CONSTITUTIONAL CRISIS OF FIRST MAGNITUDE

Paul Trewhela
The ANC as prime suspect in arms deal corruption

It is clear that South Africa has now fallen into a constitutional crisis of first magnitude, the most dangerous since the re-constitution of the state in 1994. The new National Working Committee of the African National Congress, which was appointed last week by the National Executive Committee elected at Polokwane in December, last week also appointed a committee of its own members to investigate arms deal corruption. This will not wash. From information that has come to light so far, the prime suspect in arms deal corruption is the ANC itself. It seems most likely that the ANC itself, as the party of government under President Nelson Mandela in the late 1990s – but effectively under the control of then Deputy President Thabo Mbeki – arranged the arms deal as the means of funding its campaign in the general election of June 1999. The ANC won that election with an increased majority, Mbeki replacing Mandela as State President. The means by which it won that election appears to have been a criminal fraud on the nation.

Party benefit at the expense of the nation
The ANC as government bought goods from foreign suppliers that the armed forces did not want and now cannot afford to use properly. The means by which it did so was at taxpayers’ expense and to the loss of other funding priorities, for years past and for years to come. As charged in hearings of the parliamentary Select Committee on Public Accounts on 11 October 2000 by Laloo Chiba MP, a member of the High Command of the ANC military wing during the trial of Mandela and Mbeki’s father and others in 1963-64, and then their fellow-prisoner on Robben Island for 18 years: ‘The South African nation is being defrauded!’ [See "‘South Africa is being defrauded!' – ANC MP" (3 January 2008)] and ‘Things fall apart’ (10 January)]. Debts were incurred to the account of the South African people as a whole, with a rake-off going to the ANC as a party: that appears to be the bottom line. Huge corruption costs to the benefit of the ANC as a party and to individual politicians and state officials were structured into the inflated cost of these weapons purchases, while the arms suppliers were paid through massive loans to the South African state from foreign banks, to be repaid (principal and interest) over years to come.

The nation’s future mortgaged for a party election
The future of South Africa was mortgaged for an election funding scam. Foreign weapons firms, banks and governments were the beneficiaries. South Africa ’s people – above all, the poor, who have lost the services they might have had – were the losers. This was not a ‘victimless’ crime. At the same time, the whole political process was corrupted. Words and deeds became separated from each other, much more than tends normally to happen in politics. Boorish, thuggish, autocratic behaviour increasingly replaced ordinary parliamentary norms. Tony Yengeni, the ANC politician and parliamentary official who brazenly broke up the Scopa investigation was sent to prison six years later because of arms deal corruption, having earlier been the chairman of the parliamentary Joint Standing Committee for Defence that had helped fix the deal in the first place. Yengeni was then elected to the NEC in December and appointed to the NWC in January, along with another recipient of arms deal bribes who has been appointed to the party committee which is supposed to investigate the whole scam! This scandal degenerates to farce. [See ‘Yengeni, Schreiner and the ethics of the ANC’ (14 January 2008 )]. The farce corrupts the democratic process. All that the ANC claims to stand for as it approaches the centenary of its founding is rendered risible, worthy only of a sneer. It is very dangerous.

The ANC is not above the Constitution
The new ANC president Jacob Zuma has been charged in court with corruption, racketeering, money laundering and fraud in connection with the arms deal. Mbeki, the outgoing party president, and continuing President of the country, should be investigated as to his leadership of the ANC at the time of the arms deal and his chairing of the Cabinet committee which approved it. His grouping in the ANC was responsible for the increasingly boorish, thuggish and autocratic behaviour which led the great majority of ordinary ANC members throughout the country to throw them out of office from the party last month. The clean sweep of almost the entire Mbeki cabal at Polokwane was a necessary but very far from a sufficient step for disinfecting the corruption poison. Whatever might have been thought at Polokwane, the ANC cannot investigate itself on this matter. South Africa has a constitution, set in place in 1994, which the ANC helped to fashion. The ANC cannot now justify a claim to override the Constitution, in its own self-interest, as if the law of South Africa was of no account and did not apply to it.

