Black Tuesdayby Paul Hjul / Images by Adam Kent Wiest / 23.11.2011
Yesterday, 22nd November 2011, will forever be known as Black Tuesday: The tragic day when South Africa’s fledgling democracy was sold off by 229 overpaid politicians. Occasions such as this lend themselves to Twitter feeds and Facebook posts of grand poetics and the use of aphorisms. They also lend themselves to the succumbing of emotions of despair and the undermining of reason.
But even if we accept that a certain amount of hype has been present in opposition to the passing of the Bill in the National Assembly, we cannot underestimate just how great a threat to the Rule of Law this bill presents. Furthermore the “hysterics” and lack of rational engagement of some opponents to the bill have been more than matched by the hysterics, blatant stupidity and a buitelande gevaar that rivals former despot Paul Kruger (the similarities between Kruger and Zuma need to be extrapolated into a far longer piece so watch this space). The dishonourable Luwellyn Landers (a major proponent for the bill) has attempted to present opposition to the bill as support for the old order Internal Security Act – which remains on the statute books despite the ANC having had control of the legislative process for almost 17 years. This is an argument that is as preposterous as Mr Landers is dishonest. The truth is that, whilst there is an undeniable need for replacement legislation on the matter of the protection of information and the prevention of harm producing information peddling (a practice which formed the basis of securing a reprieve from prosecuting Zuma and the allegations that Mr Ncguka was an apartheid spy), the fact that the law as it is, is bad does not justify making it worse. However let us assume that the bill is not intended or even able (and I will argue why this is the case later) to do all that the “hysteria” suggests. It is a sad day for a democracy when the government acts in defiance of the expressed will of its citizens. In truth even if the bill does not silence the free press (and in reality it does because of the deliberate chill effect built into the processes surrounding the bill) our democracy has been sold out by 229 politicians, most of whom are unlikely to ever be reimbursed for their treason.
The backdrop against which this bill has been passed (for example the grand Malema and Chief Justice Mogoeng Mogoeng sagas) makes it is clear that, in order to understand why the bill has been so stringently fought for by a faction within the ANC, we need to consider the fact that Jacob Zuma is a president dependant on backers. It has been Zuma’s uncanny ability to garner temporary support for himself while maintaining control of the ANC’s old intelligence cluster that has been at the centre of his success. Robbed of a security cluster Zuma is a sitting duck, therefore keeping control of the intelligence and security instruments is vital, not to Zuma’s success, but his very political existance. Of course the fact that the SANDF has faced industrial action from disgruntled soldiers under Zuma’s watch has probably made retaining this control significantly more elusive.
The great tragedy is that the very members of Parliament who passed the bill are likely to become targets of the “fashion and glamour journalists” who are clamouring against the bill (a description based on the ramblings of the ANC). Dame Helen Suzman was able to act as a constant thorn in the side of the Nats largely because she was a member of Parliament, as this came with certain privileges not given to journalists or ordinary members of the public. A cursory glance of the handling of tiresome members of Parliament by the Speaker reveals that this privileged position of an MP has long since been eroded and the prospects of a white journalist being prosecuted under the act are significantly less than the prospects of an errant and former ANC politician who has been caught in a web of factionalism being destroyed by the threat of prosecution. The police have already demonstrated with the handling of Sunday Times journalist Mzilikazi Wa Afrika that black journalists are already deemed fair game to the securocrat institutions if such a person dares to become a tool for “the imperialist media agenda” (the subject of how corrupt South African politicians and political institutions reinforce racism is also one which demands individual treatment).
In addition to tragedy the bill has many elements of irony. For example the same ANC pundits who sought to dismantle the Scorpions, on the pretext that their location in the NPA made the NDPP too powerful are now passing an act which makes the NDPP the determiner of who is to be prosecuted under a draconian statute – in addition of course to deciding who is to be prosecuted for corruption. This structure in the Bill manages to undermine both the media and the judiciary in one swoop. It should also be remembered that Vusi Pikoli was removed from his position as head of the NDPP not on the basis of appreciating matters of national security as the Zuma securocrats understand it to be (coincidently prior to serving as NDPP Pikoli chaired inquiries into the functioning of the intelligence services). Current NDPP boss, Menzi Simelane is certainly not holding the post as a consequence of the respect of the legal fraternity. It is this feature, built into the structure of the bill, which renders Steven Friedman’s assertion that the bill is not about “closing down media coverage of government corruption and incompetence” to be patently wrong. The bill, in my humble pundit’s opinion, all about protecting state sanctioned corruption and state tolerated incompetence. The bill makes the executive (or more pertinently the securocrats) the determiner of what information may be exposed and who may be prosecuted for disclosing what the securocrats do not wish disclosed. The bill does not protect South Africa from foreign spies, it ensures that government gets to choose to which foreign nation we are a suzerain. It is a protection of corruption bill because it protects the most nefarious of corruption and turns our State into an absolute racket. That is why we should feel great worry and gloom, but there is still hope – and moreover hope outside of a Constitutional Court challenge.
The powers of the NDPP amount to a type of a backdoor to a public interest defence (which is why I believe that ultimately the bill is going to be unable to achieve what the hype suggests it could). Of course the exact wording of the section largely affects just how wide open the backdoor is and until the president assents, it is probably ill-advised to give the proponents of the bill opportunity to secure their objectives. Suffice it to say that, in the bill’s present form, any civil disobedience campaign against the bill will quickly render the office of the NDPP entirely defunct. For this reason there is hope, so long as South Africa has people prepared to struggle for our collective freedom (and perhaps it is better to say so long as we the people of South Africa regard it as our civic duty to struggle for freedom when circumstances call upon us) the evil that gives rise to this bill will not prevail.
The real outcome of Black Tuesday has not yet been determined and in 13 months time the ANC faces another deeply fracturing conference where it will need to determine its leadership and trajectory forward. If the securocrats are unable to finalize their grip on power by this time it is likely that the impetus towards castrating democracy will be largely lost. If the grassroots opposition to politically tolerated corruption grows we will have a stronger and more mature democracy.
Let it never be forgotten that a small group of ladies donned in black sashes, who were committed to the preservation of a constitutional state, inspired both fear and quiet adoration of the hardest architects of apartheid – and, as the run up to the bill has shown, we are not few but many. It is now that we the people of South Africa must demonstrate that we have learnt from history, that we are prepared to stand up for our democracy. We can do this by supporting the various protests which have been organized, we can seek greater exposure with the international community, we must commit to identifying the hypocrisy of our larger political parties in eroding our constitutional democracy. But above all we can stand up for our Constitution, by living it. Living our Constitution and embracing both its freedoms and its values is our only defence as a nation to this bill. A bill which, far more than any of the bogeymen invented by its proponents, threatens our National Security.
*All images © Adam Kent Wiest