OFTEN DESCRIBED AS an enigma while he
was heir apparent to Nelson Mandela, President Thabo Mbeki still evades
easy characterisation after occupying South Africa’s highest and most
scrutinised political office for nearly six months.Where Mandela was
readily categorised as legendary, patriarchal or magnanimous, Mbeki
remains an aloof figure who cannot be so glibly labelled. While the man
himself has yet to impress a definite image on public consciousness,
his administration has acquired or is rapidly acquiring distinguishing
features. Compared with the Mandela era, Mbeki undoubtedly heads a
tougher and more efficient administration. The message that is
filtering through to the public is that Mbeki is a leader who demands
much more from his ministers than his avuncular predecessor.
Several defining moments in the short history of the Mbeki government
flit across the mind kaleidoscopically. None is more vivid than the
arrival by plane at Mdantsane in the Eastern Cape of the
newly-appointed justice minister Penuell Maduna and safety and security
minister Steve Tshwete, accompanied by the National Director of
Prosecutions, Bulelani Ngcuka, and outgoing National Police
Commissioner, George Fivaz. Having heard that the residents of
Mdantsane, despairing of the criminal justice system, had resolved to
take the law into their own hands, the four men decided to see for
themselves what was happening on the ground. Within minutes of landing,
local officials were assembled before them and given a dressing down.
The regional director of prosecutions was summarily dismissed, while
the local police commissioner was ordered to submit a report on the
malfunctioning police service and to include the names of police
officers who had been drunk on duty.
Further images arise. One depicts Maduna and Tshwete striding through
the squalid corridors of Alexandra magistrates’ court, inspecting the
depressing courtrooms and the insanitary latrines. Another captures
Maduna, correctional services minister Ben Skosana and defence minister
Mosiuoa “Terror” Lekota on an inspection of Johannesburg Prison,
peering into the dank and overcrowded cells and verifying for
themselves that many of the inmates were awaiting-trial prisoners who
had been there for months. During that visit Maduna explained that
Mbeki had told them not to rely on secondhand reports on conditions on
the ground in court rooms, police stations, prison cells or military
barracks. He wanted them to see for themselves, thus confirming
conjecture that Mbeki, the hands-on president, was indeed the invisible
but central force behind these spectacular ministerial forays.
Yet another image comes to mind. It is police confiscating the
possessions of KwaZulu-Natal police officer Piet Meyer on suspicion
that they are the ill-gotten gains of his alleged collaboration with
the criminals he is supposed to put behind bars. A slight figure is
noticeable in the background. It is that of the head of the asset
seizure unit and long-time devoted member of the ANC, Willie
Hofmeyr.
Shortly afterwards, the Prevention of Organised Crime Act, under which
they acted that day, became the focus of controversy. In three separate
cases (including Meyer’s), High Court judges declared illegal the
seizure of assets for crimes allegedly committed before January 1999,
the date on which the law came into operation. An amendment has since
been passed authorising retrospective action, meaning that suspected
assets can be seized even though they may have been acquired before the
law was placed on the statute book. The amendment has further
strengthened the law by extending it to all crime and by stipulating
that confiscated assets will not be returned in event of a court
recision order unless and until that order has been confirmed by the
Supreme Court of Appeal.
The controversy over the law, particularly since the amendment was
passed by Parliament, raises a critical question. It is, simply,
whether, in its anxiety to take tough action against crime, the Mbeki
administration has overstepped the mark and begun an assault, perhaps
unintentionally, on civil liberties. Hofmeyr believes it has not. He
argues in a briefing paper on the asset seizure law: “The heads of
syndicates are seldom directly involved in crime. Usually their foot
soldiers are convicted. But they seldom own any of the assets. With
civil forfeiture the state can take assets and at least hurt the
syndicate heads financially, even if they cannot be convicted of an
offence. It helps deter crime by making it less profitable.”
In an interview with Focus, Hofmeyr elaborates. He contends that the
law gives the government no more power than that possessed by
individuals in civil law. Hofmeyr makes two more points: first, that
the determination of whether assets can be seized is made by a judge,
not a member of the asset seizure unit; second, that the goods can be
forfeited to the state only after a court order to that effect.
The asset seizure law can either be justified as a necessary measure
in the war against crime or condemned as the first step on the slippery
slope leading to the arrogation of power by the state at the expense of
the civil liberties of its citizens. The Prevention of Organised Crime
Act should be seen in the context of several measures that collectively
point to a hardening of attitudes against the human rights culture that
the ANC has propagated so earnestly from public platforms.