Judicial process or an ANC putsch
There is now an important constituency in the ANC, the South African Communist Party and the Congress of South African Trade Unions that is arguing that they should override the Constitution. [See ‘J’Accuse! Cosatu considering a putsch?’ (3 January 2008)]. ANC policies which were decided by majority vote at Polokwane would require, if implemented, that South Africa’s judicial process be set aside, in the interest of negating Zuma’s prosecution. This is a recipe for mayhem, violence, potential civil war and the collapse of South Africa into yet another African basket case and failed state, the most terrible failure of all. That is clearly the warning by two of the country’s most eminent jurists who defended Nelson Mandela and his colleagues in the Rivonia Trial, retired Chief Justice Arthur Chaskalson and Advocate George Bizos. [See ‘Chaskalson and Bizos alarm at tone of Zuma debate’ (5 January 2008)].

Members of the NWC arms deal committee
The NWC and its arms deal committee now have central responsibility for preventing this outcome. With the exception of one of its eight members (retired General Siphiwe Nyanda, head of the South African National Defence Force at the time of the arms deal), none of the arms deal committee appears to have been contaminated by the deal. Kgalema Motlanthe, the new deputy president of the ANC, a former trade unionist and a Sotho-speaker, distanced himself from the actions of the Mbeki government on several occasions in the years before the conference at Polokwane. As ANC secretary general he was very civil and collegial when Chiba’s colleague in the Scopa hearings, Andrew Feinstein, resigned as an ANC MP in August 2001, following the bruising Feinstein had received from Mbeki’s then rottweiler (and now Zuma supporter and NWC member), the jailed fraudster, former ANC Chief Whip and previous chairman of the Defence Committee, Yengeni. Two other leading members of the arms deal committee, Cyril Ramaphosa and Mathews Phosa, were run out of politics in April 2001 by Mbeki’s Safety and Security Minister, the late Steve Tshwete, with trumped-up charges of ‘conspiracy’ and a police probe, in order to bolster Mbeki's grip on government . (The third accused ‘conspirator’, Tokyo Sexwale – Feinstein’s former boss and confidante when he was premier of Gauteng province – emerged as the principal kingmaker of the Zuma victory and is a member of the NWC, though not the arms deal committee). There are enough clear heads and clean hands on the arms deal committee for it to make vital decisions, which will have significant bearing on how the ANC carries itself into the country’s general elections in 2009, or sooner; and how well or ill it serves the country.

Legacy of Skweyiya and Motsuenyane Commissions
The arms deal committee must first become clear in what ways it does and does not have continuity with two previous commissions of inquiry appointed by the ANC to investigate its own past misdemeanours, the Skweyiya (1992) and Motsuenyane (1993) commissions. In the years immediately following the unbanning of the ANC and the return of the exiles, these two commissions took evidence from ANC members and former members about human rights abuses committed in exile, principally by the ANC Security Department, the secret police division of the ANC’s Department of Intelligence and Security. (Zuma was head of Military Intelligence, with a separate area of authority). Put together, the investigations of these two commissions were relatively thorough and complemented the findings of Amnesty International (‘South Africa: Torture, ill-treatment and executions in African National Congress camps’, London , December 1992. AI Index: AFR 53/27/92). Victims were able to give evidence and perpetrators were named. The ventilation of these abuses by the ANC itself went some way to meeting the demands of victims who had called for an international commission of inquiry, and provided one of the immediate preconditions for the convening of the Truth and Reconciliation Commission when the ANC became the government in 1994.

