Tough at the top

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:

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.”