicial Services Commission consists of politicians, judges and representatives of the legal professions, and we at the DA agree with this. But the balance leans far too heavily in favour of politicians, and this makes it susceptible to undue influence. Currently the JSC consists of 23 to 25 members, of which six are members of the National Assembly, four are from the National Council of Provinces and four are directly appointed by the president.

The DA will reintroduce a Private Member’s Bill (which was initially introduced in the fourth parliament) that will see the JSC shrunk down to a size at which it can function properly. The directly elected (NA and NCOP) members will be halved and the four presidential appointees will only participate in the selection of judges where the president does not have a discretion.

In addition, the appointment criteria for judges will be split into two stages, with the establishment of the candidate’s qualification preceding considerations of race and gender (as is the case with appointments for the heads of Chapter Nine Institutions).

Chapter Nine Institutions:

  • The Office of the Public Protector

The Office of the Public Protector has been a mixed bag, and appointees have ranged from the effective if low-key Selby Baqwa to the unashamed deployed cadre, Lawrence Mushwana to Thuli Madonsela. The latter’s commitment to performing her duties “without fear or favour” has seen her frequently cross swords with the president and several of his high-ranking allies, and has brought into sharp focus the need to shield this institution from political meddling.

From vicious public attacks to simply disregarding her findings, President Zuma and the ANC have made it very clear that they do not respect her office and do not agree with her independence. Her term comes to an end next year, and we can expect the president to be far more careful about whom he appoints next.

  • The Independent Electoral Commission (IEC)

Our electoral watchdog is a publicly funded body that is accountable to Parliament, but operates independently from government. It has five Commissioners – all of whom are appointed by the president – and it is tasked with delivering regular, free and fair elections.

Until recently, the IEC had been viewed as credible and independent, but the appointment in March of Zuma ally, Glenton Mashinini, as IEC Commissioner (with the help of the ANC’s parliamentary majority) has cast a large shadow of doubt over the institution.

The budgets of the Office of the Public Protector, the IEC and the other Chapter Nine Institutions are located within the budget appropriations of various government departments, making them susceptible to abuse (and creating the impression that they are accountable to these departments). The DA agrees with the 2006 Asmal Report that recommends that all the Chapter Nine Institution budgets should form part of Parliament’s Budget Vote, as this will restore the independence of these bodies.

We further believe that Parliament’s Rules Committee should establish a Standing Committee on Institutions Supporting Constitutional Democracy – in other words, a separate committee of Parliament to oversee Chapter Nine Institutions.

In the case of the IEC – to firewall the body from future interference – we believe that the Home Affairs portfolio committee should continue to shortlist and nominate IEC Commissioner candidates, but that the recommendation of the committee should require the support of at least 60% of the National Assembly before being passed on to the president.

The South African Revenue Service (SARS)

The functioning of the South African Revenue Service is crucial to the effective running of the country, and it goes without saying that it must be able to collect taxes without fear or favour. For the first two decades of our democracy, SARS’s reputation remained intact, but by the end of last year this began to unravel as President Zuma started picking the institution apart in an attempt to avoid personal scrutiny.

With Zuma ally, Tom Monyane, now at the helm, the heat has been turned off the president. Shortly after Monyane’s appointment he suspended then acting Commissioner, Ivan Pillay and Chief Strategy Officer, Peter Richer. This was followed by reports of a “rogue investigative unit” within SARS.

There is clearly a lot more that the ANC do not want us to know, and the DA agrees with the long-awaited Sikhakhane Report that a judicial commission of inquiry should immediately be appointed. This commission should investigate the nature of this alleged covert unit, the legality of Pillay and Richer’s suspensions and how, if at all, this unit had influenced any regular SARS investigations.

The National Police Commissioner

Our Constitution grants the president the power to appoint the National Police Commissioner, but one need only analyse events surrounding the three most recent appointments to realise just how politicised this position has become.

Not one of Jackie Selebi, Bheki Cele or Riah Phiyega are or were career police officers. They did not come from the ranks of SAPS, and were deployed to this crucial role as loyal ANC cadres. And it showed. Under all three of them, confidence in SAPS plummeted. Both Selebi and Cele had to vacate the position in disgrace, and you wouldn’t bet against the same happening to Phiyega.

The first step in restoring confidence in SAPS is to end all political appointments and only consider candidates for National Commissioner on the basis of their abilities and relevant qualifications.

The DA recommends a constitutional amendment to ensure that the National Police Commissioner is selected by a multi-party committee of Parliament, with the president performing only the formal act of appointment.

The Inspector-General of Intelligence

The Inspector-General of Intelligence is tasked with monitoring the compliance of the intelligence services with our Constitution. He or she is responsible for investigating complaints of maladministration, abuse of power and transgressions of the Constitution. It’s a position with wide-ranging powers, allowing for unfettered access to Crime Intelligence, Defense Intelligence and State Security Agency files.

Needless to say, given these sweeping powers, it is imperative that this person is impartial and independent. He or she most certainly cannot be a deployed cadre with party loyalties. And yet, the ANC tried everything in its power recently to appoint Cecil Burgess – a card-carrying ANC member, former ANC MP, former Chair of the Joint Standing Committee on Intelligence, former Chair of the Parliamentary Committee that forced through the contentious Secrecy Bill and former Chair of the Committee that gave us the whitewashed Nkandla Report – to the position of Inspector-General of Intelligence.

The DA believes it is time to consider amending the relevant legislation to require the appointment of a retired judge for the position of Inspector-General of Intelligence. This will most likely result in the appointment of a person who will abide by the Constitution, and who will serve impartially and independently.

There are many other areas of the public sector where cadre deployment has cause untold damage – municipalities, provincial governments, the boards of Eskom, SAA, Transnet, the SABC… the list goes on and on. But we must start somewhere, and the seven institutions I have listed here are the most crucial when it comes to guarding our democracy.

Presidents will come and go. Cabinets will come and go. Parliaments will come and go. The boards of state-owned enterprises will come and go. And throughout all of this, the constant must be the underpinnings of our democracy: our Constitution, the Rule of Law and the crucial institutions that stand guard over our democratic system.

If we want to be certain that any president or administration leaves our democracy as strong and robust as they found it, we must ensure that the institutions that hold this democracy together are 100% tamper-proof.

If the last decade has tought us anything, it’s that we should never again say “it won’t happen to us”.

Mmusi Maimane
DA Leader

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