JAUNDICED EYE

Tourism Minister Lindiwe Sisulu has for the past week or so been trashing with great enthusiasm South Africa’s Constitution and judiciary, in a barrage of articles, social media posts and public declarations. And now she’s escalated the issue to thumb her nose at her nominal boss, President Cyril Ramaphosa, calling him a liar.

This supposedly “beautiful constitution”, Sisulu had written in an article, is in reality no more than a “palliative” that has failed to rescue the “victims of colonialism” from a “sea of poverty”. She also dismissed the fuddy-duddy importance some attach to the rule of law. After all, both apartheid and Nazism were underpinned by the same system of laws.

Sisulu reserved particular scorn for the now racially transformed judiciary’s constitutional role. Black judges, she said, were “mentally colonised” and “confused by foreign belief systems”. Akin to America’s “house Negroes”, they “lick the spittle” of whites. When made “leaders or interpreters of the law … [they] are worse than [their] oppressors”. 

Such behaviour is unheard of by a serving cabinet minister. Especially since Sisulu — an MP since 1994 and an uninterrupted 21 years of ministerial duties under four African National Congress presidents — swore an oath to abide by and uphold the Constitution. So, it’s most unusual that Sisulu continues to serve in President Cyril Ramaphosa’s present cabinet.

Anywhere else in the world, she’d immediately be out on her ear as a disgrace to the party and the nation. And if she had so presumptuously challenged the ANC’s basic tenets of faith while serving, as she did, as an uMkhonto we Sizwe soldier, she would have been cast into one of its “re-education” hellholes or liquidated. ___STEADY_PAYWALL___

What made it particularly bizarre is that Sisulu is the newest standard-bearer for the temporarily sidelined Radical Economic Transformation faction. This is the movement that is championing the interests of disgraced former president Jacob Zuma and his clique of corrupt MPs, ministers, and senior government officials. This is the movement that is seeking to unseat Ramaphosa and his reformists through a ferocious campaign of propaganda and violent insurrection.

At the very least, given the prickliness that exists in South Africa about racial stereotyping, one would think that Sisulu would be hauled before the Human Rights Commission. But, as we know, blacks can’t be racist, especially if one has a political pedigree that includes parents who were giants in the liberation movement.

Through all this, timid Cyril’s response was characteristically, well, timid. But Sisulu’s intemperate remarks did cause consternation elsewhere.

An array of civil society groups – among them the Council for the Advancement of the South African Constitution, Freedom Under Law, the Helen Suzman Foundation, and Judges Matter – issued a statement condemning Sisulu’s remarks as “a shameful exploitation of the genuine plight of so many”. Sisulu’s was “an exercise of blame shifting”, given that it is Parliament and the executive — controlled by the ANC cabinet in which she serves — that are responsible for legislating and implementing government policy.

Acting Chief Justice Raymond Zondo, while defending the right of anyone to level substantiated criticism against judges, said Sisulu’s remarks were “an extraordinary attack” and “‘probably the worst insult that has been levelled against the judiciary’ in democratic South Africa”. Sisulu’s conduct was “completely unacceptable” and Zondo added that “it would be a pity if it was allowed to stand just like that”.

Two of Sisulu’s close colleagues did break the ANC silence.

Minister in the Presidency, Mondli Gugubele, said Sisulu's “reckless utterances … grossly misrepresent the Constitution”. They have “the potential to undermine the credibility and the weight of the rule of law”.

Justice Minister Ronald Lamola said that “referring to judicial officers by using crude racial tropes cannot pass off as a debate” and that “attacking the very institution that is to uphold the Constitution goes against the grain of everything that we wanted to change from before 1994”, especially since “our Constitution is largely based on the [ANC’s] Freedom Charter”.

However, Lamola also opened some convenient wriggle room for the ANC. He noted in his rebuttal — which detailed the transformative tenor of post-1994 Constitutional Court judgments — that her articles were part of “heightened debates on the efficacy of the Constitution, propelled by Minister Lindiwe Sisulu in her personal capacity”. In other words, no need to discipline or fire her.

Perhaps the strongest response came from the General Council of the Bar, which urged Ramaphosa to “act decisively to defend the judiciary”. It also called on Sisulu to withdraw her remarks and issue a public apology.

Silent Cyril, however, remained shtum. All he initially managed to do is to note in his weekly newsletter that the Constitution and democratic state should be “protected at all costs”. But, clearly, not by him.

Part of the president’s problem is that Sisulu’s comments will have some resonance among the growing mass of poverty-stricken South Africans. For Sisulu is spot-on that the Constitution has not lifted the masses from poverty and given them work.

But that is not what constitutions do. As the civil society groups have rightly reminded Sisulu, that’s what governments do.

Sisulu is not alone in the ANC as seeing the Constitution as simply a convenient tool that the “people’s party” can use, rejig or discard, as best it suits the party’s shifting objectives. Democrats, in contrast, see a national constitution as a mechanism not for implementing immediate passions, but rather for containing them safely.

This was the difference of approach between the self-styled revolutionaries and the democrats that drove the Great Constitutional Debate during the 1990s transition from apartheid autocracy to non-racial democracy. Academics and politicians of all ideological and pigmentary hues spent countless hours trying to fashion from the mud of oppression a constitutional framework acceptable to the majority of South Africans.

And not just any off-the-peg solution, given that Africa is a continent where national constitutions have had a notoriously short life. With naive but refreshing optimism, erstwhile foes bickered and horse traded to craft a constitution that not only would establish the outlines of the contemplated New South Africa but also would be sturdy enough to absorb the rough and tumble that would inevitably occur in the future between this country’s fractious peoples.

The result, we have been endlessly reminded by the ANC government, is internationally admired as “the best constitution in the world”. Unfortunately, what the ANC can’t appear to get its head around, is that a beautiful constitution, like a beautiful architectural blueprint, is valueless unless it is used to build something.

And the ANC, as is now grimly apparent, has been far better at destruction than construction. No instructions are required.

Lamola, in his eagerness to let Sisulu off the hook, suggests that she was part of an important ongoing constitutional discourse. Heaven forbid.

The last thing we want is a time-wasting examination of how our constitutional innards might be impeding service delivery. No need for some kind of Great Constipational Debate, full of turgidity and flatulence.

Instead, we need a president and government that are aware that the problem lies in the execution of its mandate. And that the responsibility for that failure lies with the ANC, not with the Constitution. By implication, heads must roll.

However, it’s abundantly clear, under Ramaphosa — perhaps the most ineffectual leader South Africa has had — that is not going to happen. On Thursday, (20 January) issued a statement that appeared to vindicate his softly-softly approach. It read:

“Minister Sisulu conceded that her words were inappropriate. Minister Sisulu retracts this statement and affirms her support for the judiciary: ’I accept that my column has levelled against the judiciary and African judges in particular unsubstantiated, gratuitous and deeply hurtful comments. I retract unequivocally my hurtful comments. I recognise that many women and men judges past and present have served their country in the judiciary with dedication and patriotism and some have made sterling sacrifices in the fight against apartheid and colonialism. I apologise for and regret the hurt I have caused the judiciary.’”

Ramaphosa’s favourite manoeuvre, the “social compact”, in Sisulu’s case survived barely an hour. She issued her own statement and it was political dynamite:

“I wish to categorically disown this statement in its entirety as a misrepresentation of the said meeting I had with the President …. In such a meeting, he shared his challenge with one aspect of the article on the judges. The President proposed an intermediary that would focus on the one line about the judges to resolve that. I awaited such to be communicated which would do nothing to the entire article. Under no circumstances did I commit to any retraction or apology since I stand by what I penned. The content of the President’s statement in its current form is unfortunate as it is not what we agreed on. In this regard, I wish to distance myself from such.”

Nothing ambiguous here. It’s a throwing down of the gauntlet from the RET. After years of skirmishing with an endlessly elusive Ramaphosa, they are eager to join battle.

Ramaphosa has been consolidating his position in the ANC for four years now. This is the test of his preparation and strategy. Not only does he have to accept the challenge and rout Sisulu but it must be a sufficiently decisive victory to cow into submission the many RET supporters that remain in powerful positions in his administration and the party.

So, who will step onto the field of battle? Cyril the Lionheart or Cyril the Wimp?

Follow WSM on Twitter