Our Potemkin constitution
In fact he just built the painted facades and made sure they looked as if they were inhabited by happy, well-fed (and thus prosperous) peasants – thousands of peasants were stage-managed to play the part, singing, dancing and cheering as Catherine passed. The facades could then be dismantled and re-erected further on to delight the Empress all over again. This gave us the immortal phrase, “a Potemkin village”.
This phrase has been in the air since the recent publication of the minutes of the ANC’s Deployment Committee has created a storm, particularly in DA circles, over the “revelation” that this Committee has been deciding on appointments to every position, board or committee of importance in the public sector, including the judiciary.
It is one of the great weaknesses of South African public life that very few politicians, journalists or even academics are much versed in the history of other countries. Indeed, they are also little versed in South African history, including the history of the ANC. The result is an almost complete lack of any historical or comparative perspective and a corresponding naivete.
This has been very much in evidence in recent time with only a very slow dawning of the realisation of just what the country had inflicted on itself by putting the ANC in power. To an astonishing degree people of all races accepted the ANC in 1994 at its own inflated valuation. For anyone who knew the ANC’s history or the story of “liberation movements” elsewhere in the Third World, this was simply absurd.
For the SACP (and ANC) neither 1956 nor 1968 (the Soviet invasions of Hungary and, later, Czechoslovakia) created anything like the shake-out that it did in many Western communist parties. Similarly, there was no equivalent for the SACP of the Eurocommunist wave which so affected the great European CPs.
The net result of this was that the ANC was thoroughly Sovietized not only in its language and style (the stress on being ‘revolutionary”, the appellation “comrade”, the adoption of the Soviet slogan of “the national democratic revolution” etc), but in its stress on party discipline and “democratic centralism” (i.e. rule by the Central Committee and its Politburo – in the ANC case, by the NEC) and in its organization of power.
When the Bolsheviks took power in 1917 Lenin was extremely conscious that they had only minority support. Accordingly, he instructed his comrades that while everything must be done to give an appearance of democracy, all actual power should belong exclusively to the Bolsheviks. To achieve this Lenin relied partially on an iron-clad democratic centralism but also by appointing reliable Bolsheviks to all important positions.
Thereafter, as General Secretary of the Party, Stalin headed the Party’s Secretariat and thus had control of nominations to all positions. Throughout his long rule (1924-1953) this remained the basis of Stalin’s absolute power. Stalin packed all institutions with his loyal cadres and, as he was fond of saying, “the cadres decide everything”.
This naturally included all appointments to the Soviet judiciary as well as all other key legal officials such as the prosecutors, thus giving Stalin complete control of the courts and, indeed, of pretty much everything that happened in them.
Nobody doubted, for example, that Andrey Vyshinsky, the prosecutor in all the show trials, was operating on a script effectively devised by Stalin. There was no room for an independent judiciary in the USSR any more than there is in China or Russia today. In China, for example, of those charged with committing crimes 99.7% are found guilty.
Yet in the midst of the show trials and purges Stalin introduced the Soviet Constitution of 1936 – generally recognized as one of the most liberal constitutions in the world – and of which the Communists made great show to “prove” how completely democratic the USSR was. Naturally, all actual power was exercised in monolithic fashion by the Party, which paid not the slightest heed to the constitution.
It must be remembered that for believing Communists all round the world the Soviet model was taken as gospel. This was certainly true of the SACP and thus, to a very considerable extent, of the ANC as well. This needs to be kept firmly in mind when one considers the way in which the ANC and SACP negotiated the current South African constitution.
Even during the constitutional negotiations there was much wonder and congratulation expressed that the ANC and SACP had been willing to agree upon a classically liberal constitution. This was very misleading for, of course, these organizations were absolutely determined to exercise a complete monopoly of power. This was, indeed, made quite clear in the ANC’s Strategy and Tactics documents.
There is another point here which many seem not to have comprehended, which is the enormous weight of African tradition behind ANC practice.
Secondly, the chief allocated land and dispensed other favours. In that sense patronage was intrinsic to life on the continent. Over many thousands, indeed tens of thousands of years, these two characteristics became regarded as natural: power was a natural monopoly and patronage was the way in which all power was exercised. Thus when African nationalists took power they naturally preferred one party states or at least highly centralised systems of governance, and everywhere that power was exercised through elaborate systems of patronage.
This is just the way things have always been done and the ANC naturally did just the same as African nationalists elsewhere, though with the crucial amendment that now the dominant party, not a chief, would exercise that power monopoly and dispense patronage.
The ANC’s Deployment Committee is the natural outcome of these two traits and it is not certain that the ANC can work in any other way. The really surprising thing is that many should be so shocked and surprised by something which is so intrinsic not only to the ANC but to traditional African society more generally.
