Although the year has not yet ended we can say it has been marked by a series of crises. What is troubling is that there is no sense that these will be resolved in the near future. There is also a sense that every revelation of wrongdoing that contribute to these crises, is without consequence. While being sufficient to lead to the removal of a range of officials in many democratic states, it seldom leads to the removal of wrongdoers here. Certainly, those at the centre of the rot remain in place.

There is no space to unpack all the components of this crisis? Politically the crisis lies in the undermining of democracy through acts of illegality, coexisting with a sense of impunity. The wrongdoers believe they enjoy this, because the police up till now, and the prosecuting arm have not taken steps to bring to book people who have been responsible for siphoning off billions through acts of “state capture” and other criminal activities. The actions of the law enforcement agencies are selective, hovering over those who are perceived as problematic to President Jacob Zuma, as with former Finance Minister, Pravin Gordhan and now author, Jacques Pauw, while tardy in prosecuting those involved in corruption and state capture. This is not simply the conduct of a few “bad eggs” but is part of the pattern of institutional functioning in this period.

Earlier, President Zuma had been able to evade multiple charges of fraud, corruption and money laundering, relating to his relationship with Shabir Shaik prior to becoming president. The sums involved now seem paltry in the light of the billions that are at stake in this time, where Zuma has ceded many powers, belonging exclusively to the state, to the Gupta family. 

The decisions relating to Zuma’s charges have not up till now led to his facing charges as an accused. Nor has the prosecuting authority shown any desire to act, beyond joining Zuma in every appeal relating to their reinstatement. The charges had been dropped, as courts have now held, without legal basis in 2009. Zuma is impervious to repeated court decisions saying he must face the charges and the NPA has sought to evade making a decision on the matter, although as things stand today, the charges have been restored.

Last week the North Gauteng High Court effectively said that the appointment of the current head of the NPA cannot stand and that he must vacate office in 60 days. Because the president is conflicted in relation to appointment of a head of the NDPP insofar as that person will make decisions on the charges he faces, the court held that the Deputy President must decide on who replaces the current head, Adv. Shaun Abrahams, whose independence was questioned). (http://ewn.co.za/2017/11/20/zuma-can-t-appoint-npa-head-with-serious-charges-hanging-over-his-head).

The ink was hardly dry on the judgement and without any time to properly study its content, when the presidency announced it would appeal. Shortly thereafter some of the civil society applicants in the case indicated that they would move quickly to have the Constitutional Court ensure that the judgment takes immediate effect. (https://www.news24.com/SouthAfrica/News/battle-over-abrahams-exit-20171209)

Judicial overreach?

The courts have come to play a prominent role in relation to a series of attacks facing the country, affecting the fiscus and other resources, needing to be safeguarded from theft and fraud. That recourse has been had to the courts relates to the political disarray within the ANC-led government and that there is no coherent political force, adequately equipped to displace that organisation as ruling party.

The economy has had its ratings reviewed downwards on more than one occasion this year, returning to the junk status of the late apartheid years. The rating agencies have themselves indicated that governmental instability generated by firing of ministers of finance, failure to control rising debt and other factors evoke the sense of instability that prompted their moves. And it is the present incumbent of the presidency, Jacob Zuma who has made most of the decisions that have affected confidence in the economy, both locally and internationally –and beyond that, adversely affected the wellbeing of the people of South Africa, whose resources have been depleted. 

There are two reasons why the courts have been drawn in. On the one hand, the president and government as a whole, including parliament have acted in ways that contravene the constitution. Because of their numbers they have been able to endorse what is illegal and unconstitutional. In the face of these numbers, opposition parties have resorted to the courts who have reluctantly entered areas where political contestation and decision-making ought to prevail. The courts have engaged these questions insofar as they are charged under the constitution with ensuring that constitutionalism is observed.

But the resort to the courts indicates that on the one hand the ANC has not been able, to date, to remove a president who has acted contrary to his oath of office and also through publicly demonstrated malgovernance and illegality. This has entailed diverting public funds to private benefit, and thus reduced that which could be used to alleviate the conditions of the poor.

