Section 35 of the Bill of Rights is the longest and most detailed section of the second chapter of our supreme law, the Constitution. The section deals with the rights of arrested, detained and accused people. It does not relate to the pedigree, or lack of pedigree, of candidates for political office.
In the section 35 it is expressly provided that accused people are entitled “to be presumed innocent, to remain silent, and not to testify during the proceedings” against them.
The criminal proclivities of candidates for parliamentary political office are dealt with in Section 47 of the Constitution. It bars those convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine from holding office until five years after completion of sentence. No one may be regarded as having been sentenced until appeal proceedings are determined or the time for noting an appeal has expired.
The list of candidates which the ANC-led alliance will field in the upcoming elections scheduled for 8 May 2019 includes the names of a number of candidates who may broadly be divided into two categories: Those against whom findings have been made in courts of law or disciplinary tribunals and those who are merely accused of criminal activities by witnesses giving evidence on oath or in reports of panels set up to investigate the state of affairs that involves them.
So, for example, the Minister of Police, Bheki Cele, has a finding of dishonesty and incompetence against him from the Moloi Board of Inquiry which probed his fitness for office as National Commissioner of Police. The Moloi Board, in fact, recommended that he be investigated for corrupt activities concerning leases at inflated rentals, but this recommendation has not been acted on by those in authority. The findings of the courts against Malusi Gigaba (lying to the court) and Bathabile Dlamini (reckless and negligent maladministration of the South African Social Security Agency) are in the same category and raise serious questions about the fitness for representative office of those on the receiving end of the findings. Also questionable is the state’s failure to take criminal steps against Gigaba and Dlamini.
There are many more against whom mere allegations, albeit on oath, have been made in criminal proceedings (the Minister of Justice for his role in axing the NDPP Mxolisi Nxasana illegally, unconstitutionally and corruptly) or in the evidence before commissions and boards of inquiry such as those fingered by Angelo Agrizzi in his testimony to the Zondo Commission or by the Mufamadi panel that investigated the State Security Agency.
A criminal conviction means it has been proved, beyond a reasonable doubt, that the accused committed the offences with which they are charged. If they are acquitted, that does not mean that they did not do anything wrong or that they are suitable for public office.
The attitude of Luthuli House is that it does not, in compiling its lists of candidates, have regard to mere allegations against candidates. It insists on the mis-application of the presumption of innocence rule (which exists for accused people, not candidates) and by implication is content to field candidates who may face criminal charges, if elected.
It will keep those charged in place until the criteria of Section 47 outlined above are satisfied. This means that serious criminals who lodge appeals and adopt Stalingrad strategies in the prosecution of their appeals or launch speculative review proceedings will linger on the parliamentary benches long after conviction in terms of the letter of the law. The track record of former President Jacob Zuma is a handy precedent for those in this type of predicament.
Whether this approach to the quality of candidates for public office is healthy or desirable in a young constitutional democracy under the rule of law is highly questionable. Our parliamentarians ought to be people of probity and integrity; not awaiting-trial accused persons in jeopardy of losing their right to sit in Parliament.
In the post-State Capture era, if we have reached it, this is a particularly salutary point: the danger of slippage back into a state of capture ought to be guarded against by all responsible and accountable political parties. Having a “free-for-all” approach to compiling candidate lists is hardly indicated as we struggle to restore confidence and trust in our leaders in order to regain our rightful place in the family of nations and to attract the investment needed for job creation and the attainment of the better life the Constitution promises all in South Africa.
On a practical level, the approach of the ANC is both lame-brained and cynical, given the dysfunction in the criminal justice administration. Those accused of corrupt activities know well that they currently enjoy impunity for all practical purposes.
No “big fish” has ever seen the inside of a prison cell as a consequence of a conviction on corruption charges secured due to an investigation by the Hawks.
The capacity of the prosecution service to mount prosecutions successfully in technical and complex corruption cases is open to considerable doubt, as was conceded by new National Director of Public Prosecutions Shamila Batohi, when she publicly begged lawyers to “Thuma Mina” by helping the under-resourced and under-staffed NPA to do its work in a formal speech she delivered last Friday. She stressed that it would take years to get through the caseload that the ravages of grand corruption had accumulated.
Parliamentarians are elected for only five years. Including pre-trial delays, earnest representations of the kind Jacob Zuma has made to stop his prosecution, reviews and post-conviction appeals, there is ample time to complete a term of office and to undermine the efforts of those who wish to clean up after the corrupt and to restore South Africa to the path of peace, progress and prosperity.
None of these worthy goals are attainable if Parliament is polluted by those who use their high office for illegal self-enrichment and the benefits of impunity that “big fish” have enjoyed up to now.
For Ace Magashule to insist on a conviction before the ANC will attach any credence to serious allegations of manifest malfeasance is to bury the head of the ANC in the sand. His own precarious position may inform his stance, but it is not one that does the country any good at all.
By pretending to rely on the rule of law, when lip service is all that is being given, Magashule makes a mockery of any commitment to clean governance that the ANC may aspire to in the future. Its past in governance is a litany of instances of looting, illegal cadre deployment and the pursuit of policies and practices that are unconstitutional.
Not least, the dysfunction in the criminal justice administration, so convenient for questioned candidates, is the creation of the ANC. By voting for Hawks when eagles are required, it nobbled the capacity of the state to deal effectively with rogues in politics. The ANC-engineered closure of the Scorpions was the first step on the road to the impunity that Jacob Zuma managed to secure himself for more than nine years. Only true believers still think he is squeaky clean.
The proper approach to candidates with dark pasts and black marks against their names is to make an assessment of whether including them on a party list will advance that which the Constitution requires of politicians. The elections are held in our multi-party democracy “to ensure accountability, responsiveness and openness” as we strive to respect human dignity, promote the achievement of equality and advance human rights and freedoms. Our brave new state, now in its 25th year, is required to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights.
Populating parliament with a gang of questionable characters is not the right way to go about satisfying these exceptionally onerous and rigorous requirements.
Where credible and reliable evidence of malfeasance on the part of wannabe candidates exists, it is incumbent upon the party whose list they wish to join to investigate their probity and integrity. This should be done not with a view to prejudging their guilt in criminal proceedings, but for the purpose of determining whether candidates of this kind are the type of people who should grace the parliamentary benches.
The ANC has an integrity committee to deal with this type of situation. It would serve the interests of the country to remove all those in the first category described above from party lists without further ado. Those facing mere allegations can only be given the benefit of a place on the list if the allegations lack cogency, reliability and credibility. They are seeking the privilege of a place in Parliament: The onus should be on them to show that they have the necessary probity and integrity.
The ANC assumes the fitness for office of its questioned candidates at its peril. Voters are not fools, as Patricia de Lille is fond of saying. They will decide whether they wish to support a party whose list is polluted with candidates who more properly belong in the dock, not Parliament.
It also does not assist the ANC to argue that no charges have been preferred and no convictions secured. The reason for this inertia has nothing to do with the innocence of those whose presence on its list is credibly questioned and everything to do with the limping and captured state to which the ANC has managed to reduce the criminal justice administration in SA.
It is simply not good enough comfortably to assume that the bad eggs will be discarded as the wheels of justice break their shells.
If you are as politically connected as the candidates for Parliament surely are, the wheels of justice have long treated you as royal game, immune from prosecution and able to behave with complete and utter impunity that sees the likes of Bheki Cele, Malusi Gigaba and Bathabile Dlamini confounding the law by remaining in political favour despite what our judges have pronounced about them in considered and serious fashion. DM
Paul Hoffman SC is a director of Accountability Now.