Thuli Madonsela said No

Thulisile Madonsela

It's been a year of depressing news on all sorts of fronts – in fact make that twelve months since the year is still pretty young. Nevertheless, this month has witnessed what I believe to be a major turnaround in South Africa’s fortunes. I’m not talking about the economy or a change in direction of the government or any other sudden positive development. I’m talking about one woman who stood up and said no, and kept saying no despite being denigrated and threatened. And who kept on doing it until she won.

Thuli Madonsela started life as the daughter of immigrants from Swaziland to apartheid South Africa. They were ‘informal traders’ – people who sell things at street markets and make a small profit by buying in bulk from suppliers and splitting up the goods into packages that people can afford. She went to school in Soweto in the years of violence and friction with the South African police, and then studied at the University of Swaziland. She obtained a law degree from the University of the Witwatersrand in Johannesburg in 1990. After obtaining her degree, she worked with the trade union movement and the United Democratic Front – essentially the internal wing of the ANC in the last years of apartheid - and she is a long term member of the ANC. In 1996, she was part of the team that drafted the South African Constitution.

In 2014 she made Time magazine's list of the world's 100 most influential people in the Leadership category, and last year she was awarded two honorary doctorates by two of the country’s leading universities.  She carries a heavy workload and is a single mother of two; her husband died very young.

Before the first democratic elections, she was offered nomination for an ANC seat as a member of parliament.  She declined because she felt that she could contribute more actively. She has certainly done so.

In October 2009, President Jacob Zuma appointed her as Public Protector, a position established by the Constitution to strengthen constitutional democracy and good governance. It’s independent from the state and has the power to investigate and make recommendations on improper dealings within government, which hamper service-delivery, abuse taxpayers’ money and perpetuate poverty and inequality. No doubt Zuma expected her to be grateful, and restrict her activities to the day to day matters that came to her office.  Big mistake.

Nkandla upgraded

As he signed off on her appointment, Zuma’s mind was elsewhere. He was in the process of a major upgrade to his country home known as Nkandla. I mean a major upgrade – around $25 million at the time. And he didn’t have – or certainly didn’t mean to spend – the money. That was no problem. He was going to make the state pay for it i.e. the taxpayers.

Pretty soon Madonsela was involved in some pretty high profile matters.  She pointed out the corruption of the ANC Youth League leader – Julius Malema – and the fallout from that eventually drove him from the ANC to form his own radical party.  People in high places started to feel uncomfortable with their supposedly tame ANC-appointed Public Protector.

Inevitably, journalists discovered what was going on at Nkandla. Zuma shrugged it off, but questions started to be asked in parliament. Eventually the president explained that what had taken place was a “security upgrade.”  Because of his role as president, he needed additional security and areas for safe assembly and public gatherings. These included an arena as an “evacuation area” and a “fire pool” to store water in case of fire in the thatch-roofed complex.  Hmm.

'Fire' Pool

The 'safety arena'. Looks a lot like a retaining wall. Coincidence, surely!

The case was referred to Madonsela who took her time to do a fair and thorough investigation. Her findings in 2014 were that Zuma and his family had enriched themselves at the taxpayers’ expense and that he should pay back much of the money.  She was immediately vilified as having exceeded her authority, produced inaccurate conclusions, and she was even accused of being an agent for the CIA! (The last was withdrawn after she threatened to sue.) She was also told she had acted outside the constitution. Strange – after all she helped write it.

The president ignored her recommendations and provided his own report which cleared him of all wrong-doing. He has survived many scandals; this one too would pass.

But it didn’t. In a government and civil service fraught with corruption and inefficiency, few things stick in the public’s attention, but this was one of them. The opposition parties wouldn’t let it go away. And eventually, when they were blocked by the ANC majority in parliament, they – and Madonsela - took the matter to the Constitutional Court (South Africa’s equivalent to the Supreme Court).

The Constitutional Court - without Fire Pool

The Court heard the case last week. Judgment is reserved, but it’s all over. Zuma’s council admitted that he was wrong, that the Public Protector did have the authority she had claimed under the constitution, that the Zuma report had no status. 

