Minister Lindiwe Sisulu’s attack on the South African Constitution and the judiciary is not an isolated incident, although it might be the most vitriolic attack yet from such a prominent member of the governing party, government and executive, and, let us not forget, member of ANC royalty.
There is a wider crisis of political and institutional legitimacy, one that is actively being incited by powerful forces in search of both a convenient scapegoat for their failures and legal impunity for their looting from public funds.
The immediate cause of this growing crisis of legitimacy is that the government, and by extension the ruling party, has failed to deliver on the promises that have been made in every election cycle since 1994. This has been compounded by the rampant corruption in the face of a complete collapse in service delivery in most places in the country, the inability to hold politically connected elites accountable in the face of their assumption of a right to impunity, and their utter arrogance in their continued conduct as untouchables who are above the law.
This crisis of legitimacy requires political elites to find ways to sustain their authority. An easy solution is to find a scapegoat to externalise the blame and, much like foreigners, the Constitution and the judiciary are an easy target.
What is shameful about Sisulu’s critique is that she does not see any irony in criticising a Constitution that she is sworn to protect as a member of the governing ANC, which bequeathed us this Constitution. Nor does she see the contradiction in the fact that she has been a member of Parliament for the governing party since 1994, and since 2001 a member of the executive whose decisions are supposed to be based on the same Constitution.
As a minister of housing, intelligence, defence, human settlements, public service and administration, water and sanitation, and currently tourism, what has Sisulu done to uplift the lot of South Africans? How has she used her power and her position at the helm of some ministries that are critical to the eradication of poverty and squalor in this country? She has no record of effectively acting against structural injustices.
For 27 years she has lived in the lap of luxury provided by the South African people and sat at Cabinet meetings, ministerial meetings, departmental meetings and NEC meetings that have discussed and approved policies that continue the legacy of extraction and neoliberal policies of accumulation that keep South Africans in poverty and have increased unemployment to the highest rate yet of 46.6%. Nearly 30% of households have to rely on social grants as a source of income.
No doubt it is easier to find a scapegoat for the wholesale and abject failure to uplift the majority of South Africans from the crushing poverty that millions live under than to accept that the ANC has failed, let alone that one is personally complicit in this failure.
Sisulu is not alone in this. It has become fashionable among those seeking higher office within the ANC, and ultimately in the state, to criticise the institutions of state that they have been a part of, and benefited from. The aim is to shift the blame for the failures of the government away from themselves, and to try to set themselves apart as being different and better for the people.
It seems unlikely that Sisulu will do the right thing and resign. South African office bearers are not good at falling on their swords. This cuts across the political and corporate sectors. When was the last time you heard of a politician who resigned because of some scandal or other? I can only think of one – Nhlanhla Nene.
When was the last time you heard of a politician being fired for misdeeds, corruption, ineptitude, malfeasance? Never. Our Cabinet is littered with people who should have been replaced long ago by individuals who actually care about the people and are not just there to eat. But more often than not factional party politics trumps any other logic when appointments are made.
The corporate world is not much better. There has been impunity for egregious violations of ethical conduct. When CEOs and board chairs have been fired they often turn to the courts and fight tooth and nail to hang on to their positions. This erodes trust in institutions as people see that if you are politically connected or monied you can get away with all kinds of skulduggery and become a hero in the eyes of some.
The one institution that ends up being an arbiter of these issues is inevitably the judiciary. The courts have been kept busy in recent years by political cases and in particular by the erstwhile president who has perfected the art of lawfare. Our Constitutional Court has often been lauded for the decisions it has taken, often going against the government, such as the one compelling President Thabo Mbeki’s government to provide antiretrovirals to HIV-positive people at the height of the AIDS denialism saga, or compelling the government to get rid of pit toilets.
However, the constant lawfare directed at the courts has led to a lot of judgments becoming politicised, particularly when people lose. The losers often turn to populist strategies and do not allow truth to stand in their path when talking to their followers. And their followers are not known to question their leaders, much like Trump supporters who almost two years later still believe that the 2020 American presidential elections were fraudulent.
This deliberate politicisation of the Constitution and the judiciary by a corrupt political class has gnawed away at the legitimacy and trust in the judiciary.
In 2021, Afrobarometer found that 53% of respondents showed little or no trust in the judiciary, with those who have greater experiences of lived poverty and less education being less trusting of the courts than their more secure and educated counterparts. There was a widespread perception (expressed by 54% of survey respondents) that the courts “always” or “often” treat people unequally based on race. Sisulu’s attempt to inflame these kinds of sentiments will run into limits though. South Africans are not stupid.
But until and unless we hold our politicians accountable and they know that they will not get away with treating South Africans like a nuisance, and pawns to be used in factional battles, but understand that they are there to serve the people and not to build fiefdoms, attacks on the Constitution, judiciary and other institutions will become the norm.
The time has come for us to take a collective stand to defend our hard-won Constitution and to defend our country from going down the gutter. Enough is enough. DM