When the power-sharing government took office in 1994 I spoke to a friendly ANC MP. “There will be no power-sharing”, he said. “There ought to be because our lot knows damn all about governing. But it won’t happen. I can tell you, I’ve talked to all the relevant people and they will go round, under, over or any which way to get past the Nats but they will not share power with them. Whatever they’ve signed to say they’ll share power, even the constitution, simply doesn’t matter. They’ll never observe it. They want all power.”
And thus it was. De Klerk recognised how hopeless the situation was by pulling out of the government in 1996, long before the period set aside for power-sharing was over.
A year or so after that a lawyer friend told me: “You’ll never believe it”, he said, “but they have started to appoint judges who are completely hopeless, ANC trusties who are entirely ignorant of the law.” I said I found that very easy to believe. After all, it was happening in every other walk of life. Why should the law be spared? “But”, he spluttered, “this is the LAW!”
He really seemed to think that whatever happened elsewhere his own area would be an exception. Later I found other professionals equally shocked by gross incompetents appointed as professors or vice chancellors or hospital administrators. Every such appointment produced its own flights into emigration of far more competent people. This has now been the mundane South African reality for nearly thirty years. It wasn’t really hidden. Anyone who used their eyes and ears could see that every institution of any significance was being turned into an organ of the ANC party-state.
It may be objected that all governments everywhere appoint their own supporters to key positions. The difference is that in normal democratic states the appointees will usually have all the qualifications and experience necessary for the job, for their party wants its appointments to look defensible.
Secondly, it is genuinely accepted that independent institutions must be truly independent. Thirdly, although appointees may have a vague loyalty to their party, party discipline is weak, and it is accepted that all parties are broad churches. Finally, power is highly dispersed within parties and there is no central body enforcing an iron discipline. None of these provisos held in the USSR – or hold in South Africa today.
From the very beginning cadre deployment in South Africa also led to the hollowing-out of institutions. Every institution needs to have its own esprit de corps, its own hierarchy, its own formal and informal rules – and this requires that it has its own recruitment procedures which must proceed independently of outside organizations. These things make it cohere as a unit and make it functional.
But the ANC model dispenses with all that. The party’s rules, discipline, solidarity and hierarchy are far more important than any institution’s. People know that ultimately they owe their jobs to that and that no other set of rules matters half as much. Jacob Zuma has been quite open about this, repeatedly saying that the ANC is more important than any constitution.
This is what makes some of the DA reaction to the workings of the Deployment Committee off target. Helen Zille declares that “All employment or all selection processes under the ANC are a total sham” – because, of course, the real choices are made by the Deployment Committee, not by the selection committees supposedly doing the choosing. Ms Zille further locates the creation of the Deployment Committee to Nelson Mandela launching the policy at the ANC’s national conference in December 1997.
To which one can only say “Yes, of course” – though one can be sure that cadres were being slotted into position from Day One after 27 April 1994.The point is that in exile the ANC was always run on the basis of cadre deployment. There was no such thing as an independent institution within the ANC and its family of front organizations. (And remember, discipline was so tight that cadres needed party permission even to marry.)
For the ANC cadre deployment was essential in order to create the discipline and the unity of action which was essential to the Struggle. And for the ANC the Struggle just goes on. And on. It doubtless never occurred to the ANC that its organizational habits from the 1970s and 1980s ought to be modified after 1994.
Thus it is wrong to date cadre deployment to 1997. Even when Ramaphosa stood down as ANC Secretary-General – long before December 1997 – Thabo Mbeki spoke of his being “deployed” to the business sector.
But what on earth did anyone expect? No one who knew the Soviet model or how the ANC had worked in exile could be in the least surprised. In effect public opinion seems only now to have woken up to the fact that in the situation in which all institutions are stuffed with party cadres the 1996 constitution is a Potemkin constitution, just as the Soviet constitution of 1936 was.
Particular outrage has been expressed that the Deployment Committee was choosing judges. In a way this is odd: if the ANC packs supposedly independent bodies like the IEC or the Chapter Nine institutions with its cadres, why should one expect it to leave the judiciary alone? It has always packed the Judicial Services Committee, after all.
A possible answer might be that ever since Montesquieu theorists of democracy have stressed the necessity of the separation of powers between executive, legislature and judiciary. (Indeed, some trace the idea back to John Locke or even to Aristotle.) In South Africa the executive has utterly dominated the legislature since 1994 because there is a large disciplined ANC majority and the Speaker is always an ANC apparatchik.
But great consolation has been drawn from the notion that the judiciary, at least, is independent. In particular we have been repeatedly told – often by members of the Constitutional Court – that the Constitutional Court, at the apex of the system, is independent and full of distinguished jurists. Many people who really ought to know better have accepted this.
In fact, of course, the ANC does not for one moment believe in the separation of powers, though it is happy to claim that the judiciary, or the IEC or the Chapter Nine bodies are independent if that helps its case. Though in fact, of course, it works hard and continuously to ensure that these bodies do what the ANC wants. In Part Two of this article I will examine how this applies to the Constitutional Court.