Will this mark the end of corruption in South Africa? Certainly not. It does mark the end of a culture that the highest in the land are above the law. And it has shaken the government, still reeling from Zuma’s arbitrary firing of the finance minister at the start of the year.  It’s not the end of corruption, but it just may be the end of President Jacob Zuma.

Michael - Thursday

Constitutional

Justice Edwin Cameron.

Many commentators nowadays in America seem to use the US Constitution – in the words of the old joke about statistics – the way a drunk uses a lamppost: more for support than illumination.  Yet even the UK – trying to maintain their 300 year union with Scotland – mutters that perhaps a constitution would be a good starting point for a new dispensation. So it might be interesting to consider what the constitution in South Africa has, or has not, achieved for our twenty year old democracy.  I’m not qualified to do that, but Justice Edwin Cameron has written an insightful book on exactly that subject titled: JUSTICE: A PERSONAL ACCOUNT.

  It’s written clearly without any legal jargon and, despite his role as a judge of the court, he tries to make an unbiased assessment.  More than that, he sets the book against his personal life as a gay man living with HIV.  His struggle with “coming out” – not out of the closet but making his HIV status public - is moving.  Today it is hard to believe how difficult that was, yet Cameron points out that even today he is one of only a handful of public figures in Africa who have done so.  Yet the incidence of HIV among Africans probably runs as high as 10%.

With what it has enshrined, it’s hard to believe that in some quarters the South African constitution is unpopular.  On the left, the complaint is that the constitution was a white sponsored conspiracy to maintain white privilege under a black government, while white reactionaries mutter that the constitution is a legal facade to deprive them of rights and property.  Usually if there’s criticism from both extremes, you're doing something right.

The Constitutional Court in Johannesburg

Before the change of government, South Africa used “common” law (and Roman Dutch law at that).  There was no constitution.  Basically the government of the day could get away with almost anything (maybe hold the “almost”) just by passing a new law or changing an existing one.  These could be – and were – challenged and struck down in the courts, but it was mainly an issue of the government phrasing the law correctly and following due process.  There was no ultimate framework to which one could appeal.  Cameron, an anti-apartheid activist who used the legal processes open to him to try to support the victims of the apartheid government, and whose commitment is beyond question, clearly remains ambivalent about whether that was the right thing to do or whether he'd just allowed himself to be co-opted to lend the regime respectability through its lip service to the law.

Nelson Mandela suffered one of the first major reverses from the new Constitutional Court when it threw out one of his initiatives.  Looking back on this, he said: “It was, to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and my office and judged against.”  But that was Nelson Mandela. 

President "No"

His successor, Thabo Mbeki, was a different man.  For reasons which still remain a matter of speculation, Mbeki, highly educated and intellectual, was (and maybe still is) an AIDS denialist.  That is, he denied the connection between HIV and AIDS, seeing the latter as the result of bad environment and nutrition among poor people.  Cameron tears this to shreds, and it’s hardly worth commenting on.  But the impact was huge.  Not only was the president of the country wiping aside the impact of, for example, unprotected sex, but public hospitals denied ARVs to HIV positive people.  Pregnant mothers could only receive Nevirapine, the drug that could prevent HIV transmission to their babies, at a few designated “pilot site” hospitals, while Mbeki’s minister of health trumpeted the efficacy of African potatoes and beetroot.

Zackie Achmat Founder of the TAC

It was in this atmosphere that the Treatment Action Campaign took to the courts.  The arguments were carefully phrased.  The cost of the drug was not the issue.  The German company that developed and manufactured Nevirapine had offered to supply it – in any quantity required – to the South African public health authorities FOR FREE for five years.  Incredibly their offer was rejected out of hand.  Against this background the Treatment Action Campaign took their case for relief to the High Court in 2002.  When they won there, the government appealed to the Constitutional Court.  The TAC won there too.  Two years later, the government abandoned its approach and wholeheartedly faced the HIV epidemic.  Mbeki’s disastrous blind spot had only one saving grace: his government made it clear that they would abide by the decision of the Court.  By doing so, he ensured that the rule of law and the lofty founding principles of the New South Africa would not be tarnished. It was too late to do the same for his reputation and legacy. He was dumped by his party after a single term as president.

Michael – Thursday.