Red Alert: The mines, the media, the judiciary... an epidemic of misguided debates

This past weekend, the ANC's national executive committee received a comprehensive briefing on the report of the task team mandated to do in-depth, comparative research on possible state intervention in our minerals sector. The task team based its work on the ANC's 52nd ("Polokwane") national conference resolution. That resolution declared that a democratic developmental state "must ensure that our national resource endowments...are exploited to effectively maximize growth, development and employment potential embedded in such national assets, and not purely for profit maximization."

This resolution is surely the right general frame from within which to approach strategic research and an intelligent debate on radically transforming the mining sector in SA. Unfortunately, various protagonists sought to dumb down the matter into a myopic debate: "nationalization - for or against?" This debate was kicked off in 2008 - notably by personalities from within the ANCYL.

As the SACP pointed out at the time, what really lay behind the pseudo-radical "nationalisation" call was the desperation of heavily indebted BEE mining tycoons, paper billionaires, who were seeing the value of their shares erode under the impact of the global financial crisis. With due dates for repayment looming on their highly-leveraged share-holdings, they were soliciting buy-outs at public expense.

In the following years, a resurgent commodity boom in China and India helped generally to re-boost the value of mining shares, and some of the anxiety from the BEE tycoons subsided. But by this time the pseudo-nationalization debate, thanks to the media, had acquired its own runaway momentum.

It became the rallying call of a factionalist power play. It had little to do with mining or with the interests of mineworkers (as the National Union of Mineworkers was quick to point out) and everything to do with factional political ambitions. As the ill-disciplined demagogy and bullying from these quarters led to their deepening unpopularity from within the mainstream of the ANC, so the diversionary call for an ill-defined "nationalization of the mines" grew louder.

Things came to a gerrymandered head at the ANC's 2010 national general council, where the relevant economic commission was packed with Youth Leaguers. They had a single, one-line agenda: "nationalize the mines". While the youth leaguers could attempt to force a "nationalization resolution" through the artificially packed commission, they had no hope of forcing it through the thousands-strong plenary session. And so, on the final day of the NGC, an inelegant, patched-up job of a resolution was adopted.

The resolution reads: "There was greater consensus [greater than what?] in the commission [note, not in the plenary] on the nationalization of mines and other strategic sectors of the economy. The NGC therefore mandated the NEC to ensure further work be done [it doesn't specify 'work on nationalization' as such, although if you were so-minded, you could take it as implicit], including research, study tours and discussions, and to report to the Policy Conference for decision at the National Conference in 2012."

With time running out at the NGC, this wording was finally adopted. Its ambivalences allowed the Youth League to claim a victory (a solitary face-saving "victory" at the NGC, by the way) on the one hand, and others to assert categorically that the NGC had not supported nationalization. Yesterday, a NUMSA head-office statement once more repeated the Youth League claim that the ANC's NGC had resolved on nationalization -"the ANC NGC in 2010 was unanimous in support of the nationalization of mines". Really?

Quite frankly, bullying, spin-doctoring, and endless Talmudic disputes over the exact meaning of ambivalent resolutions are extremely unhelpful ways of approaching an incredibly important debate for the future of our country.

Meanwhile, the big mining corporations (those that have plundered our natural resources for over a century, reaping super-profits, devastating our countryside, polluting our ground water, and killing and maiming thousands upon thousands of workers) feigned horror at the talk of nationalization.

But they would have been secretly pleased that, at least, the debate for-and-against was being framed in this mindlessly narrow way. It would foreclose, so they hoped, any comprehensive and multi-faceted approach to the determined use of state power to leverage our mineral resources for sustained development. They would have known that any across-the-board nationalization would be unworkable, and that all that would be nationalized would be a massive public debt.

Fortunately, the ANC's task team report ("Maximising the developmental impact of the people's mineral assets: state intervention in the mineral sector") marks a radical break from any sloganeering, myopic for-or-against approach. At the time of writing this column, the ANC had not yet released the document publicly, and, although it has been leaked widely to the media, I will refrain from dealing with it in any detail here.

It is, of course, not yet ANC policy, nor has the SACP had the opportunity to be presented with it and to discuss it collectively - something which we are planning to do in the near future. Suffice to say that it is an extremely well researched document that will lay the basis, finally, for a comprehensive policy and programme of action to transform this critical sector of our economy.