Rationale of the ANC commissions of inquiry
Several criticisms have been made before and after the work of the Skweyiya and Motsuenyane commissions, and of the TRC. A significant number of victims of human rights abuses by the ANC in exile refused to give evidence to all three commissions because they did not have confidence that they would receive justice and that their persecutors would be punished. It is true that no punishments were or could be inflicted by any of these commissions. In the case of the TRC, it had the statutory authority to issue amnesty from prosecution in court, if it concluded that a perpetrator had made full disclosure for a ‘politically motivated’ crime (an elastic concept). A very wide range of murderers and torturers from both the apartheid state and the ANC Security apparatus emerged unscathed from these commissions, to enjoy further careers of one kind or another, and/or pension entitlement. There is some bitterness and recrimination about this, partly justified but partly missing the point.

The necessity, limitations and value of the TRC
The main point is that the ANC did admit publicly through these commissions to its own previous guilt. This did not take place with Swapo of Namibia or Zanu-PF in Zimbabwe, a huge advantage for South Africa in terms of decency, openness and respect for the moral law. The TRC was a necessity because the alternative was mutual slaughter. The apartheid state was intact and undefeated at the time of the unbanning of the ANC in February 1990, while the ANC’s troops in Umkhonto weSizwe had been withdrawn from Angola to Zambia and Tanzania under the Crocker Accords of 1988 – far from any border with South Africa, and in a mood of great dissatisfaction in both countries. The fall of the Soviet Union and the end of the Cold War (including the Cold War in Africa) permitted a relatively peaceful resolution of the ending of apartheid in South Africa, in which a deal was struck between the two sides. The basis of the deal was that there would be no settling of accounts with the other side. The TRC gave expression to this basic deal between the ANC and the former ruling National Party. It permitted truth to come to light, victims to be heard, perpetrators to be named and shamed, but it excluded a punishing of the guilty (provided they conformed to the conditions for amnesty). No more than that could have been achieved, without precipitating future violence.

Electoral logic of ANC commissions of inquiry
The Skweyiya and the Motsuenyane Commissions, preceding the TRC, had a further logic. The bulk of the abuses they investigated had taken place in the ANC in exile, in Angola, Zambia, Tanzania and some other African countries. The ‘inziles’ – the internal leaders of the ANC, who had fought the battles of the United Democratic Front, the trade unions and the civic associations within South Africa, or had been in prison – knew nothing of the details of what their exile comrades had done in exile. Yet the security forces of the apartheid state, whether its security police or its Directorate of Military Intelligence, did have very extensive and detailed knowledge, since they had penetrated the ANC in exile right up to the top, the Security Department in particular. Once the ANC was legalised, the inziles demanded the setting up of the Skweyiya and Motsuenyane Commissions by the ANC itself, as a means of finding out for themselves what had really happened in exile. They argued in the NEC that without this knowledge the ANC could not realistically confront the NP, as the former party of government in the apartheid era, in a general election. ANC candidates guilty of human rights abuses in exile would be liable to exposure, compromising the party. There was a crucial difference between both these commissions and the NWC arms deal committee, however: though appointed by the ANC, no ANC politician sat on either of the former, an essential condition of their integrity.

Roles of Mandela and Mbeki contrasted
In each debate on this issue, Mandela sided with the inziles, who carried the day. Characteristically, Anthony Sampson gave no attention to this subject in his hagiographic Mandela: The Authorised Biography (HarperCollins, London, 1999), even though Mandela's role was hugely to his credit. In October 1998, when Mbeki and his exile comrades tried to get the final report of the TRC suppressed, since they regarded it as too critical, Mandela once again sided with the revelation of abuses. The report appeared. (On this conflict of approaches between Mandela and Mbeki, see Mark Gevisser, Thabo Mbeki: The Dream Deferred, Jonathan Ball, Johannesburg, 2007. p.710-712. For a step-by-step account, see also Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission, OUP, 2000).

