South Africa

Tomorrow will mark Desmond Tutu’s 77th birthday and he continues to crusade for justice both in South Africa and globally. Tutu is no stranger to controversy, but when all is said and done he has been a vital figure in his time, the central moral voice within South Africa during the last years of Apartheid and the public face of the Truth and Reconciliation Commission. He would have been lauded had he settled for peaceful retirement years ago, but instead he goes on strong. Let us hope he continues as a voice of conscience and goodwill for many years to come.  

The FW de Klerk Foundation has released correspondence between the former president and current president Thabo Mbeki in which the former expresses her concerns about the encroachment on the independence of the country’s judiciary. Mbeki provided assurances to de Klerk that the government is committed to judicial independence and to upholding the constitution.

I have agreed with de Klerk over very little over the years. Although he deserves credit for his role in bringing apartheid to an end, even as he engaged in the negotiation process his government fomented violence and engaged in dirty tricks. His reticence to confront his part in the instability of the early 1990s and his unwillingness to participate in the TRC process except in the most perfunctory fashion served to undermine South Africa at a time when the TRC needed the support of prominent members of the National Party. It still galls me that de Klerk shared the Nobel Peace Prize with Nelson Mandela.

That said, his concerns about the judiciary are apt. And in coming months things will only get dicier as Jacob Zuma maintains his collision course with the country’s criminal courts. South Africa cannot afford for its judicial branch to become embroiled in, or at least compromised by, politics.

The corruption charges against Jacob Zuma either have legal merit or they do not. If the charges are baseless, they should be dropped. If there is a legal foundation to move forward, the process should play out.

This seeming truism comes to mind in light of the Friday protests by eThekwini ANC members who marched on Durban police stations demanding that the charges against Zuma be dropped and South African Communist Party (SACP) concerns that the trial will do damage to South Africa politically and financially.  There is at least some merit to the idea that a trial could have serious destabilizing effects on South African politics in the short run. But so too would dropping the charges for reasons unrelated to the legal merit of those charges and would merely replace one angry population for another.

An independent judiciary is the hallmark of any liberal democracy. As fraught as a Zuma trial might seem, far worse would be creating the impression that members of the country’s elite are above the law. The charges must go forward unless over the course of the legal process members of the judiciary decide not to pursue them any further because they doubt the legal merits of the case.

In the wake of the xenophobic violence that engulfed Gauteng earlier this year the government set up camps for those foreigners displaced by the chaos. Those camps were set to close on 15 August, but a group of foreign nationals has brought an application for relief to the Constitutional Court to keep the camps open. The court will meet tomorrow to hear that application. What they decide will be crucial to the well being of a vulnerable population in South Africa.

It appears that the curious case of Cape Judge John Hlophe might reach its resolution soon one way or the other. Hlophe has been accused of trying to influence judges on the Constitutional Court to rule favorably for Jacob Zuma in one of the stages of the ANC President’s corruption case. Hlophe has applied to the Witwatersrand Local Division asking that the court have the Constitutional Court’s actions ruled invalid. That hearing, the first of its kind in the country’s history, was to take place today.

If the court grants Hlophe’s application, this sordid little incident will represent little more than a footnote in South Africa’s always lively political history. But if Hlophe suffers defeat his case will almost certainly provide part of a chaotic backdrop against which Zuma’s political hopes will play out.

Jacob Zuma would like to have the corruption charges against him thrown out. Barring that, he hopes that a policy of delay will buy him time to find a way out of his crisis. He knows that in some circles among his allies and among those who have not taken sides there is a hope that there is some way out of this mess that will not destabilize the ANC further, and thus destabilize South African politics and society.

Judge Chris Nicholson on Tuesday announced that his decision on whether to toss the corruption charges (per Zuma’s application) will not be made until next month. In the interregnum Zuma, his lawyers, and his political supporters (and probably not a few of his detractors) will feverishly work on finding some compromise, pulling some levers, and finding some rabbits to pull from hats in order to stave off what in ordinary circumstances might seem like an inevitable trial that may well not go well for the country’s presumed next president.

Jacob Zuma desperately wants to avoid the corruption charges that he faces. The talk when I was in South Africa was that the charges would be thrown out, less on the merits than out of a sense of expediency. At the same time, Zuma needs the charges either to go away or to be weakened to the point where he can reasonably argue that he faces a political witch hunt. Conviction on charges that have sent some of his alleged co-conspirators to prison would presumably sound the death knell for his presidential ambitions.