The judiciary - "them" and "us" - another wrongly framed debate

Over the last several months, some clumsy statements by individual comrades in our movement (advancing strictly personal opinions -which may or may not have also been misrepresented) opened the way for another unhelpful and wrongly framed debate. Sections of the media and opposition parties have grasped at these statements with delight.

The ANC-led movement is said to be against our current Constitution and hell-bent on undermining the independence of the judiciary. The usual, anti-majoritarian conservatives have jumped onto the band-wagon, parading our hard-won Constitution as if it were a narrow 19th century liberal document designed simply to limit the state and protect their private property.

The former chief justice, Arthur Chaskalson recently made a very important intervention into this general debate. Chaskalson (who, by the way, was an SACP delegate to the CODESA constitutional negotiations back in 1991) was speaking at a UCT law workshop in late January. Quoting extensively from the preamble to the Constitution and from landmark Constitutional Court judgments, Chaskalson lucidly debunks the notion that the Constitution is somehow an impediment to radical transformation.

He correctly traces its origins to the traditions of the liberation struggle itself, including the 1955 Freedom Charter and the 1989 Harare Declaration. Chaskalson goes on to argue that the Constitution, far from simply limiting the state, places an obligation on the executive to actively transform our society.

The Constitution, he says "calls for positive action to confront the apartheid legacy of poverty and disempowerment, and for building a truly non-racial society committed to social justice. Transformation contemplates an improvement in the lives of people, households and communities, achieved over time by institutionalising policies, programmes and projects to that end."

So far - so good. In fact, so far - excellent. Chaskalson goes on to concede that: "There may be particular cases where judges have done or refrained from doing something that legitimately attracts the displeasure of the executive. Usually such matters can be corrected, but even if that is not possible, this does not warrant an attack on the judiciary as an institution."

Again, he is surely correct...but this last sentence begins to beg an obvious question. What happens if, let us say, the Constitutional Court rules in favour of the conservative white agricultural unions currently challenging the constitutionality of the Mineral and Petroleum Resources Development Act? This Act made the mineral resources in the ground the property of all South Africans, with the state acting as custodian.

The farmers, some of whom might happen to own land on top of minerals, want, of course, to claim that these minerals are their personal property (as previously recognized in our archaic colonial laws). It is unthinkable that the Constitutional Court could find in favour of white farming interests in this case. Such a decision would fly in the face of the spirit and letter of the Bill of Rights, including the property clause itself. But judges are human, and some in the Constitutional Court have been expressing privately, decidedly anti-ANC and anti-executive sentiments.

I raise these points not to attack the judiciary as an institution, or to query its necessary independence, but to remind ourselves that the judiciary (like the executive) is peopled by potentially fallible human beings, not demigods. How do we ensure, as much as possible, that we put in place institutions and systems that promote conduct by judges that is transparent and above reproach?

What happens if a Constitutional Court judge is in a consortium with commercial farmers sitting on mineral deposits? I have absolutely no reason whatsoever to believe that this is the case...but the current reported reluctance of the judiciary to make declarations of their business interests on the spurious grounds that it will undermine the independence of the institution doesn't inspire confidence.

The executive in its actions is answerable to the Constitution. Parliament's laws are subject to judicial review. But the judiciary is also obliged to remain true to the letter and spirit of the Constitution, even Constitutional Court judges who are, yes, players and referees in this area. How, do we ensure that the institution of the judiciary is peopled by individuals who continue to foster the transformational vision so well articulated by former Chief Justices like Ismail Mahomed and Arthur Chaskalson?

And this is where there seems to me to be a slippage in Chaskalson's otherwise inspiring lecture. As we have seen, when referring to the spirit of the Constitution, Chaskalson uses the concept "transformation" in its radical sense of a comprehensive and systemic political, social and economic change.

But when he comes to countering the allegation that the judiciary is "untransformed" he slips into that narrowest of meanings. He does a racial and gender quota head-count. Of course, achieving more balanced representivity in key positions of authority and power is not irrelevant, but, as we know from the bitter experience of narrow BEE - cosmetic changes at the top may be a distraction from the task of sustained transformation across the system itself.

So long as these debates are framed in "us" and "them" terms, as the ANC vs. the Constitution, or the Executive vs. the Judiciary, we will not make much progress. In fact, we will simply play into the hands of all those reactionaries who seek to dumb down the Constitution, and perpetuate a still largely untransformed South Africa.

Asikhulume!!

This article by SACP deputy general secretary Jeremy Cronin first appeared in the Party's online journal, Umsebenzi Online.

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