ONE of the characteristics of immature democracies is a curious phenomenon: the development of personal fiefdoms within the state. In recent weeks we have seen this phenomenon really come to the fore, although in all honesty, many fiefdoms have been there all along.
What happens is that ministers and officials develop power far beyond the constitutional ambit of ministerial governance. Ministers become accountable to no one, really, as regards issues in their own little patch, and they begin making policy on the hoof, for personal and political reasons. In general they remain subject to the Cabinet and Parliament. There are bounds they cannot cross. But it’s easy to throw these institutions a bone, or divert their attention to more politically digestible topics. So long as they stay loyal to the president, stay within the broad thrust of government policy, and don’t overspend greatly, ministers’ powers become sizable.
Ministerial fiefdoms become visible when you start seeing light between the law and the decisions that are actually made. Alternatively, a gap appears between the government’s ostensible policy and what ministers actually do. This problem is developing into something close to chronic. Oddly, the president, in respect of his decision making or his own department, can be both head of state and also head of a private fiefdom. This seems contradictory, but when a president starts acting with contempt for the legal stipulations that notionally bind him, he is in effect acting as the head of a fiefdom rather than as a president.
This most obvious example this week was the Constitutional Court’s decision that President Jacob Zuma’s decision to employ his chommie and political devotee Menzi Simelane as national director of public prosecutions was illegal. This is an old debate, but its importance can’t be understated: this is an African National Congress-supporting court finding unanimously that the party’s own leader had not just made a mistake, but had treated a judicial stipulation with contempt.
What happened was that the Ginwala inquiry found that Simelane did not understand or have any respect for the constitutionally prescribed independence of the National Prosecuting Authority (NPA). It found that Simelane did not consider it improper for the justice minister to withdraw a prosecution, nor did he think the constitution guaranteed the independence of the NPA.
So Zuma, obviously fearing that he might be prosecuted again, came to a simple conclusion: this oke is my man! Simelane was appointed, and everybody rushed to the Constitutional Court. That judgment came down this week, and reading it is breathtaking.
The argument of Justice Minister Jeff Radebe was that the provision in the NPA Act requiring the appointment of "a fit and proper person, with due regard to his or her experience, conscientiousness and integrity" was not an objective standard. Hence the stipulation affords the president a wide discretion to decide for himself whether an appointee is fit and proper or not. And here is the best bit: this is so even when the proven facts suggest otherwise. This is the argument of a minister of justice no less. Amazing. Thankfully the court was quick to toss that one out.
Another example in the Presidency is the Nkandla-gate scandal. We all know Zuma is obsessed by his Nkandla residence. It was one of the main things he instructed his "financial adviser" Schabir Shaik to arrange way back in the 1990s. Now as president, he is in a position to steer public cash toward the project under the guise of "security". The revelations that the residence will now consume about R240m have been met with attempts to suppress the information using apartheid-era secrecy legislation. The R240m compares with the R23m that was spent on Nelson Mandela’s home in Qunu and the few hundred thousand rand being spent on former president FW de Klerk’s Cape Town home increasing the height of the walls.
Spending R240m is not a residence, it’s a palace.
Since the president is acting with only the barest concern for his technical or political obligations, it’s open season on other ministers doing the same. The Department of Public Enterprises is technically required to administer state-owned enterprises as a shareholder, not as a manager. But since the boards of almost all the state-owned enterprises have been fired and replaced for no particular reason, it’s safe to assume these boards are now marionettes, and the real business decisions are being made by the department.
If history is anything to go by, this will result in disaster. But the point is that this power grab signifies something more than an exercise of ministerial responsibility.
It’s not only the desire for more power that creates these policy collusions; it’s also ideology. I think everybody knows that Trade and Industry Minister Rob Davies is an old-styled communist who views capitalism as intrinsically and inescapably evil. Why anyone with that kind of outlook would even want to be a trade minister is astounding to me, but with the Zuma era’s swing to the left, presumably the left demanded a certain number of Cabinet posts, and trade and industry was among them.