For all of these reasons, today’s decision by South Africa’s Constitutional Court that the search and seizure of Zuma’s property was proper looms as a particularly grim defeat, especially coming as it does just days before Zuma’s lawyers are going to try to have the corruption charges against him dismissed. The court also dismissed Zuma’s appeal to stop the National Prosecution Authority (NPA) from utilizing documents that had been part of the case against Zuma’s convicted former financial advisor Schabir Sheik on charges of fraud and corruption similar to those the ANC leader now faces.

Even more ominous for Zuma, the first decision came with only one dissent. The second was unanimous. Thus the country’s highest court, which has for some time been presumed to be pretty evenly split along, for lack of a better conceptual framework, Zuma-Mbeki lines now appears to be fairly united in terms of its attempts to focus on the matters of law in the Zuma case. The Constituional crisis that many observers thought might come to pass as the result of the supposed divisions on the court appear to have been dramatically overstated or else have been ameliorated for the greater good. Either way, Jacob Zuma is having a bad day.

Crises tend to escalate quickly in South Africa. Just weeks ago there were precious few South Africans who could have identified John Hlophe, the Cape Judge President. Now he is at the center of a row over his alleged involvement in the ongoing arms scandal that some are calling “the greatest showdown in South Africa’s legal history.” Let us assume that this charge is hyperbolic – from the Treason Trials to Jacob Zuma’s forthcoming charges related to those Hlophe faces, the country has not lacked for legal drama, especially in the era after 1948. Nonetheless, the fact that it can be written speaks to the gravity of this crisis.

The ANC is standing behind Hlophe, who adamantly rejects all of the charges, nationally as well as in some of the provinces.  As usual in South Africa, it is difficult to discern where justice, loyalty, and politics converge and where they separate. One tends to assume that all decisions are in some way political. Whether that is cynicism or realism talking, I’ll let readers decide. 

The Foreign Policy Association has published another of my Great Decisions Analysis pieces. “The Vlok Trial and a Reconciliation With the Truth” looks at the recent criminal proceedings against Adriaan Vlok, South Africa’s Minister of Law and Order in the 1980s, and four other members of the security apparatus for a bizarre attempted murder that involved the attempted poisoning of the underwear of anti-Apartheid cleric Frank Chikane in hopes of killing him with neuro-toxins.

The case involves the intersection of my two main areas of interest in South Africa: the state response to the anti-Apartheid movement in the 1980s and the post-Apartheid push for truth, reconciliation, and justice. Almost literally as the piece was posted, it was announced that Vlok pleaded guilty along with his co-accused. By working out a deal, Vlok was able to avoid jail time, though he did receive a ten-year suspended sentence and one assumes that these may not be the last charges he sees.

(Cross-posted at dcat.)

Opposition parties are making hay out of recent crime statistics indicating that some forms of crime are on the rise:

“We are alarmed at the increase in murder (2,4 percent), the 118 percent increase in bank robberies, 52,5 percent increase in robberies at business premises, the 21,9 percent increase in cash-in-transit heists, and the sharp increase in robberies at residential premises (25,4 percent),” Inkatha Freedom Party [IFP]  spokesperson Velaphi Ndlovu said in a statement. “It once again proves without doubt that crime is out of control in South Africa and that the levels of crime remain alarmingly high, despite empty government promises,” he said.

Inkatha’s spokesmen are balancing legitimate fears with the typical opportunism of politicians, to be sure. But they also are reacting to the realities that KwaZulu-Natal, for example, the IFP’s locus of power, is experiencing increasing rates of criminality. (Though the Western Cape remains South Africa’s “murder capital,” and leads in other alarming categories as well.)  Despite the dispiriting news on the crime front, Safety and Security Minister Charles Nqakula has made it clear that he will not resign.

One positive indicator comes from Hillbrow, where crime rates have been dropping, and where, perhaps more significantly, the perception of crime (which is as big a problem as actual crime in South Africa) the perception of danger has waned. And perhaps Hillbrow can offer a lesson for the furure: Increased police presence and community vigilance has seemingly directly correlated with the positive changes. The obvious solution is better policing and more police, though national, provincial, and municipal governments are financially stressed to the point where such solutions are easier to envision than to implement. Still, given the direct and indirect costs of crime, it would seem that more and better policing would increasingly become one of the domestic policy priorities in the year to come.