Alternatives facing the arms deal committee
These are the precedents immediately available to the arms deal committee. It can with courage proceed without fear or favour to disclosure of the ANC’s own corruption abuses, as a prelude to the entire affair being placed before the courts. Or it can wreck South Africa ’s Constitution, the judicial system, civil peace, the economy and trust between the races by placing the interests of party above the state, and the interests of a small number of guilty men and women above the interests of the whole. The committee must choose. It can follow Mandela’s precedent, or Mbeki’s. Ramaphosa, one of the leading ‘inziles’, who is on the arms deal committee, played a major role within the NEC alongside Mandela in support for the Skweyiya and Motsuenyane commissions, and for the TRC (including publication of its report). So did one of the leading exiles, Pallo Jordan, a member of the NWC though not a member of the arms deal committee. Jordan lacked any power base in exile, but felt on his own flesh the sharp claws of the ANC Security Department (Imbokodo, the boulder that crushes) when he was held its prisoner for six weeks in Lusaka in 1982, for arbitrary ideological reasons.

Pallo Jordan’s ironic comparison
Judge Albie Sachs of the Constitutional Court, an ANC activist of many decades, has vividly described the ‘seminal’ meeting of the NEC in August 1993 – a ‘passionate meeting, sharp, uncomfortable’ – which accepted the proposal to set up the TRC. At this critical moment for South Africa and the ANC, there were forceful arguments against the proposal. Jordan’s words at that meeting had tremendous moral importance for the future of the country. He should use them again in the NWC over the coming weeks, substituting only the words ‘corruption’ and ‘arms deal’ in place of the issue facing the NEC at that time, ‘torture’. As Jordan sharply and ironically reminded his colleagues at that NEC meeting in 1993: ‘Comrades, I’ve learnt something very interesting today. There is such a thing as regime torture [read: corruption], and there is ANC torture [read: corruption], and regime torture is bad and ANC torture is good; thank you for enlightening me!’ (Sachs’s account is cited in Boraine, A Country Unmasked, pp.258-259).

Schizophrenic stance on criminal justice system
Today the omens are not good. The NWC made a major attack on the judiciary in a statement issued today, following its first meeting yesterday at Luthuli House, the ANC headquarters, in Johannesburg. Its stance is schizophrenic. On the one hand, the NWC stated that that it had ‘discussed transformation and the need to restore the integrity of law enforcement units and the entire criminal justice system’. Contrary to affirming and strengthening the criminal justice system, as Chaskalson and Bizos have urged, it expressed itself ‘shocked’ that Deputy Chief Justice Dikgang Moseneke on the occasion of his 60th birthday had shown ‘disdain’ for the delegates to the conference at Polokwane, a matter that the NEC said ‘highlights the difficulty that many within the judiciary appear to have in shedding their historical leanings and political orientation.’ This is the language of the goons of the ANC Security Department in Lusaka, when they imprisoned Pallo Jordan on the grounds that ‘Leli intellectual lase Merika liijwayela kabi’ - ‘This American intellectual is not showing respect’. (See ‘Jacob Zuma, the ANC and the administration of justice', 30 December 2007). It is the wide open highway to dictatorship and chaos.

Heading for the abyss
Even worse is the subsequent paragraph, in which the NWC states: ‘The sudden withdrawal of charges against Scorpions Gauteng head Gerrie Nel raises a number of questions. The manner in which this case has been handled suggests that South Africa has a long way to go to achieve equality before the law. It strengthens suspicions that those who occupied positions in agencies of the former apartheid government can act with impunity while the offensive against cadres of the democratic movement is intensified. This brings into sharp relief the transformation of state agencies.’ Equality before the law! This verbiage avoids any comment about the NWC fraudster, Yengeni, or the NWC recipient of foreign arms deal largesse, General Nyanda, both present at the meeting which issued these disgraceful, pro-corruption threats. No comment either about the National Police Commissioner and (resigned) president of Interpol, ANC comrade Jackie Selebi, submerged up to the crown of his head in charges of corruption. No mention either of the foul secret at the centre of this ship of fools: the corrupt funding of the ANC itself. With leaders like these, South Africa is heading for the abyss