Not all ANC MPs and Ministers are crooks and many have found themselves in the difficult situation of negotiating their being bound by caucus or cabinet decisions, and what their personal integrity tells them. In recent times, sections of the ANC have found their voice and engaged in extensive interrogation of state owned entities and the operation of SARS and other state agencies that many believe to have been “captured”.

What is the role of the opposition in parliament? While the opposition parties scored important victories in the municipal elections in 2016, holding the ANC below 50% of the national vote, they have not been able to evoke confidence that they will sustain this and be able to rule together in 2019. On the one hand, some of these loose alliances or coalitions have been very fragile and on the other, the electorally strongest partner in the municipal and metro coalitions, the DA, has not demonstrated the political maturity needed to manage these political relationships.  This is evident in how the Nelson Mandela Bay disagreements were handled, where the UDM deputy mayor Mongameli Bobani may have been unreasonable in his conduct as an ally.  But the DA has not demonstrated the flexibility needed as the strongest party. It stands to lose most from a breakdown and consequently needs to bend over backwards to hold the alliance together. It did not demonstrate that maturity. It is also illustrated by the DA calling for the dissolution of the national parliament without consulting its allies. There was no rule requiring consultation, but politically more experienced leaders would know that it is a recipe for breakdown if one does not seek the consent of allies in so high profile an initiative. 

In addition, the DA may not have made serious electoral gains since 2016 and it also faces internal divisions, to some extent attributable to battles for positions. These divisions appear to be most serious in their “showcase” province and city, Western Cape and Cape Town. Unless these divisions are contained the DA will confirm the fairly widely held cynical view which contends that given the chance to possess political power, the DA will behave in the same way as the ANC.

Institutional dysfunctionality

The internal ANC battles for positions and factions formed around personalities and patronage, has had a negative effect on state functioning that has led to failure to provide basic human needs, where the resources to do so have been available. Michael Komape a five-year-old died in one of the most shameful casualties of this time, falling into a pit toilet and drowning through swallowing faeces. The court heard that the budget for provision of school toilets has not been spent. Officials told the court that they had sought to comfort the family by telling Komape’s mother that “accidents do happen”. It was possible that Komape and other small children could have been able to use safe toilets. There has just not been the human willpower to ensure that the poorest section of the population enjoy their right to safety at school. This coldness towards the poor and vulnerable goes beyond the question of toilets and extends to living conditions in general, where many people still exist in situations where there are no safe recreational facilities and a range of atrocities like infant rape occur, fairly frequently.

The crisis continues?

Even though the economy has taken several knocks, mainly related to actions of Zuma as president of the country he is likely to remain in office, irrespective of who becomes ANC president after the December conference.  Zuma will not go voluntarily and the organisation is insufficiently united to have a sufficiently clear majority to force him out of office.

The country requires an alternative, with less fixation on the “race” for the ANC presidency as providing immediate solutions to our problems. Nor is that alternative offered by an array of opposition parties who do not share a common vision, though their combining in alliances against the ANC have been significant.

In order to rebuild our political life and recreate sustainable democratic conditions we need debate and organisation around a vision for the present and the future. That should include all parties but also a wide range of sectors of society who share an interest in building a country that observes the law, now that the legal system is a defender of our rights. It must involve all who want to defend our resources and use these in order to banish poverty and take decisive steps towards employment for all, in an environment of safety and mutual respect. Organisation needs to be systematically developed and to do so requires patience and openness, as well as  willingness to compromise where that will make possible a unified force that can end the pillage and rebuild our democracy.

Raymond Suttner is a scholar and political analyst. He is a Part-time Professor attached to Rhodes University and an Emeritus Professor at UNISA. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His prison memoir Inside Apartheid’s prison has been reissued in 2017, with a new introduction covering his more recent “life outside the ANC” by Jacana Media. He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner