As the ANC's broad church continues breaking up, and the party is increasingly defined by an elite group of corrupt power brokers, many traditional ANC supporters (particularly those who might be considered part of the "intelligentsia") face an identity crisis: they cannot identify with what the ANC has become, but they just cannot make a clean break either.

They are nostalgic for "the moral high ground" -- a place the ANC once claimed exclusively as its own.  And so they look for ways to regain that comfort, without breaking ties with the ANC.

They believe that the ANC can be rescued from itself; they blame individuals in government for the ANC's failures but remain "loyal cadres" of the movement.  They seek refuge in other disillusioned activists and form various "social movements" in which they seek to recapture the social activism and mass politics of the UDF.  They criticise the government (most emphatically when it is a DA government). But at heart they remain loyal to what they believe the ANC once was and what, they trust, it can still become -- if only the right "cadres" could be deployed in key positions.

I know how this feels because I was once caught in this identity crisis myself.   I have long since given up the illusion that the ANC can be rescued from itself.  The ANC's dominant ideology of racial nationalism and political patronage is now so entrenched that it cannot be reversed by well-meaning individuals trying to resurrect the values of Nelson Mandela.

These thoughts struck me as I read the reaction to my criticism of the ANC's policy of "cadre deployment" to various institutions intended to be independent of the ruling party.  Among various "deployed cadres" I mentioned was Janet Love.  The ANC General Secretary recently announced that Ms Love had resigned from the ANC's National Executive Committee because she was being "deployed" to the Human Rights Commission, which he described as a "strategic" institution.

A group of lawyers, activists and academics sprang to Ms Love's defence, rejecting my critique on the grounds that Ms Love is a person of intelligence and integrity who had shown through her work in the Legal Resources Centre that she was prepared to challenge the ANC.

This letter was widely circulated and was carried by the Mail & Guardian, as was a separate article devoted to its contents.   The underlying message was clear:  if "good cadres" are deployed to strategic institutions, then "cadre deployment" is okay. "Good cadres" should be above criticism.  Nobody criticised my comments about former ANC MP and current Chairperson Lawrence Mushwana, for example, because they don't consider him a "good cadre."

This logical contradiction typifies the "identity crisis" I have described.  It was spotted by Anton Fagan, a law Professor at the University of Cape Town, who penned a rebuttal, which spread rapidly through various legal circles and eventually found its way to me through a lawyer in private practice.   It was also sent to the Mail & Guardian.  Instead of covering its key arguments, the Mail & Guardian, managed to bury them in the peripheral debate about whether a deployed cadre could be independent or not.

So in the interests of ensuring that all sides of this crucial debate are heard, I am pasting Prof Fagan's letter below.  In it, he responds to his academic colleagues' defence of Ms Love's deployment to the HRC.  I believe Prof Fagan's argument is irrefutable.  In ten years time, it will be regarded as conventional wisdom.

Helen Zille

Dear colleagues

Your letter in Friday's Mail and Guardian (22 October 2010) prompted me to read Ms Zille's original comments. Having done so, I must confess to finding your letter to be both mistaken and ill-judged. For what it's worth, here are my reasons for so concluding.

Your letter is mistaken, primarily, because it confuses the institutional with the personal. When it is alleged that a person's membership of an institution, or affiliation with an organisation, creates a conflict of interests, it is no response to point out that he is a person of virtue or that his record shows him to be impartial and fair-handed. So to respond is, in fact, to make what philosophers call a 'category error'.

It is the same with judicial independence. If it is so that the judiciary's independence (from the executive) is undermined by the appointment of senior prosecutors to the bench, then one cannot hope to justify such an appointment by extolling the appointee's integrity, or by pointing to his record of prosecuting government corruption. That is why the principle against such appointments would be violated no less by the appointment of Billy Downer as judge, than it was by that of Braam Lategan (or, by analogy, L C Steyn).

The same reasoning applies to the Human Rights Commission and Ms Love's appointment thereto. Your letter does not dispute the following of Ms Zille's allegations of fact: (1) that Ms Love recently resigned from the ANC's National Executive Committee and (2) that ANC Secretary-General Gwede Mantashe announced that Ms Love had been strategically deployed to the HRC by the ANC. Given this institutional background, how could anyone - with a straight face - argue that Ms Love's appointment to the HRC does not violate the principle against conflicts of interest and threaten the independence of the HRC? And again, remember that Ms Love's many virtues are irrelevant here - just as Mr Downer's would be to his appointment as a judge.

A second error is really just the flip-side of the first. Your letter assumes that, if one criticises an appointment on the kinds of institutional grounds described above, one by implication also criticises the person of the appointee: thus that Ms Zille is said to have done 'a grave injustice' to Ms Love. This, with respect, is a non sequitur. I can without self-contradiction argue that Mr Downer should not be elevated to the bench, because it would compromise the judiciary's independence, while maintaining that he is a man of great integrity who, but for his decision to pursue a career as a prosecutor, would have made a perfect judge.

A possible third error in your letter is its apparent assumption that, if one criticises an appointment on institutional grounds, one also criticises whatever institutions the appointee may have worked for in the past: thus that Ms Zille is said to have 'undermined the LRC'. This, it seems to me, is to draw a non sequitur from a non sequitur. If I oppose Mr Downer's appointment to the bench, must I also be taken to be attacking the NPA?

Why do I also believe your letter to be ill-judged? Because, given the standing of the signatories, it is bound to weaken a simple yet important principle, namely that persons with close ties to the governing party (and it does not get much closer than recently having been a member of the party's national executive committee) should not be appointed to statutory or constitutional bodies obliged, in part, to adjudicate conflicts between the governing party and others. If it were acceptable to appoint Ms Love to the HRC, in violation of this principle, why not also other members of the ANC's NEC to the Supreme Court of Appeal, or the Constitutional Court, or the much-discussed Media Tribunal?

In sum: on the facts stated by Ms Zille, and not controverted by your letter, Ms Love's appointment to the HRC was an instance of cadre deployment. If cadre deployment is a bad thing, then so was Ms Love's appointment, regardless of her personal strengths. It follows that Ms Love's appointment could not be defended, as your letter attempts to do, by singing her praises - but only by showing that cadre deployment is not a bad thing after all. Your letter, thankfully, does not go so far as to argue that cadre deployment is an acceptable practice. But it is likely to encourage those who believe that it is.

Ms Love, I am sure, is both good and worthy. But so is the principle against cadre deployment. It is a pity that your letter did not manage to explain the former without detracting from the latter.

Kind regards

Anton

ENDS

This article by Helen Zille was first published in SA Today, the weekly online newsletter of the leader of the Democratic Alliance

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