SPEECH BY FORMER PRESIDENT F W DE KLERK TO THE COLLEGE HISTORICAL SOCIETY OF TRINITY COLLEGE, DUBLIN
SOUTH AFRICA IN TRANSITION – AFTER POLOKWANE
I should like to thank the College Historical Society for its kindness in presenting me with its medal for Outstanding Contribution to Public Discourse. This is a great honour, indeed, coming as it does from an organization with such a long and distinguished tradition – that has been addressed by so many world leaders.
The recent ANC National Conference in Polokwane was probably the most significant political development in South Africa since 1994. It signaled the complete victory of the alliance’s left wing over President Mbeki in its proclaimed struggle “for the heart and soul of the ANC.” The left wing comprises the trade union confederation COSATU, the South African Communist Party and the ANC Youth League.
President Mbeki’s defeat has created a radically new situation in which the political centre of gravity has shifted from the presidency to the new ANC leadership that was elected at Polokwane. Although the Polokwane victors have given assurances that the ANC’s underlying policies have not changed, much will depend on how those policies are interpreted and which aspects will in future receive the greatest emphasis.
The ANC adopted a number of controversial resolutions at Polokwane.
One of them calls for far-reaching reforms of the judiciary that must be implemented before “the end of the present term of government” together with “past resolutions” – presumably a reference to the bitterly contested constitutional amendments that were introduced and then withdrawn two years ago.
The judicial reforms would include the establishment of the Constitutional Court as the single apex court – thus removing the status of the Supreme Court of Appeal as the final arbiter of all non-constitutional issues. The concern here is that all issues will in future fall under the more politically minded Constitutional Court – rather than under the juridically focused Supreme Court of Appeal. Only four of the eleven Constitutional Court judges are required to have already been judges before their appointment to the court.
The resolutions also call for the transfer to the Minister of Justice of ultimate responsibility for “the administration of courts, including any allocation of resources, financial management and policy matters”. The fear is that he who pays the piper might call the tune.
In addition, they include a warning that the courts should not unduly encroach on areas that are the “responsibility of other arms of the state”. This might be intended to limit the courts’ powers to require government to take practical steps to assure constitutional rights through the provision of anti-retroviral drugs and basic housing.
The Polokwane resolutions include proposals for the dramatic acceleration of land reform. The conference was highly critical of organized white commercial agriculture which it described as “the outcome of centuries of dispossession, labour coercion and state subsidy for the chosen few”. In its resolutions it makes a renewed commitment to “fundamental changes in the patterns of land ownership through the redistribution of 30% of agricultural land before 2014.” It calls on the state to “expropriate property in the public interest” and to award compensation “in accordance with the constitution, with special emphasis on equity, redress and social justice”. They call for the abandonment of “market-driven land reform”; immediate review of “the principle of willing-seller, willing-buyer” and the alignment of all legislation relating to expropriation with the Constitution.
This is presumably a reference to the proposed new Expropriation Act that would give the State the power to determine compensation values after the transfer of expropriated land, leaving the former owners the choice of either accepting the State’s award or instituting lengthy, expensive and uncertain challenges in the courts.
The resolutions also called for moves to limit “large-scale, capital intensive, environmentally damaging agriculture” through the introduction of “a special land tax and other progressive tax measures” and through the creation of incentives for the disposal of under-utilised land and the deconcentration of land ownership. Such a move would seriously undermine the viability of commercial agriculture.
South African journalists were concerned by new attacks on the media at the Polokwane conference. The delegates declared that the ANC was “faced with a major ideological offensive, largely driven by the opposition and factions in the mainstream media’. They claimed that the key objective of their media opponents was the “promotion of market fundamentalism and the creation of perceptions aimed at retaining “old apartheid economic and social relations”.
The Polokwane delegates believed that the media should instead “contribute towards the building of a new society; that they should be accountable for their actions; and should have a specific responsibility for ensuring that arts and culture serve the purposes of the ANC’s National Democratic Revolution.
They said that “the right to freedom of expression should not be elevated above other equally important rights such as the right to privacy and more important rights and values such as human dignity”. Most controversially, they called for an investigation into the establishment of a Media Appeals Tribunal to “strengthen, complement and support the current self-regulatory institutions”. The Media Appeals Tribunal would be a statutory institution, accountable to Parliament, which would adjudicate over matters or complaints expressed by citizens against print media.
Another controversial resolution requires the dissolution “as a matter of urgency” of the Directorate of Special Operations – popularly known as the Scorpions – a highly successful and independent crime-fighting unity that has brought many organized criminals, fraudsters and corrupt politicians to book. This decision contradicts Section 179(2) of the Constitution which gives the prosecuting authority the power “to carry out any necessary functions incidental to the instituting of criminal proceedings”. The recommendation would clearly affect the ability of the Director of Public Prosecutions to investigate and prosecute crimes committed by senior members of the government, the public service and the security forces. The ANC delegates were particularly incensed at the role that the Scorpions had played in the preparation of the case against its newly elected leader – Mr Jacob Zuma. They believed that the unit had been misused by President Mbeki to settle scores with this political opponents.
Disturbingly, the Polokwane delegates recognized few borders between their party and the State. They called on “all senior deployed cadres in various centres of power” – presumably including the public service and the security forces – “to go through political classes to understand the vision, programme and ethos of the movement.” The incoming National Executive Committee was instructed “to give strategic leadership to cadres deployed in the state and to improve capacity to hold cadres deployed accountable” to the movement.