These measures include:
- The crackdown on hawkers by the Greater Johannesburg Metropolitan
Council, with the confiscation of property by a special unit, the
destruction of stalls by overzealous officials and the use of teargas
to scatter recalcitrant traders. These actions are reminiscent of the
apartheid era, the destruction of which was the central purpose of the
ANC when it was in exile and campaigning for power rather than
exercising it.
- The closure of taxi ranks and the barring of some thoroughfares to
taxis in burgeoning urban areas settled almost exclusively by black
people. These areas include Soshanguve, Mabopane and the Winterveld,
all of which are located in the labyrinthian urban complex spreading
around Pretoria like a besieging army.
- The iron-fisted action against squatters in Greater Johannesburg
ordered by the Gauteng provincial government. Once again one has the
surreal sensation of travelling back in time to the supposedly interred
apartheid past. There are the same official disclaimers: the death of a
squatter is not the fault of the officials who ordered the blitz
against illegal settlement; its origins lie in the anti-social
attitudes of the squatters and their refusal to heed instructions
issued by officials acting in the interests of law and order.
While the provincial and local government authorities, all under the
control of the ANC, are almost certainly not responding to direct
orders from Mbeki or even his lieutenants, they appear to be taking a
cue from the no-nonsense attitudes which emanate from the presidential
office. The tough actions of senior ministers in Mbeki’s cabinet,
particularly Tshwete’s exhortation for a total war against criminals,
seem to have encouraged ANC barons in the provincial and local tiers of
government in Gauteng to resort to similar tough-minded actions against
the hawkers, taxi-drivers and squatters.
Significantly, the Human Rights Commission (HRC) has expressed concern
that human rights are being relegated in the list of priorities as the
Mbeki government increasingly accords a higher priority to law and
order, the fight against crime and delivery.
In a report to the HRC last month, its chairman Barney Pityana, wrote:
“Since the last plenary meeting, the commission should note signs of a
deterioration in the human rights environment in which we operate. It
appears that the government strategy is, at best, to play down the
human rights basis of our constitutional system. Cabinet ministers no
longer express commitment to human rights and several high profile
actions suggest that human rights have been more of a burden to the
drive to tangible outcomes in the struggle against crime in
particular.”
Pityana goes on to single out two ministers for criticism. He
identifies Tshwete as the most visible manifestation of the new
attitude and Maduna for his conspicuous silence when as justice
minister he is the line-function minister for the protection of human
rights. Pityana’s report should be read with an earlier warning by
Professor Wilmot James, the former executive director of Idasa (the
Institute for Democracy in South Africa). Long before Mbeki succeeded
Mandela, James anticipated in a confidential letter to the head of the
Open Society Foundation in New York (leaked to Mbeki and the press in
November 1998) that a Mbeki presidency would be “tougher” and “more
obscure”. As a result, he wrote, it would need “closer and more
demanding democratic and human rights monitoring”. A flood of criticism
from the ANC descended on Idasa and the unfortunate James as a result
of this leak. The future president himself, who was reportedly furious,
declared that the institute appeared ready “to trade in lies, deceit
and disinformation in order to justify its funding”.
The hardening attitude against the human rights culture should also be
linked to the government’s tough stand against the public-sector unions
and increasing attacks on the judiciary. In August, in what could be
construed as an attack on the right to free collective bargaining,
Mosiuoa Lekota, as ANC National Chairman, tore into delegates to the
Cosatu special congress warning them that the public criticism of
government policy they had been indulging in “smacked of revolutionary
indiscipline”. Since then — as it has a perfect right to do in pursuit
of its overall economic policy — the government has refused any further
negotiations on the its public-sector pay offer and simply imposed
it.
The government has not hesitated to attack the judges, and
Constitutional Court judges in particular, by publicly implying that
they do not work hard enough. Judges have been criticised by the ANC s
parliamentary spokesman on justice, Johnny de Lange, for failing to
apply minimum sentences for serious crimes, including rape, hijacking
and armed robbery. Many in the judiciary argue forcefully against
minimum sentences, contending that they encroach on their independence
and inhibit the unprejudiced application of the law. But Ngcuka has
given notice that his office will appeal when it considers that judges
had handed down “grossly inappropriate” sentences. “I intend to ensure
that the law is applied properly and that judges abide by these laws,”
he states, thereby implicitly damning unnamed judges for not applying
the law.
