* Council for the Advancement of the South African Constitution
So, the businessman who was the first to bravely broach the subject of a political settlement for Jacob Zuma in the public arena in 2008 – when it was not fashionable to do so – is back on the front pages of our newspapers as a leader of civil society in defence of our constitution. You have to hand it to activist and business leader Sipho Pityana for reinventing himself far from the shadow of his brother Barney Pityana who shot to prominence at the back of the November convention two years ago.
The brothers would have been on the opposite ends of the pole when the national debate was reduced to how the ruling party intended to deal with the corruption charges facing the future head of state: a crucial constitutional matter.
Sipho Pityana fired the first salvo in September of 2008 literally calling on Zuma to be let off the hook in a muddled argument about the country’s stability. He wrote in the Mail and Guardian thus: “Would the prosecution of a sitting president not result in the kind of polarisation among criminal justice institutions that would make our country the playground of rogues and criminal elements?” This was clearly an argument crafted to undermine a straightforward process where all are equal before the law –otherwise known as the rule of law. Then came the lame caveat: “The dangers that come with seeking to change laws and institute special dispensations to deal with special circumstances are real.” It did not end there as he proceeded to the punchline….. “But to bury our heads in the sand and rigidly chase an oncoming train can be equally disastrous.”
So one is left only with the impression of constitutional obfuscation or is it a genuine desire to find a middle ground between clearly polarised positions on a hugely divisive issue?
His brother, respected Barney Pityana, was however a lot less nuanced at the November convention on November 1 2008, calling for leaders to take full responsibility. According to the Times Live, Barney Pityana said “there was a desperate need for a quality of leadership that has a moral consciousness embedded into them … and a leadership committed not just to themselves but first even above themselves to the well-being of the other.” He said that leadership has to be held accountable and must embrace and reflect the values of the people it seeks to represent- a clear reference to a position of no special favours to Zuma.
These two approaches to this issue makes it clear that the issues of the defence of the constitution will never be cut and dried. It is clear to me that this is why someone like Sipho Pityana who obviously is clear about the respect for the constitution even back then – was willing to explore options other than what he terms going against an oncoming train in the name of rigidity.
Today many can say to him trying to make sense of some of the tendency to bend the constitution by the ruling party is as good as going against a moving train. But he has now plucked up the courage to do so by leading what many see as the filling of the vacuum left by the demise of especially black opposition parties able to tackle the ANC.
Many commentators have argued that the only real opposition to the monolith that the ANC is will come from within. The dominance of ANC luminaries in Casac who themselves are not strangers to controversy is interesting as it may be dangerous to the course. The likes of Frene Ginwala who recently accused the ANC of deliberately undermining SCOPA and therefore parliament; the likes of Pikoli who are no strangers to speaking truth to power even if that got him fired; the likes of Kadar Asmal who has been shown the nearest grave by the MK Veterans and insulted by the firebrand Mbalula for daring to suggest that the ANC has lost its moral compass.
The role of these luminaries and more suggests that the only hope we have is the fixing of the ANC from within. I am not discounting the usual independent suspects such as Ramphele Mamphele, but one has to wonder why the luminaries thought it necessary to support and initiative that clearly points an accusatory finger at the ruling party. How do these loyal party members level such a serious accusation of endangering the constitution home – so much that you need such heavy weights in civil society to stand together and make their voices heard.
It is crucial however that if this initiative is to be taken seriously it must deal with the following ten matters currently threatening the constitution:
• The Media Tribunal: The council must oppose this terrible suggestion with all it can muster
• The Information Bill: This bill threatens to turn us into a secret society it must be rejected
• The truant judges: The judiciary will be the next target if it does not self correct.
• Disrespect of parliament: The recent political misconduct by the Minister of Defence is a symptom of things to come where the executive will run rough shod over parliament
• The undermining of chapter nine institutions: Kader Asmal must ask the question whatever happened to his report to streamline and strengthen these structures.
• The erosion of the NPA’s independence. The council must join in the reversal of Menzi Simelane’s appointment currently in front of the courts and being opposed by all sensible people.
• The systemic corruption: 2000 Civil servants have been recently fingered by SCOPA as having stolen 650 million Rands by doing business with themselves. Not a single one is in prison. There is something wrong there.
• Conflation of party and state. The council must support the mooted legislation that would deal with cadre deployment. Keeping the state and party separate is a good starting point to defend the constitution
• The council must support the prosecution of workers who strike in essential services but equally they must mount a campaign for the proper remuneration of civil servants to ensure that they should never resort to strikes that are fatal. The pursuit of second generation rights can defeat poverty.
• And finally should the issue of the prosecution of a sitting head of state arise. The council must not seek to skirt the issue like Sipho Pityana did in 2008 – they must reaffirm that no one is above the law and let the law take its course.
If Casac does not have the balls to confront the ruling elite in this way, it will go the way of the November convention and it will also earn itself a stanza from the powers that be as a ‘story told by an idiot full of sound and fury – signifying nothing’. Where the idiot is the luminaries whose gravitas has been wasted; where the sound and fury signifying nothing, is the stated intention to defend the constitution followed by no serious action while Rome continues to burn to the ground.