The resolutions called for an approach to the naming and renaming of geographic places “which should include principles such as the need to change offensive names representing colonial conquest and apartheid statehood”.
Presumably this could lead to the renaming of many geographic locations that presently have names derived the heritage of the Afrikaans and British-descended communities. They also called for the adoption of “one emblem for all sports national teams” – possibly ringing the death knell of the springbok emblem in rugby.
Finally, the resolutions left little doubt regarding the ANC’s domestic and international ideological orientation: it is based on unambiguous opposition to the “hyper-power” – the United States; transnational corporations; capitalism – which is described as an exploitative socio-economic system underpinned by the “hyper-power”; and to Israel.
In “the battle of ideas” the ANC declared its support for the “developmental state, collective rights, values of caring and community solidarity, ubuntu, non sexism, etc”. It is opposed to “the mainstream media’s ideological outlook – neo-liberalism, a weak and passive state, and overemphasis on individual rights, market fundamentalism, etc.”
However, the main reality to emerge from Polokwane was the clear shift in power from President Mbeki and the State to the new ANC leadership and the SACP/COSATU/CAN tripartite alliance.
This has created an adversarial relationship between the Presidency, where Thabo Mbeki remains in charge of government, and the ANC’s headquarters at Luthuli House where Jacob Zuma leads the newly elected National Executive Committee.
It mirrors a similar situation in 1989 when I became leader of the National Party and my predecessor, P W Botha, remained as President. Despite my best efforts the relationship did not work – and there are few signs that the new ANC leadership is making any significant effort to lessen the discomfort of President Mbeki. An uneasy transition period lies ahead which has no doubt been exacerbated by the bitterness of the leadership struggle that preceded the Polokwane conference.
Jacob Zuma is, at present, the official ANC candidate for the national presidency in the parliamentary elections due by mid 2009. However, he is also facing serious criminal charges ranging from corruption to tax evasion. Should he be found guilty on any charge and sentenced to a year or more in prison without any softer options, he will be disqualified from holding political office for five years.
Mr Zuma’s trial, which is scheduled to begin on 4 August, is likely to last for several months and will consume a major proportion of his time and energies. This may present an insurmountable impediment to his taking over the Presidency in 2009. If he fails to do so – most of the smart money is on ANC Deputy-President Kgalema Mothlante to take over as South Africa’s next President.
The two centres of power between the Presidency and Luthuli House raise some serious constitutional questions. President Mbeki’s choice of “business unusual” as theme for his speech at the opening of parliament encapsulates, perhaps unintentionally, the novelty of the situation.
According to the new Treasurer General of the ANC, Mathews Phosa, “…the elected ANC structures hold the ultimate power in this situation and all structures and leaders of the governing party will account to them”.
As a matter of real politik and party discipline he may well be right. His view has been echoed by cabinet spokesperson Themba Maseko, who concedes that “ …there is only one centre of power and that is the ruling party.”
This situation creates some serious constitutional anomalies. The Constitution, our supreme law, sets up a system of checks and balances of power in which political parties, even dominant ones, do not feature. The President, together with his cabinet, exercise executive authority. They are all accountable to parliament. Our independent judiciary is subject only to the Constitution and the law. It is available to apply the law without fear, favour or prejudice. The multi-party system of government has been fashioned to ensure accountability, responsiveness and openness – and not to present alternative centres of sovereignty.
The vital question is whether the Courts will allow Luthuli House to elevate itself above the Constitution. The track record of the Courts suggests that they will stand firm.
Justice Chaskalson, when President of the Constitutional Court laid down that:
“The exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.”
Judge Johan Froneman, was even more explicit in February this year when he ruled that:
“… the conduct of all public officials, from the highest to the lowest, as well as the conduct of private person or juristic persons, is subject to judicial scrutiny. Put in other words, the exercise of all power, public or private, is in the end subject to judicial scrutiny and adjudication. The nature of judicial adjudication remains the same no matter who is involved, but the degree or intensity of judicial scrutiny or review may vary, depending on the kind of power exercised and the interests affected by the exercise of that power.”
This means that everyone and every organization in South Africa – including the ANC – is subject to the Constitution. The ANC’s Polokwane resolutions must also comply with the Constitution and the Bill of Rights and could be challengeable in court. Accordingly, the two centres of power controversy might be based on a false argument. In reality, there is only one source of power in South Africa – and that is the Constitution.
South Africa – as so often before in its history – is entering “interesting times”. I remember previous periods when our less stout-hearted compatriots despaired about the future. I think back on the dreadful times we encountered in 1985 – when we were confronted by internal insurrection, international isolation and the collapse of international confidence in our economy. I think of our winter of discontent in 1992 – when the ANC had pulled out of the constitutional negotiations and was attempting to achieve its objectives through rolling mass mobilization in the streets.
The difference between our problems then – and the challenges that we face after Polokwane – is that we are now armed with an excellent Constitution supported by independent courts. Also, our views – and not those of our opponents – are now in step with those of the rest of the world. Accordingly, I remain confident about the future of South Africa. Our people have a special ability to succeed and to overcome challenges. We astounded the world in 1994 and we shall astound them again. After all, we did score 438 runs against Australia – the world champs – in the most fantastic cricket victory in One Day International history. We still have the ability to pull off miracles!