These criticisms appear to provide a platform for the announcement by
the parliamentary committee charged with responsibility for the status
of women that it intended to summon Judge John Foxcroft to explain his
decision to sentence a man who raped his 14-year-old daughter to
imprisonment for seven years. The relevant law provides for a mandatory
life sentence unless the judge concludes that there are substantial and
compelling reasons for a lighter sentence (which Foxcroft, noting that
the culprit was a first offender and not a threat to society, believed
pertained in the case before him). Later the parliamentary committee
remembered its political manners and changed its phraseology, saying
that it planned to invite judges and magistrates to share their
perspectives on the new legal dispensation in relation to gender
equality. By then, however, the two highest judges in the land, Chief
Justice Ismail Mahomed and Constitutional Court president Arthur
Chaskalson, had issued a strong statement defending the independence of
the judiciary. “A member of the judiciary cannot properly be summoned
or even . . . required to explain or justify to a member of the
legislature or the executive any judgment given in the course of his or
her judicial duties,” they declared.
Since the June 2 election Mbeki and his ministers have also
unequivocally asserted their executive authority over the top of the
public service. No fewer than 17 directors-general or heads of
department have been replaced, relocated or not had their contracts
renewed. Like their replacements, almost all of them are ANC
members.
These anxieties about politically-directed intrusions into civil
society and the judiciary should be seen against the increasing
concentration of power around Mbeki, first as ANC president and second,
since his inauguration as South Africa’s second democratically elected
president on June 16, as the head of government and of state.
As ANC president-elect he sought and won from the ANC’s 50th annual
conference in Mafeking in December 1997 the power to appoint ANC
provincial candidates for the premiership in the run-up to elections.
He exercised that prerogative on the eve of the ANC’s emphatic triumph
in the June 2 elections when it won 66.36 per cent of the votes cast in
the national elections and 266 of the 400 seats in the National
Assembly. He deliberately by-passed two sitting premiers, Mathole
Motshekga in Gauteng and Mathews Phosa in Mpumalanga, both of whom were
provincial chairmen of the ANC. He then chose trade union leader
Mbhazima Shilowa to replace Motshekga and the unknown Ndaweni Mahlangu
to replace Phosa.
It is not irrelevant to note that Motshekga decisively defeated the
man favoured by Mbeki, Frank Chikane, in an open democratic contest in
1997 for the provincial chairmanship of the ANC. Having failed to
secure a man of his choice by democratic means, Mbeki reverted to the
expedient of appointing his man, Shilowa, to the position in the May
1999 (though delegates to the ANC 1997 conference voted to grant him
that seemingly dictatorial power). In Mpumalanga, Phosa had made the
mistake in late 1997 of signalling his intention to campaign for
election as the ANC’s deputy president, thus opposing Jacob Zuma, the
man chosen by Mbeki to serve in that position. Even though Phosa was
placed first on the list of provincial candidates by delegates from
Mpumalanga, Mbeki’s nod went to the little known Mahlangu.
When the ANC members chosen by Mbeki as candidates for the premiership
in the nine provinces were presented to the press, they all lined up
dutifully like school prefects to receive his blessing. Their posture
and demeanour signalled their gratitude to Mbeki and public
acknowledgement of their subordination to him. It was another of the
moments that seem to symbolise the nature of the Mbeki presidency. Of
course, Mbeki’s power now extends beyond the ANC per se, though the
party remains the foundation on which his authority ultimately
depends.
As Douglas Gibson of the Democratic Party has noted, the presidential
office already has a bigger staff than the combined offices of the
president and the deputy president under the Mandela administration —
334 against 296. Gibson pointedly asks whether South Africa is
witnessing the re-emergence of an imperial presidency. In so doing he
is reminding South Africans of the imperial presidency under P.W.
Botha, who at the height of his power strutted across the political
terrain like a demi-god.
Mbeki’s power is not constrained in the least by his deputy. Jacob
Zuma is no match for Mbeki, either in innate intellect or the acquired
skill of political manoeuvring. He is there to do Mbeki’s bidding and
dutifully represent the government in the National Assembly. After
Mbeki himself the most powerful man is the minister in the president’s
office, his old friend and loyal comrade Essop Pahad. Described by
critical commentators as Mbeki’s political hitman, Pahad has also been
labelled Mbeki’s prime minister. While Pahad rejects the designation,
it is probably not far off the mark, though the post is an extension of
Mbeki’s power, not a rival to it.