Anyway, almost every document ever produced by the ANC about trade has always called for increased trade. The most explicit and recent example is National Development Plan which goes into great depth about trade development. It says everything you would expect and more: government and business co-operation is essential, trade needs to be focused on growth regions, and it endorses trade stimulation and protection. But it also supports bilateral treaties. Only one problem: South Africa has not signed any, and those it has, it now wants to undercut by scrapping the underlying trade agreements.
But the most egregious deviations from the general policy of the country and the ANC, I think for ideological reasons, was the publication last week of the new broad-based black economic empowerment (BEE) codes. The codes have been adapted in ways that are interesting but not particularly significant. But there is one significant addition: a new clause which makes it broadly impossible to get a high BEE score without "selling" a quarter of your equity.
What happens is that if you don’t comply with the equity element, and two other "priority" elements, you get downgraded by two ranks, regardless of the extent to which you comply with the other "pillars".
This clause is designed to undercut all the local and foreign companies that were trying to get a maximum BEE score by enhancing their compliance with the pillars other than equity. Supposedly, the ANC has been moving away from "get rich quick" BEE to a more modern notion of supporting broad-based BEE. That implied moving away from equity to the other "pillars": management control, employment equity, skills development, and procurement. Trust me: foreign companies, which like to own their subsidiaries, are going to hate this.
One of the most scary graphs in the National Development Plan document is South Africa’s share of exports as a proportion of global exports. In value terms, they dropped between 1990 and 2002, when they started rising again, one assumes because of the increase in the commodity prices. But in volume terms, they have just dropped like a stone. The total volume of trade has dropped 45% between 1994 and 2007.
The reasons for this decline are complex, but they include, I would bet, a preponderance of ministers with their own personal agendas.
IF it’s true that the creation of ministerial fiefdoms is a characteristic of developing nations, why is that so?
It’s certainly not true of autocracies, both left-and right-wing. Here, everything has to be cleared by the chief. In fact, the problem is often the opposite to ministerial fiefdoms: nobody dares do anything. The whole administration become sclerotic, because nobody really knows what the dictator wants and dare not do anything until they get some kind of explicit authority to move ahead.
Developed democracies also don’t seem to have this problem as much. Cabinet meetings have much more force and power and there is a powerful tradition of cabinet responsibility. I think it has to do with the fact that voters don’t vote in developing democracies necessarily on the basis of policy choices; they vote on the basis of affiliation.
It seems like a harsh thing to say, but it does seem that the nexus between policy choices and voting decisions is weak in developing democracies. Since the voting public doesn’t really care about policy choices, the politicians are not constrained to remain within them, whatever they are.
There is some contrary evidence. The ANC in South Africa has historically put an enormous amount of time and effort into "doing the right thing" and making the policy choices. We are almost deluged in policy documents from both the government and the ANC. Yet this is an exclusive process, confined essentially to party activists and loyalists.
Ultimately, talking about policy and putting it into practice are seemingly very distinct processes in South Africa, and that conforms to the notion.
JUST for fun, I did some back-of-the-envelope calculations on President Zuma’s Nkandla palace. It’s incredible that so much public money can be poured into a politician’s private residence; the acknowledged figure is now R240m.
But what I want to know is: what on earth are they going to spend it on? Building costs vary wildly depending on what you are building, but generally they are about R9,000/m². Assuming the government intends to spend all that money on buildings, they will end up with a building of about 26,000m². Obviously they are not intending to do that, but just for comparison’s sake, let’s imagine they do.
A 26,000m² property is about twice the ground-floor area of Buckingham Palace. It’s about the same ground-floor area as the Palace of Versailles, although both Queen Elizabeth’s digs and the Sun King’s palace are three storeys high. The Taj Mahal on its own, not the area which includes the four towers, is an eighth of the size of our imaginary palace. The point is that even if they build a monstrous palace, there is no conceivable building that can absorb more than half of that sum. So where is the rest of the money going?
• Cohen is contributing editor, and author of A Piece of the Pie: The Battle Over Nationalisation.