Democratic Party leader Tony Leon complains that Mbeki’s behaviour
suggests that he thinks he is no longer accountable to Parliament or
answerable to the people it represents. “Not once since 30 June has
Parliament seen or directly heard from President Mbeki,” said Leon in
an address to the DP in the Western Cape on September 23. “The
Constitution is, in effect, being by-passed and ignored. Parliament is
. . . being sidelined or allowing itself to be marginalised.” That
impression, he says, is reinforced by Mbeki’s decision to relocate his
office permanently from Cape Town to Pretoria.
If Mbeki’s relationship with Parliament has mainly been characterised
by his absence from it, there was one memorable occasion on June 28
when the new president responded to the Opposition parties after his
state of the nation address. The scene had been set a few days earlier
by Mbeki’s new man in Mpumalanga, Premier Ndaweni Mahlangu. To the
astonishment of political observers, Mahlangu — replying to criticism
of his appointment to the provincial cabinet of a politician who had
allegedly lied — justified lying by politicians. There was nothing
unusual about it and it was acceptable, he said. In parliament on June
28 the Opposition parties, led by the DP, demanded that Mbeki repudiate
Mahlangu. But Mbeki refused, noting that Mahlangu had admitted “his
grievous error” and “apologised to his comrades, the people of his
province and the country”. Instead he rounded on the minuscule African
Christian Democratic Party (ACDP), accusing it of espousing “a mean,
angry, vengeful, soulless and retributive theology”. Describing them as
men who adorned themselves in the garments of high priests, he
chastised them for being devoid of the quality of mercy.
“Representatives of the ACDP stand up in Parliament and declaim: He is
down, crucify him! Crucify him! Crucify him! Crucify him!”
Only days before in his opening address to Parliament Mbeki had
reaffirmed his commitment to honest, transparent and accountable
government. Yet he could not bring himself publicly to chastise
Mahlangu for his justification of mendacity in politicians or his
appointment of Jacques Modipane. Yet, by Mahlangu’s reckoning, Modipane
had falsely denied that he had signed a promissory note ceding
Mpumlanga’s parks to a foreign developer in return for a multimillion
rand loan to the parks board.
Mbeki, who aspires to statesmanship and who seeks to promote an
African Renaissance, had an opportunity to respond in a dignified
manner to a moral crisis for the ANC. Instead he behaved like a
lower-rung politician, launching a vicious diversionary attack on the
ACDP and the DP, which he accused of being home-grown Tories and
seeking to legitimise the domination of the dominant. It was
reminiscent of his attempt to deny that he had offered Inkatha Freedom
Party leader Mangosuthu Buthelezi the deputy presidency on condition
that the IFP in KwaZulu-Natal allow an ANC man to takeover as premier
in the province. “I don’t know who started those rumours,” Mbeki told
assembled journalists, knowing full well that Buthelezi had taken out
an advertisement in the Zulu newspaper, Ilanga, stating that he turned
down the offer because of the condition attached to it by the ANC.
Mbeki’s reply, like his response to the Mahlangu controversy, smacked
of the very arrogance of power that he had pledged to avoid.
Mbeki’s refusal to condemn Mahlangu publicly was followed in August by
his appointment of Parks Mankahlana as his official spokesman. Where
Mahlangu sought to sanitise lying by politicians, Mankahlana, who
served as presidential spokesman under Mandela, earned the sobriquet
Pinnochio for his role last year on the eve of the then president’s
marriage to Graca Machel. Inundated with queries from journalists
throughout South Africa and even beyond its borders, he repeatedly
denied that a date had been set or that the wedding was imminent. Even
after his appointment to Mbeki’s office, he continued to justify his
attempt to mislead the press. “If I had lied about pension payouts,
that would be something,” he told the Sunday World. But whether he
acknowledged it or not, his credibility was severely damaged by the
episode.
That Mbeki has selected a provincial premier who justifies dishonesty
in politicians and an official spokesman who is known to have lied to
the media is hardly an auspicious start. Mbeki may succeed in rolling
back crime, excising the culture of entitlement and transforming South
Africa into, in his words, “a nation at work” with its associated
images of an industrious and self-reliant people. But there are nagging
doubts. Archbishop Desmond Tutu’s response to Mbeki’s attempt to
prevent publication of the Truth Commission’s conclusion that the ANC’s
armed struggle was not without moral blemish comes to mind: “We can’t
assume that yesterday’s oppressed will not become tomorrow’s oppressor.
I won’t be surprised if it happens here.”